Wilkinson v. Grey

Per Curiam. This was an action of trespass quare clausum fregit, brought by Josiah Grey, the defendant in error, against James Wilkinson. It was referred to arbitrators, who awarded in favour of the plaintff one dollar and the costs of suit. The defendant contended, that the plaintiff was not entitled to more [346] costs than the amount of the damages awarded by the arbitrators? viz. one dollar; but the Court of Common Pleas gave judgment for all the costs? and that is the error complained of. This very point was decided by this court in the case of Hinds v. Knox, 4 Serg. & Rawle, 417. It was there held, that if the jury give damages'under forty shillings and full costs? in trespass guare clau-sum fregit? judgment shall be entered for full costs. The case of Lewis v. England, 4 Binn. 11, on which the defendant’s counsel relies, was quite different. There the defendant appealed from the judgment of a justice of the peace, in which case it is provided by an act of assembly, that the defendant shall not be liable to costs, where less is recovered by the plaintiff on the appeal than the amount, of the judgment rendered by the justice, (unless the defendant produces new evidence.) It was decided, that neither a jury nor arbitrators can give costs, in the face of this act of assembly? where the damages found for the plaintiff are less than the sum recovered before the justice. The case of Hinds v. Knox has not been questioned? and we consider it as decisive of the point now before us. It is to be remarked, too, that the principle of that case appears to have been approved of by the legislature. For by the act of the 13th of February, 1816, 6 Sm. L. 323, it was enacted, that in all actions for the recovery of damages, for any trespass committed against real or personal estate before any justice of the peace or alderman, and referred agreeably to law, the referees should be empowered, in addition to their report of the damages, to decide and report whether the plaintiff or defendant should pay the costs of such action, or in what proportion they should be paid by the plaintiff or defendant respectively, &e. It is the opinion of the court, that the judgment should be affirmed. Judgment affirmed.