prepared, could have answered; one main reason for denying the motion was, that the plaintiff suffered a verdict to be given, when he might have been nonsuited, which I mention as a caution in cases of the like kind.-Richards v. Syms, 1742. (Vide Spong v. Hog, and other cases in a note, ante, 326 a.) New trials are often granted for the misbehaviour of the jury, as if they cast lots for their verdict; or if any of them declare, that the plaintiff or defendant shall not have a verdict, * let him produce what evidence he will. So if they eat at his expence for whom they give the verdict, &c. (See the note on this point, ante, 326 a.) The court will not grant a new trial, because the defendant came unprepared, even though it be in a matter which it was impossible for him to foresee, ex. gr. Where a witness was produced to prove a fact committed at Canterbury, who could be proved at the time to be at another place.-Walker v. Scott, H. 23 Geo. II. In actions founded upon torts, the jury are the sole judges of the damages, and therefore in such cases the court will not grant a new trial on account of the damages being trifling or excessive. But in actions founded upon contract, and where debt would lie, (and before Slade's Case, 4 Co. 92, would have been brought) the court will enquire into the circumstances of the case, and relieve if they see reason.--. -Markham y. Middleton, T. 29 Geo. II. (reported 2 Stra. 1259, but not S. P.) Upon a motion for a new trial, the way is to grant a rule to shew cause, and then the puisne judge of the court speaks to the judge who tried the cause, (if it be not one of the same court) and obtains a report from him of the trial, and also a signification of what his sentiments are upon it. If the judge declare himself satisfied with the verdict, it hath been usual not to grant a new trial on account of its being a verdict against evidence. On the other hand, if he declare himself dissatisfied with the verdict, it is pretty much of course to grant it. But in a case where the judge only reported evidence, without declaring himself to be satisfied or dissatisfied with the verdict, the court of K. B. were under a difficulty how to behave; however they seemed inclined to hear it spoken to; but through their interposition the parties agreed to abide by the determination of the point of law.-Rex v. Phillips, 23 Geo. II. A new trial may also be moved for on account of the misdirection of the judge in a matter of law, or for his admitting or refusing evidence contrary to law.-(Vide note, ante, 326a.) So [ *327] So the want of due notice is a proper ground for a motion for a new trial; but the defendant is precluded, if he appear at the assizes and make defence.-Thermolin v. Cole, H. 1696. Salk. 646. Note; That in giving notice of trial according to the distance of place, the miles must be by reputation and not admeasurement.-Bates v. Pettifer, M. 1733. Though the usual method is to grant a new trial upon payment of [*328] costs, where it is a verdict against evidence; yet under particular circumstances it may be granted without costs, as where an action was brought on two bills of exchange payable to A. B. or order, one of them being indorsed to the plaintiff, the other to J. S. without adding or order, and by him indorsed to the plaintiff, wherefore the jury found for the plaintiff, on the first bill, and for the defendant on the second; apprehending that by the usage of merchants, it was not assignable by J. S. without the words or order. On motion a new trial was granted without costs, because the plaintiff (if the verdict were to stand) would be entitled to costs.-Edie and Laird v. East India Company, T. 1 Geo. III. 2 Burr. 1216. 1 Bla. 295. (a) A material witness for the defendant concealed himself in the plaintiff's house, to avoid being served with a subpoena, by which means the plaintiff obtained a verdict, but the court set it aside without costs, it being unreasonable for the plaintiff to carry the cause down to trial, when she knew the defendant could not make a defence.-Montpesson v. Randle, H. 20 Geo. II. (a) As to the costs, it was formerly the rule to grant a new trial only upon the merits, and on payment of costs, except in particular cases, but now it is generally held to be in the discretion of the court. Still, how ever, (as has been already shewn in the preceding note) the court will grant a new trial, without costs, where the judge mistakes the law, or the jury find a verdict contrary to his direction, or the plaintiff refuses to become nonsuited contrary to the judge's opinion, and a verdict is found for him; or where a verdict is properly given for the plaintiff on one count, and improperly against him on another; or where a verdict has been obtained by concealing an adversary's witness, or by any other artifice or trick. In B. R. if a new trial be granted, and nothing is said about the costs of the former, and the same verdict is given, the costs of the second only are allowed. Mason v. Skurray, Dougl. 421 (438.) Schulbred v. Nutt, ibid. in notis. Hankey v. Smith, 3 T. R. 507. But in C. B. if two concurrent verdicts are given, the successful party is allowed the costs of both trials, but if the second verdict differs from the first, then of the second only. Parker v. Wells, H. Bla. 639, (n.) Trelawny v. Thomas, H. Bla, 641. CHAPTER CHAPTER VIII. OF COSTS. THE statute of Gloucester, 6 Ed. I. c. 1, is the first statute in relation to costs; by which in an assize, &c. damages upon the insufficiency of the disseisor are given against him that is found tenant, and damages are given in a writ of mort d'ancestor, aiel, &c. reciting, that whereas hefore that time, damages were not taxed but to the value of the issues of the land, it is provided the demandant may recover the costs of his writ against the tenant, together with his damages, and that this act shall hold place in all cases where the party is to recover damages. Where a man before, or by this act did not recover damages, though simple, double, or treble, are given by a subsequent act, the plaintiff shall recover no costs; as in quare impedit; decies tantum: So in an action upon 5 Edw. VI. c. 14, of ingrossers: but in all cases where damages were recovered before, or by this act, the plaintiff shall recover his costs also.