Front Page Titles (by Subject) CHAPTER XXIV.: OF JUDGMENT AND ITS INCIDENTS. - Commentaries on the Laws of England in Four Books, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XXIV.: OF JUDGMENT AND ITS INCIDENTS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF JUDGMENT AND ITS INCIDENTS.
**386]In the present chapter we are to consider the transactions in a cause, next immediately subsequent to arguing the demurrer, or trial of the issue.
If the issue be an issue of fact, and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially; or if the plaintiff makes default, or is non-suit; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a postea.(a) The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attorneys at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff, after the jury sworn, made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea.1
Next follows, sixthly, the judgment of the court upon what has previously passed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment **387]may, however, for certain causes be suspended, or finally arrested: for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of justice happened at the trial, by surprise, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the complaint was either not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it by arresting or staying the judgment.
1. Causes of suspending the judgment, by granting a new trial,2 are at present wholly extrinsic, arising from matter foreign to, or dehors the record. Of this sort are want of notice of trial; or any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehaviour of the jury among themselves: also if it appears by the judge’s report, certified by the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith;(b) or if they have given exorbitant damages;(c) or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict: for these, and other reasons of the like kind, it is the practice of the court to award a new, or second, trial. But if two juries agree in the same or a similar verdict, a third trial is seldom awarded:(d) for the law will not readily suppose that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones.
The exertion of these superintendent powers of the king’s courts, in setting aside the verdict of a jury and granting a new trial, on account of misbehaviour in the jurors, is of a date extremely antient. There are instances, in the yearbooks of the reigns of Edward III.,(e) Henry IV.,(f) and Henry VII.,(g) of judgments being stayed (even after a trial at bar) and **388]new venires awarded, because the jury had eat and drank without consent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. And upon these the chief justice Glynn, in 1655, grounded the first precedent that is reported in our books(h) for granting a new trial upon account of excessive damages given by the jury: apprehending, with reasor, that notorious partiality in the jurors was a principal species of misbehaviour. A few years before, a practice took rise in the common pleas,(i) of granting new trials upon the mere certificate of the judge (unfortified by any report of the evidence) that the verdict had passed against his opinion; though chief justice Rolle (who allowed of new trials in case of misbehaviour, surprise, or fraud, or if the verdict was notoriously contrary to evidence)(k) refused to adopt that practice in the court of king’s bench. And at that time it was clearly held for law,(l) that whatever matter was of force to avoid a verdict ought to be returned upon the postea, and not merely surmised by the court; lest posterity should wonder why a new venire was awarded, without any sufficient reason appearing upon the record. But very early in the reign of Charles the Second new trials were granted upon affidavits;(m) and the former strictness of the courts of law, in respect of new trials, having driven many parties into courts of equity to be relieved from oppressive verdicts, they are now more liberal in granting them: the maxim at present adopted being this, that (in all cases of moment) where justice is not done upon one trial, the injured party is entitled to another.(n)
Formerly the principal remedy, for reversal of a verdict unduly given, was by writ of attaint; of which we shall speak in the next chapter, and which is at least as old as the institution of the grand assize by Henry II.,(o) in lieu of the Norman trial by battle. Such a sanction was probably thought **389]necessary when, instead of appealing to Providence for the decision of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our ancestors saw that a jury might give an erroneous verdict, and, if they did, that it ought not finally to conclude the question in the first instance: but the remedy, which they provided, shows the ignorance and ferocity of the times, and the simplicity of the points then usually litigated in the courts of justice. They supposed that, the law being told to the jury by the judge, the proof of fact must be always so clear, that, if they found a wrong verdict, they must be wilfully and corruptly perjured. Whereas a juror may find a just verdict from unrighteous motives, which can only be known to the great Searcher of hearts: and he may, on the contrary, find a verdict very manifestly wrong, without any bad motive at all; from inexperience in business, incapacity, misapprehension, inattention to circumstances, and a thousand other innocent causes. But such a remedy as this laid the injured party under an insuperable hardship, by making a conviction of the jurors for perjury the condition of his redress.
