COSTS. 
ble; as in wafte againft tenant for life or years; 2 Hen. 
IV. 17. 9 Hen. VI. 66. upon the flatute of Gloucefler, 
6 Edw.I. c. 5, for not fetting out tithes; 2 & 3 Edw. 
VI. c. 1 3; or for driving a diftrefs out of the hundred, 
s & 2 P . Sc M. Nor does this flatute extend to popu¬ 
lar adtions, where the whole or part of a penalty is given 
by flatute to a common informer ; as 5 Eliz. c. 4. for 
exercifing a trade, without having ferved an apprentice- 
fhip ; or upon the flatute of ufury, 12 Anrie, 2. c. 16. 
In thefe and fuch like cafes, therefore, the plaintiff is not 
entitled to cofts, unlefs they are exprefsly given him by 
the flatute ; but wherever they are fo given, he is of 
courfe entitled to them. 
Where fmgle damages are given by a flatute, fubfe- 
quent to the flatute of Gloucefler, in a new' cafe wherein 
no damages were previoully recoverable, it has been 
doubted whether the plaintiff fliall recover cofls, if they 
are not mentioned in the flatute. The rule in Pilfold’s 
cafe is, that he fliall not, and accordingly it has been 
holden, that he is not entitled to cofts in quare impedit. 
1 Hen. IV. c. 17. 27 Hen. VI. c. 10. 13 Edw. I. c. 5. 
But the rule in Pilfold’s cafe is contradicted by lord 
Coke himfelf, 2 Inft. 289, who fays, that this claufe, 
refpedting the flatute of Gloucefter’s holding place in all 
cales where a man recovers damages, doth extend to 
give cofts, where damages are given to any demandant 
or plaintiff in any adtion, by any flatute made after this 
parliament. And the rule has been fince narrowed, by 
feveral modern decifions ; from whence it may be col¬ 
lected, that the plaintiff is entitled to cofls in all cafes 
where Tingle damages are given by flatute to the party 
grieved, although cofts are not particularly mentioned 
in the flatute. 2 Wilf. 91. 3 Bur. 1723. 1 Term Rep. 71. In 
feveral of the foregoing cafes, wherein cofts were not 
recoverable by the plaintiff at common law, they are 
exprefsly given him by 8 & 9 Will. III. c. n. by which 
it is enadted, that in all adtions of wafte, and actions 
of debt upon the flatute for not fetting forth tithes, 
wherein the fingle value or damage found by the jury 
fhall not exceed the fum of twenty nobles ; and in all fuits 
upon any writ or writs of feirefacias , and fuits upon pro¬ 
hibitions, the plaintiff obtaining judgment, or any award 
of execution, after plea pleaded or demurrer joined 
therein, fliall likewife recover his cofts of fuit; and if 
the plaintiff fliall become nonfuit, or fuffer a difeontinu- 
ance, or a verdidt fliall pafs againft him, the defendant 
fliall recover his cofls, and have execution for the fame 
by capias adfatisfaciendum, fierifacias, or elegit. 
The plaintiff’s general right to cofts being thus fettled 
and eftablifhed, upon the footing of the flatute of Glou- 
cefter, it has been fince altered, reflrained, and modi¬ 
fied, by feveral fubfequent flatutes. To prevent trifling 
and malicious adtions for words, for affault and battery, 
and for trefpafs, it is enadted by 43 Eliz. c. 6. 21 Jac. 
I. c. 16. 22 & 23 Car. II. c. 9. that where the jury who 
try any of thefe adtions fhall give lefs damages than forty 
fliillings, the plaintiff fliall be allowed no more cofls 
than damages ; unlefs the judge before whom the caiife 
is tried, fliall certify under his hand, on the back of the 
record, that an adtual battery, and not an affault only, 
was proved ; or that in trefpafs the freehold or title of 
the land came chiefly in queftion. Alfo by 4 & 5 Will. 
Sc Mary, c. 23. 8 Sc 9 Will. III. c. 11. if the trefpafs 
were committed in hunting or Jporting, or if it appear to 
be wilfully and malicioufly committed, the plaintiff 
fhall have full cofls, though his damages, as affeffed by 
the.jury, amount to lefs than fort-y (hillings,, The legif- 
lature has alfo been obliged to interfere (till further, to 
guard againft trifling and vexatious adtions, by means of 
what are commonly called the Court-f-confidence Ads: 
Such are 3 Jac. I. c. 15. 14 Geo. II. c. 10. See. which 
provide that if an adtion be brought for lefs than forty 
(hillings, againft a defendant living in London, or in any 
other jurifdidtion where Courts-of-confcience are eredted, 
and liable to be fued therein,the plainUjf fliall not reco- 
Vot.. V. No. 270. 