-2 Inst. 288. (a) This was the original of costs de incremento; (b) but as there are [829] several statutes since made, I shall consider them in order. I. As to the plaintiff's costs. II. As to the defendant's costs. III. As to costs in waste, tithe, scire facias, and prohibitions. V. As to costs in traverses. VI. As to double or treble costs. VII. How to be assessed in such cases. VIII. Costs on a special jury. I. Where the plaintiff shall have no more costs than damages. By 43 Eliz. c. 6. If upon actions personal, not being for any title or interest of lands, nor concerning the freehold or inheritance of any lands, nor for any battery, it shall be certified by the judge before whom it shall be tried, that the debt or damages to be recovered therein do (a) The statutes, however, must be strictly construed, for the costs are a kind of penalty. Cone v. Bowles, Salk. 205. (b) Which may be doubled, as well as costs given by the jury. Smith q. t. v. Dunce, 2 Štra, 1048. not not amount to 40s. the plaintiff shall have no more costs than damages.(a) By 21 Jac. I. c. 16. If the damages be under 40s. in actions on slander, the plaintiff shall have no more costs than damages. By 22 & 23 Car. II. c. 9. In all actions of trespass, assault, and battery, and other personal actions, wherein the judge at the trial shall not certify that an assault and battery was sufficiently proved, or that the freehold or title of the land was chiefly in question, if the jury find damages under 40s. the plaintiff shall recover no more costs than damages. Declaration was, that the defendant made an assault on the plaintiff, and then and there pushed him down on the ground, the said ground being covered with water, and thereby wetting and spoiling his coat, whereby he became sick and weak, &c. after verdict for the plaintiff for 20s. there being no certificate, the court on motion held the plaintiff not entitled to full costs, for the wetting of the cloaths is not a distinct thing from the assault, but is laid as a consequence of it; it is an injury arising from the original cause of action.-Hamson v. Adshead, T. 27 Geo. II. K. B.-S. C. Say. 53. Note; On writs of inquiry in cases within this statute, the plaintiff shall have full costs, though he do not recover so much as 40s. damages.-Sheldon v. Ludgate, C. B. T. S Geo. I. (b) From the wording this statute of 22 & 23 Car. II. it has been holden to extend to no other personal action than such as relate to the freehold, or things fixed to the freehold, i. e. only to such cases where the freehold may by presumption come in question. (c) Therefore in trover or trespass de bonis asportatis, of goods not fixed to the freehold, the plaintiff shall have his full costs. (a) Therefore where, in trespass for chasing a bull, and plaintiff recovered 18. only, held he shall have no more costs. Thompson v. Berry, 1 Stra. 551. So where plaintiff recovered less than 40s. for beating his dog. Dand v. Scaton, 3 T. R. 37. So where plaintiff recovered less than 40s. against defendant for hunting as a dissolute person, contrary to 4 & 5 W. & M. having failed to prove defendant dissolute, though trespassing, he shall have no more Pallant v. Roll, 2 Bla. 900. (b) But if defendant lets judg costs. (Ven v. Philips, E. 1704. Salk. ment go by default, or justifies the assault and battery, his damages will recover the costs. If he justifies the assault only, or the assault only is certified, if he recover less than 40s. he shall have no more costs than damages. Smith v. Neesam, 2 Lev. 102. Page v. Creed, 3 T. Rep. 391. (c) Vide Batchelor v. Bigg, 3 Wils. 330, where it was held that trespass found upon a personal chattel is clearly out of this statute. Per Bur net, J. 208.) 208.) (a) So in trespass quare clausum fregit, and impounding his cattle, because the impounding is a personal injury, but then the defendant must be found guilty of the impounding. (b) * But where an action of trespass was brought for breaking and entering the plaintiff's close, and cutting down, lopping, and spoiling trees there growing; and the plaintiff recovered a verdict, and two-pence [330] damages; it was holden he was intitled to no more costs than damages.Hill v. Reeves, E. 3 Geo. I. C. B. So in trespass for breaking and entering a house, breaking down the window shutters, and breaking to pieces and spoiling the bolt belonging to the window shutters; the plaintiff obtained a verdict, and one shilling damages, and held he was intitled to no more costs.-Birch v. Daffey, C. B. Tr. 3 Geo. II. So in trespass for breaking and entering a dwelling-house and making a great noise there, and continuing there until the plaintiff and another person were compelled to give and did give their note for £6, the plaintiff is intitled to no more costs than damages.-Appleton v. Smith, K. B. Hil. 2 Geo. III. 3 Burr. 1282. (c) Where the cause originally began in an inferior court, and was removed into K. B. or C. B. the plaintiff shall have his full costs, though the damages under 40s. and no certificate.-Roop v. Scritch, H: 6 W. III. 4 Mod. 379. (d) There needs no certificate where it appears by the pleading that the interest of the land is in question, as where a view is granted. (Kempster v. Deacon, E. 8 W. III. 1 Raym. 76.) Cockerill v. Allanson, K. B. T. 22 Geo. III. adjudged that where defendant justified for a right of way, and the plaintiff replied extra viam, and the defendant pleaded not guilty, the plaintiff should have no more costs than damages, un (a) The asportation of personal property entitles the plaintiff to full costs, though complained of in the same declaration as a trespass, but no more costs than damages were allowed for digging peat, and carrying away the same, the asportation being only a mode and qualification of the injury to the land. Clegg v. Molyneux, Dougl. 749, (780.) (b) So in trespass quare clausum fregit, if defendant plead not guilty, and a justification which does not make title to the land, and plaintiff recovers under 40s, he shall have full costs. Peddle v. Kiddell, 7 T. R. (c) So for throwing stones at and judge certifies that the title of the (d) And so it has been held in an less |