The judges saw this; and therefore very early, even upon writs of assize, they devised a great variety of distinctions, by which an attaint might be avoided, and the verdict set to rights in a more temperate and dispassionate method.(p) Thus, if excessive damages were given, they were moderated by the discretion of the justices.(q) And if, either in that or in any other instance, justice was not completely done, through the error of either the judge or the recognitors, it was remedied by certificate of assize, which was neither more nor less than a second trial of the same cause by the same jury.(r) And, in mixed or personal actions, as trespass and the like, (wherein no attaint originally lay,) if the jury gave a wrong verdict, the judges did not think themselves warranted thereby to pronounce an iniquitous judgment; but amended it, if possible, by subsequent inquiries of their own; and, if that *[*390could not be, they referred it to another examination.(s) When afterwards attaints, by several statutes, were more universally extended, the judges frequently, even for the misbehaviour of jurymen, instead of prosecuting the writ of attaint, awarded a second trial; and subsequent resolutions for more than a century past have so amplified the benefit of this remedy that the attaint is now as obsolete as the trial by battle which it succeeded: and we shall probably see the revival of the one as soon as the revival of the other. And here I cannot but again admire(t) the wisdom of suffering time to bring to perfection new remedies, more easy and beneficial to the subject, which by degrees, from the experience and approbation of the people, supersede the necessity or desire of using or continuing the old.
If every verdict was final in the first instance, it would tend to destroy this valuable method of trial, and would drive away all causes of consequence to be decided according to the forms of the imperial law, upon depositions in writing, which might be reviewed in a course of appeal. Causes of great importance, titles to land, and large questions of commercial property come often to be tried by a jury, merely upon the general issue, where the facts are complicated and intricate, the evidence of great length and variety, and sometimes contradicting each other, and where the nature of the dispute very frequently introduces nice questions and subtleties of law. Either party may be surprised by a piece of evidence which, had he known of its production, he could have explained or answered; or he may be puzzled by a legal doubt which a little recollection would have solved. In the hurry of a trial, the ablest judge may mistake the law and misdirect the jury; he may not be able so to state and range the evidence as to lay it clearly before them, nor to take off the artful impressions which have been made on their minds by learned and experienced advocates. The jury are to give their *[*391opinion instanter; that is, before they separate, eat, or drink. And under these circumstances the most intelligent and best-intentioned men may bring in a verdict which they themselves upon cool deliberation would wish to reverse.
Next to doing right, the great object in the administration of public justice should be to give public satisfaction. If the verdict be liable to many objections and doubts in the opinion of his counsel, or even in the opinion of bystanders, no party would go away satisfied unless he had a prospect of reviewing it. Such doubts would with him be decisive: he would arraign the determination as manifestly unjust, and abhor a tribunal which he imagined had done him an injury without a possibility of redress.
Granting a new trial, under proper regulations, cures all these inconveniences, and at the same time preserves entire and renders perfect that most excellent method of decision which is the glory of the English law. A new trial is a rehearing of the cause before another jury, but with as little prejudice to either party as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the rule of court for awarding such second trial on the other: and the subsequent verdict, though contrary to the first, imports no tittle of blame upon the former jury, who, had they possessed the same lights and advantages, would probably have altered their own opinion. The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject; and nothing is now tried but the real merits of the case.
A sufficient ground must, however, be laid before the court, to satisfy them that it is necessary to justice that the cause should be further considered. If the matter be such as did not or could not appear to the judge who presided at nisi prius, it is disclosed to the court by affidavit: if it arises from what passed at the trial, it is taken from the judge’s information, who usually makes a special and minute report of the evidence. Counsel are heard on both sides to impeach **392]or establish the verdict, and the court give their reasons at large why a new examination ought or ought not to be allowed. The true import of the evidence is duly weighed, false colours are taken off, and all points of law which arose at the trial are upon full deliberation clearly explained and settled.
Nor do the courts lend too easy an ear to every application for a review of the former verdict. They must be satisfied that there are strong probable grounds to suppose that the merits have not been fairly and fully discussed, and that the decision is not agreeable to the justice and truth of the case. A new trial is not granted where the value is too inconsiderable to merit a second examination. It is not granted upon nice and formal objections, which do not go to the real merits. It is not granted in cases of strict right or summum jus, where the rigorous exaction of extreme legal justice is hardly reconcilable to conscience. Nor is it granted where the scales of evidence hang nearly equal: that which leans against the former verdict ought always very strongly to preponderate.