Go 7 
ver any cofts in the fuperior fcourts, but fhall pay them 
to the defendant. 
The principal flatute made for reftraining the plain¬ 
tiff’s right to cofts, is 22 & 23 Car. II. c. 9. extended 
to Wales, and the counties palatine, by 11 & 12 Will. 
III. c. 9. by which it is enadled, that in all adtions of 
trefpafs, affault and battery, and other perfonal adlions, 
wherein the judge at the trial of the caufe, fhall not.find 
and certify under his hand, upon the back of the record, 
that an affault and battery was fufficiently proved by the 
plaintiff againft the defendant, or that the freehold or 
title of the land mentioned in the plaintiff’s declaration 
was chiefly in queftion; the plaintiff, in cafe the jury 
fliall find the damages to be under the value of forty 
(hillings, fliall not recover or obtain more cofts of fuit 
than the damages fo found fhall amount unto, ft feems 
to have been the intention of this flatute, that the plain¬ 
tiff' fliall have no more cofts than damages, in any perfon¬ 
al adtion whatfoever, if the damages be under forty 
(hillings, except in cafes of battery or freehold ; and not 
even in thefe without a certificate; and this, conftruc- 
tion was adopted, in fome of the firft cafes that arofe 
upon the flatute. 3 Kcb. 121, 247. But a different ccn- 
ftrudlion foon prevailed ; and it is now fettled, that the 
flatute is confined to actions of affault and battery, and 
adtions for local trefpalfes, wherein it is poflible for the 
judge to certify, that the freehold or title of the land 
was chiefly in queftion. Therefore it does not extend 
to adtions of debt, covenant, affumpfit, trover, or the 
like; or to actions for a mere affault; or for criminal con- 
verfation; or battery of the plaintiff’s fervant. In all 
thefe cafes, though the damages be under forty fliillings, 
the plaintiff is entitled to full cofts without a certificate. 
The certificate required by this flatute need not, it 
feems, be granted at the trial of the caufe. 11 Mod. 198. 
And where the defendant lets judgment go by default, 
Bull. N. P. 329. or juftifies the affault and battery, or 
pleads in fuch a manner as to bring the freehold or title 
of the land in queftion, on the face of the record, or a 
view is granted, a certificate is holden to be unneceffary; 
but it is neceffary, where, to a plea of a right of way, 
there is a replication of extra viam. Cochran v. Harrifion , 
T. 22 Geo. III. But where in an action for an affault and 
battery, the defendant juftifies the affault only, or an 
affault only is certified by the judge, the plaintiff, reco¬ 
vering lefs than forty (hillings, is not entitled to more 
cofts than damages; though, in the latter cafe, to enti¬ 
tle him to full cofls, the judge may certify, 8 & 9 Wiil. 
III. c. 11. that the affault was wilful and malicious. 
None of the flatutes, made for reftraining the plaintiff’s 
right to cofls, extend to adlions brought in an inferior 
court, and removed by the defendant into a fuperior one : 
and it has been holden, that 21 Jac. I. c. 16. and 22 & 23; 
Car. II. c. 9. only reftrain the court from awarding 
more cofts than damages; but the jury, not being re- 
ftrained thereby, may give what cofls they pleafe. 
It often happens that there are feveral counts or pleas, 
the iffues upon which are fome of them found for the 
plaintiff’, and fome for the defendant. In this cafe, in 
the court of common pleas, where the declaration con- 
fi(Is of feveral counts, and the plaintiff fucceeds upon 
any one of them, he is entitled to the cofts of the whole 
declaration, though the defendant fucceed upon the 
other counts. But it is othervvife in the court of king’sl 
bencli; for there, neither party is allowed cofls as to 
thole counts the iffues upon which are found for the de¬ 
fendant. But if there be two diftindt caufes of adtion, in 
two feparate counts, and as to one the defendant fuller's 
judgment to go by default, and as to the other takes 
iffue, and obtains a verdidt, he is entitled to judgment 
for his cofts on the latter count, notwithflanding the 
plaintiff is entitled to judgment and cofts on the firft 
count. 3 Term Rep. 634. 
As to the certificate, 4 Anne, c. 16. allowing d nible 
pleas, and cofts thereon, where the' judge refufes to 
3 U ' grant 