In granting such further trial (which is matter of sound discretion) the court has also an opportunity, which it seldom fails to improve, of supplying those defects in this mode of trial which were stated in the preceding chapter; by laying the party applying under all such equitable terms as his antagonist shall desire and mutually offer to comply with: such as the discovery of some facts upon oath; the admission of others not intended to be litigated; the production of deeds, books, and papers; the examination of witnesses, infirm or going beyond sea; and the like. And the delay and expense of this proceeding are so small and trifling, that it seldom can be moved for to gain time or to gratify humour. The motion must be made within the first four days of the next succeeding term, within which term it is usually heard and decided. And it is worthy observation, how infinitely superior to all others the trial by jury approves itself, even in the very mode of its revision. In every other country of Europe, and in those of our own tribunals which conform themselves to the **393]process of the civil law, the parties are at liberty, whenever they please, to appeal from day to day, and from court to court, upon questions merely of fact; which is a perpetual source of obstinate chicane, delay, and expensive litigation.(u) With us no new trial is allowed unless there be a manifest mistake, and the subject-matter be worthy of interposition. The party who thinks himself aggrieved may still, if he pleases, have recourse to his writ of attaint after judgment; in the course of the trial he may demur to the evidence, or tender a bill of exceptions. And, if the first is totally laid aside, and the other two very seldom put in practice, it is because long experience has shown that a motion for a second trial is the shortest, cheapest, and most effectual cure for all imperfections in the verdict; whether they arise from the mistakes of the parties themselves, of their counsel, or attorneys, or even of the judge or jury.
2. Arrests of judgment3 arise from intrinsic causes, appearing upon the face of the record. Of this kind are, first, where the declaration varies totally from the original writ; as where the writ is in debt or detinue, and the plaintiff declares in an action on the case for an assumpsit; for, the original writ out of chancery being the foundation and warrant of the whole proceedings in the common pleas, if the declaration does not pursue the nature of the writ, the court’s authority totally fails.4 Also, secondly, where the verdict materially differs from the pleadings and issue thereon; as if, in an action for words, it is laid in the declaration that the defendant said, “the plaintiff is a bankrupt;” and the verdict finds specially that he said, “the plaintiff will be a bankrupt.” Or, thirdly, if the case laid in the declaration is not sufficient in point of law to found an action upon. And this is an invariable *[*394rule with regard to arrests of judgment upon matter of law, “that whatever is alleged in arrest of judgment must be such matter as would upon demurrer have been sufficient to overturn the action or plea.” As if, on an action for slander in calling the plaintiff a Jew, the defendant denies the words, and issue is joined thereon; now if a verdict be found for the plaintiff, that the words were actually spoken, whereby the fact is established, still the defendant may move in arrest of judgment, that to call a man a Jew is not actionable: and, if the court be of that opinion, the judgment shall be arrested and never entered for the plaintiff. But the rule will not hold e converso, “that every thing that may be alleged as cause of demurrer will be good in arrest of judgment;” for if a declaration or plea omits to state some particular circumstance, without proving of which at the trial it is impossible to support the action or defence, this omission shall be aided by a verdict. As if, in an action of trespass, the declaration doth not allege that the trespass was committed on any certain day;(w) or if the defendant justifies, by prescribing for a right of common for his cattle, and does not plead that his cattle were levant and couchant on the land;(x)5 though either of these defects might be good cause to demur to the declaration or plea, yet if the adverse party omits to take advantage of such omission in due time, but takes issue, and has a verdict against him, these exceptions cannot after verdict be moved in arrest of judgment. For the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious; since the law will not suppose, that a jury under the inspection of a judge would find a verdict for the plaintiff or defendant, unless he had proved those circumstances, without which his general allegation is defective.(y)6 Exceptions therefore that are moved in arrest of judgment must be much more material and glaring than such as will maintain a demurrer: or, in other words, many inaccuracies and omissions, which would be fatal if early observed, are cured by a subsequent verdict; and not suffered, in the last stage of a cause, to unravel the whole proceedings. **395]But if the thing omitted be essential to the action or defence, as if the plaintiff does not merely state his title in a defective manner, but sets forth a title that is totally defective in itself,(z) or if to an action of debt the defendant pleads not guilty instead of nil debet,(a) these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the second.
If, by the misconduct or inadvertence of the pleaders,7 the issue be joined on a fact totally immaterial, or insufficient to determine the right, so that the court upon the finding cannot know for whom judgment ought to be given; as if, in an action on the case in assumpsit against an executor, he pleads that he himself (instead of the testator) made no such promise:(b) or if, in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads payment on the day:(c) (which issue, if found for the plaintiff, would be inconclusive, as the money might have been paid before;) in these cases the court will after verdict award a repleader quod partes replacitent; unless it appears from the whole record that nothing material can possibly be pleaded in any shape whatsoever, and then a repleader would be fruitless.(d) And, whenever a repleader is granted, the pleadings must begin de novo at that stage of them, whether it be the plea, replication, or rejoinder, &c., wherein there appears to have been the first defect, or deviation from the regular course.(e)
If judgment is not by some of these means arrested within the first four days of the next term after the trial, it is then to be entered on the roll or record.8 Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record; and are of four sorts. First, where the facts are confessed by the parties, and the law determined by the court; as in case of judgment upon demurrer: secondly, where the law is admitted by the parties and the facts disputed; as in case of judgment on a verdict: thirdly, where **396]both the fact and the law arising thereon are admitted by the defendant; which is the case of judgments by confession or default: or, lastly, where the plaintiff is convinced that either fact, or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution; which is the case in judgments upon a non-suit or retraxit.
The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stand thus: against him, who hath rode over my corn, I may recover damages by law: but A. hath rode over my corn; therefore I shall recover damages against A. If the major proposition be denied, this is a demurrer in law: if the minor, it is then an issue of fact: but if both be confessed (or determined) to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries; and the suit or action is the vehicle or means of administering it. What that remedy may be, is indeed the result of deliberation and study to point out; and therefore the style of the judgment is, not that it is decreed or resolved by the court, for then the judgment might appear to be their own; but, “it is considered,” consideratum est per curiam, that the plaintiff do recover his damages, his debt, his possession, and the like: which implies that the judgment is none of their own; but the act of law, pronounced and declared by the court, after due deliberation and inquiry.
All these species of judgments are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding, or default which is only intermediate, and does not finally determine or complete the suit. Of this nature are all judgments for the plaintiff upon pleas in abatement of the suit or action: in *[*397which it is considered by the court, that the defendant do answer over, respondeat ouster; that is, put in a more substantial plea.(f) It is easy to observe, that the judgment here given is not final, but merely interlocutory; for there are afterwards further proceedings to be had, when the defendant has put in a better answer.
But the interlocutory judgments, most usually spoken of, are those incomplete judgments, whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained: which is a matter that cannot be done without the intervention of a jury. As by the old Gothic constitution the cause was not completely finished, till the nembda or jurors were called in “ad executionem decretorum judicii, ad æstimationem pretii, damni lucri, &c”(g) This can only happen where the plaintiff recovers; for, when judgment is given for the defendant, it is always complete as well as final. And this happens, in the first place, where the defendant suffers judgment to go against him by default, or nihil dicit; as if he puts in no plea at all to the plaintiff’s declaration: by confession or cognovit actionem, where he acknowledges the plaintiff’s demand to be just: or by non sum informatus, when the defendant’s attorney declares he has no instruction to say any thing in answer to the plaintiff, or in defence of his client; which is a species of judgment by default. If these, or any of them, happen in actions where the specific thing sued for is recovered, as in actions of debt for a sum certain, the judgment is absolutely complete. And therefore it is very usual, in order to strengthen a creditor’s security, for the debtor to execute a warrant of attorney to some attorney named by the creditor, empowering him to confess a judgment by either of the ways just now mentioned (by nihil dicit, cognovit actionem, or non sum informatus) in an action of debt to be brought by the creditor against the debtor for the specific sum due:9 which judgment, when confessed, is absolutely complete and binding; provided the same (as is also required in all other judgments) be regularly docquetted, that is, abstracted and entered in a book, **398]according to the directions of statute 4 & 5 W. and M. c. 20.10 But, where damages are to be recovered, a jury must be called in to assess them; unless the defendant, to save charges, will confess the whole damages laid in the declaration: otherwise the entry of the judgment is, “that the plaintiff ought to recover his damages, (indefinitely,) but, because the court know not what damages the said plaintiff hath sustained, therefore the sheriff is commanded, that by the oaths of twelve honest and lawful men he inquire into the said damages, and return such inquisition into court.” This process is called a writ of inquiry: in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same laws and conditions as the trial by jury at nisi prius, what damages the plaintiff hath really sustained; and when their verdict is given, which must assess some damages, the sheriff returns the inquisition, which is entered upon the roll in manner of a postea; and thereupon it is considered, that the plaintiff do recover the exact sum of the damages so assessed. In like manner, when a demurrer is determined for the plaintiff upon an action wherein damages are recovered, the judgment is also incomplete, without the aid of a writ of inquiry.11
Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. In which case, if the judgment be for the plaintiff, it is also considered that the defendant be either amerced, for his wilful delay of justice in not immediately obeying the king’s writ by rendering the plaintiff his due;(h) or be taken up, capiatur, till he pays a fine to the king for the public misdemeanour which is coupled with the private injury in all cases of force,(i) of falsehood in denying his own deed,(k) or unjustly claiming property in replevin, or of contempt by disobeying the command of the king’s writ or the express prohibition of any statute.(l) But now in case of trespass, ejectment, assault and false imprisonment, it is provided, by the statute 5 & 6 W. and M. c. 12, *[*399that no writ of capias shall issue for this fine, nor any fine be paid; but the plaintiff shall pay 6s. 8d. to the proper officer, and be allowed it against the defendant among his other costs. And therefore upon such judgments in the common pleas they used to enter that the fine was remitted; and now in both courts they take no notice of any fine or capias at all.(m) But if judgment be for the defendant, then, in case of fraud and deceit to the court or malicious or vexatious suits, the plaintiff may also be fined;(n) but in most cases it is only considered that he and his pledges of prosecuting be (nominally) amerced for his false claim, pro falso clamore suo, and that the defendant may go thereof without a day, eat inde sine die, that is, without any further continuance or adjournment; the king’s writ, commanding his attendance, being now fully satisfied, and his innocence publicly cleared.(o)12
Thus much for judgments; to which costs are a necessary appendage; it being now as well the maxim of ours as of the civil law that “victus victori in expensis condemnandus est:”(p) though the common law did not professedly allow any, the amercement of the vanquished party being his only punishment. The first statute which gave costs, eo nomine, to the demandant in a real action was the statute of Gloucester, 6 Edw. I. c. 1, as did the statute of Marlberge, 52 Hen. III. c. 6, to the defendant in one particular case, relative to wardship in chivalry; though in reality costs were always considered and included in the quantum of damages in such actions where damages are given; and even now costs for the plaintiff are always entered on the roll as increase of damages by the court.(q) But because those damages were frequently inadequate to the plaintiff’s expenses, the statute of Gloucester orders costs to be also added; and further directs that the same rule shall hold place in all cases where the party is to recover damages. And therefore, in such actions where no damages were then recoverable, (as in quare impedit, in which **400]damages were not given till the statute of Westm. 2, 13 Edw. I.,) no costs are now allowed,(r) unless they have been expressly given by some subsequent statute.13 The statute 3 Hen. VII. c. 10 was the first which allowed any costs on a writ of error. But no costs were allowed the defendant in any shape till the statutes 23 Hen. VIII. c. 15, 4 Jac. I. c. 3, 8 & 9 W. III. c. 11, 4 & 5 Anne, c. 16, which very equitably gave the defendant, if he prevailed, the same costs as the plaintiff would have had in case he had recovered. These costs, on both sides, are taxed and moderated by the prothonotary, or other proper officer of the court.
The king (and any person suing to his use)(s) shall neither pay nor receive costs; for, besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.14 And it seems reasonable to suppose that the queen-consort participates of the same privilege; for in actions brought by her she was not at the common law obliged to find pledges of prosecution, nor could be amerced in case there was judgment against her.(t) In two other cases an exemption also lies from paying costs. Executors and administrators, when suing in the right of the deceased, shall pay none;(u) for the statute 23 Hen. VIII. c. 15 doth not give costs to the defendants unless where the action supposeth the contract to be made with, or the wrong to be done to, the plaintiff himself.15 And paupers, that is, such as will swear themselves not worth five pounds, are, by statute 11 Hen. VII. c. 12, to have original writs and subpœnas gratis, and counsel and attorney assigned them without fee; and are excused from paying costs when plaintiffs, by the statute 23 Hen. VIII. c. 15, but shall suffer other punishment at the discretion of the judges. And it was formerly usual to give such paupers, if non-suited, their election either to be whipped or pay the costs:(w) though that practice is now disused.(x)16 It seems, *[*401however, agreed, that a pauper may recover costs, though he pays none;17 for the counsel and clerks are bound to give their labour to him, but not to his antagonist.(y) To prevent also trifling and malicious actions for words, for assault and battery, and for trespass, it is enacted, by statutes 43 Eliz. c. 6,18 21 Jac. I. c. 16, and 22 & 23 Car. II. c. 9, § 136, that where the jury who try any of these actions shall give less damages than 40s. the plaintiff shall be allowed no more costs than damages, unless the judge before whom the cause is tried shall certify under his hand on the back of the record that an actual battery (and not an assault only) was proved, or that in trespass the freehold or title of the land came chiefly in question.19 Also, by statute 4 & 5 W. and M. c. 23, and 8 & 9 W. III. c. 11, if the trespass were committed in hunting or sporting by an inferior tradesman, or if it appear to be wilfully and maliciously committed, the plaintiff shall have full costs,(z) though his damages as assessed by the jury amount to less than 40s.
After judgment is entered, execution will immediately follow, unless the party condemned thinks himself unjustly aggrieved by any of these proceedings; and then he has his remedy to reverse them by several writs in the nature of appeals, which we shall consider in the succeeding chapter.
[(a) ] Append. No. II. 6.
[1 ] As to the postea in general, see Tidd, 8th ed. 931 to 934. The verdict is entered on the back of the record of nisi prius, which entry, from the Latin word it began with, is called the postea. When the cause is tried in the King’s Bench in London or Middlesex, the record is delivered to the attorney of the successful party, and he afterwards endorses the postea from the associate’s minute on the panel; but in country causes the associate keeps the record till the next term, and then delivers it, with the postea endorsed, to the party obtaining the verdict. The practice is in some respects different in the Common Pleas, where in town causes also the record remains with the associate till the quarto die post of the return of the habeas corpora juratorum, who endorses the postea upon the record; but, by a recent order, it is not to be delivered till the morning of the fifth day of the term. See 1 Brod. & B. 298. 3 Moore, 643. If the postea be lost, a new one may, in some cases, be made out from the record above and the associate’s notes, (2 Stra. 1264;) if wrong, it may be amended by the plea-roll, (1 Ld. Raym. 133,) by the memory or notes of the judge, (Cro. Car. 338. Bull. N. P. 320. 2 Stra. 1197. 6 T. R. 694. 1 Bar. & Ald. 161. 2 Cha. R. 352,) or the notes of the associate or clerk of assize. 2 Chitt. R. 352. 1 Bos. & Pul. 329. The application to amend by the judge’s notes must be made to the judge who tried the cause. 1 Chitt. R. 283. The court will not alter a verdict unless it appear on the face of it that the alteration would be according to the intention of the jury, (1 H. Bla. 78;) but not after a considerable lapse of time to increase damages, although the jury join in an affidavit stating their intention to have been to give the increased sum, and thought they had in effect done so. 2 T. R. 281; sed vide 1 Burr. 383, where a verdict was rectified which had been mistakenly delivered by the foreman. Where the jury had found the treble value in an action of debt on the statute for not setting out tithes, on a writ of inquiry, the inquisition was amended by the insertion of nominal damages. 1 Bingh. R. 182. In an action by one defendant in assumpsit against a co-defendant for contribution, the postea is evidence to prove the amount of the damages. 2 Stark. R. 364. See 9 Price, 359. Tidd, 8th ed. 932, 933. The production of the postea is not sufficient evidence of a judgment: a copy of the judgment founded thereon must also be produced. Bull. N. P. 234. Willes, 367. But the nisi prius record, with the postea endorsed, is sufficient to prove that the cause came on to be tried, (1 Stra. 162. Willes, 368,) or the day of trial. 6 Esp. R. 80, 83. See 9 Price, 359. Tidd, 8th ed. 977.—Chitty.
[2 ] As to new trials in general, see Tidd, 8th ed. 934 to 949. When there are two contrary verdicts, it is not of course, but in the discretion of the court, to grant a new trial. 2 Bla. R. 963. In an inferior court it is said a new trial cannot be had upon the merits, but only for irregularity, (1 Salk. 201. 2 Salk. 650. 1 Stra. 113, 499. 1 Burr. 572. Doug. 380. 2 Chitty’s R. 250;) but it may set aside a regular interlocutory judgment to let in a trial of the merits. 1 Burr. 571. The principal grounds for setting aside a verdict or non-suit, and granting a new trial, besides those mentioned in the text, are—1st. The discovery of new and material evidence since the trial. 2 Bla. Rep. 955. 2d. If the witnesses on whose testimony the verdict was obtained have been since convicted of perjury in giving their evidence, (M. 22 Geo. III. K. B.;) or if probable ground be laid to induce the court to believe that the witnesses are perjured, they will stay the proceedings on the finding of a bill of indictment against them for perjury, till the indictment is tried, (ib.;) but the circumstance of an indictment for perjury having been found against a witness is no ground of motion for new trial. 4 M. & S. 140. 8 Taunt. 182. 3d. For excessive damages, indicating passion or partiality in the jury. 1 Stra. 692. 1 Burr. 609. 3 Wils. 18. 2 Bl. Rep. 929. Cowp. 230. 5 T. R. 257. 7 ib. 529. 11 East, 23. It is not usual to grant a new trial for smallness of damages, (2 Salk. 647. 2 Stra. 940. Doug. 509. Barnes, 455, 456;) in which latter case it is said, if the demand is certain, as on a promissory-note, the court will set aside a verdict for too small damages, but not where the damages are uncertain. Lastly, it is a general rule not to grant a new trial, except for the misdirection of the judge, (4 T. R. 753. 5 ib. 19. 6 East, 316, (b). 1 Marsh. 555;) or where a point has been saved at the trial, (1 B. & P. 338;) in a penal, (2 Stra. 899. 10 East, 268. 4 M. & S. 338. 2 Chitty’s R. 273,) hard, or trifling action, (2 Salk. 653. 3 Burr. 1306;) and an action is considered trifling in this respect when the sum to be recovered is under 20l. (5 Taunt. 537. 1 Chitty’s R. 265, (a.),) unless the trial is to settle a right of a permanent nature. Ib. In all these cases, if the verdict be agreeable to equity and justice, the court will not grant a new trial, though there may have been an error in the admission or rejection of evidence, or in the direction of the judge, if it appear to the court on the whole matter disclosed by the report that the verdict ought to be confirmed. 4 T. R. 468.
A new trial cannot be granted in civil cases at the instance of one of several defendants, (12 Mod. 275. 2 Stra. 814,) nor for a part only of the cause of action. 2 Burr. 1224. 3 Wils. 47. But there may be cases in which the new trial is restricted to a particular part of the record, as if the judge give leave to move on one part or point only, on a stipulation that counsel shall not move for any thing else; or if the court think injustice may be done by setting the whole matter at large again, they may restrict the second trial to certain particular points. 4 Taunt. 566.
In criminal cases no new trial can be granted where the defendant has been acquitted. 6 East, 315. 4 M. & S. 337. 1 B. & A. 64. Where several defendants are tried at the same time for a misdemeanour, and some are acquitted and others convicted, the court may grant a new trial to those convicted, if they think the conviction improper. 6 East, 619. See further, on this subject, Tidd, 8th ed. 934. In civil cases a motion for a new trial cannot be made after an unsuccessful motion in arrest of judgment. 4 Bar. & Cres. 160. The granting of a new trial is either without or upon payment of the costs of the former trial; or such costs are directed to abide the event of the suit. The general rule seems to be, that if the new trial be granted for the misbehaviour of the jury or the misdirection of the judge, the costs are not required to be paid by the party applying for a new trial; but where the mere error of the jury, or the discovery of fresh evidence, is the ground, the costs must be paid by the party moving to set aside the former verdict. See Tidd, 8th ed. 945.—Chitty.
[(b) ] Law of Nisi Prius, 303, 304.
[(c) ] Comb. 357.
[(d) ] 6 Mod. 22. Salk. 649.
[(e) ] 24 Edw. III. 24. Bro. Abr. tit. verdite, 17.
[(f) ] 11 Hen. IV. 18. Bro. Abr. tit. enquest, 75.
[(g) ] 14 Hen. VII. 1. Bro. Abr. tit. verdite, 18.
[(h) ] Styl. 466.
[(i) ] Ibid. 238.
[(k) ] 1 Sid. 235. Styl. Pract. Reg. 310, 311, edit. 1657.
[(l) ] Cro. Eliz. 616. Palm. 325. 1 Brownl. 207.
[(m) ] 1 Sid. 235. 2 Lev. 140.
[(n) ] 4 Burr. 395.
[(o) ]Ipsi regali institutioni eleganter inserta. Glanv. l. 2 c. 19.
[(p) ] Bract. l. 4, tr. 5, c. 4.
[(q) ] Ibid. [Editor: illegible character] 1, c. 19, 8.
[(r) ] Ibid. l. 4, tr. 5, c. 6, 2. F. N. B. 181. 2 Inst. 415.
[(s) ]Si juratores erraverint, et justiciarii secundum eorum dictum judicium pronuntiaverint, falsam faciunt pronuntiationem: et ideo sequi non debent eorum dictum, sed illud emendare tenentur per diligentem examinationem. Si autem dijudicare nesciant, recurrendum erit ad majus judicium. Bract. l. 4, tr. 5, c. 4, 2.
[(t) ] See page 268.
[(u) ] Not many years ago an appeal was brought to the house of lords from the court of session in Scotland, in a cause between Napier and Macfarlane. It was instituted in March, 1745, and (after many interlocutory orders and sentences below, appealed from and reheard as far as the course of proceedings would admit) was finally determined in April, 1749,—the question being only on the property in an ox adjudged to be of the value of three guineas. No pique or spirit could have made such a cause in the court of King’s Bench or Common Pleas, have lasted a tenth of that time, or have cost a twentieth part of the expense.
[3 ] The parties cannot move in arrest of judgment for any thing that is aided after verdict at common law, or by the statute of amendments, or cured, as matter of form, by the statute of jeofails. See 1 Saund. 228, n. (1.) It is a general rule that a verdict will aid a title imperfectly set out, but not an imperfect title. 2 Burr. 1159. 3 Wils. 275. 4 T. R. 472. The defendant cannot move in arrest of judgment for any thing which he might have pleaded in abatement. 2 Bla. R. 1120. Surplusage will not vitiate after verdict; as in trover stating the possession of the goods in plaintiff on the 3d of March, and the conversion by defendant “afterwards to wit on the 1st of March,” it was held that afterwards might stand, and the other words be treated as surplusage. Cro. C. 428. The motion in arrest of judgment, &c. may be made in the King’s Bench at any time before judgment is given, (5 T. R. 445. 2 Stra. 845,) though a new trial has been previously moved for. Doug. 745, 746. In the Common Pleas, the motion must be made before or on the appearance-day of the return of the habeas corpora juratorum. Barnes, 445. In the Exchequer, the motion must be made within the first four days of the next term after the trial, and it may be made after an unsuccessful motion for a new trial. See Manning’s Ex. Prac. 353. Tidd, 960, 961; but see 7 Price, 566.
If the judgment be arrested in consequence of mistake of the form of action, or otherwise, the plaintiff is at liberty to proceed de novo in a fresh action. 1 Mod. 207. Vin. Abr. tit. Judgment, Q. 4. Bla. R. 831. Each party pays his own costs upon the judgment being arrested. Cowp. 407.—Chitty.
[4 ] Now no form of action is stated in the writ. Com. Law Proc. Act. 1853, s. 3.—Stewart.
[(w) ] Carth. 389.
[(x) ] Cro. Jac. 44.
[5 ] See, however, 1 Saund. 228, note 1.—Chitty.
[(y) ] 1 Mod. 292.
[6 ] It is correctly observed, upon this passage, that though Sir W. Blackstone has stated with correctness the principle upon which defects are aided by a verdict at common law, yet his two examples are instances of defects aided after verdict by the statute of jeofails. See post, 408. Stewart vs. Hogg, 1 Saund. 228, n. (1.) In the first case the trespass was alleged to have been committed on a day not yet come, this was clearly no omission of any circumstance necessary in the proof, but a formal misstatement. So again, where the party stated a prescriptive right of common, but neglected to bring his case formally within it by averring the levancy and couchancy of the cattle, which was one condition of the prescription, the issue being taken on the prescription itself, no proof was necessary that the particular cattle were levant and couchant in fact; the omission of that fact therefore was not the omission of a circumstance necessary in the proof: in other words, the verdict in neither case raises a presumption that the fact omitted was proved to the jury. But an instance in point may be put thus: if a man states the grant of a reversion, which can only be conveyed by deed, without alleging it to have been by deed, here if the fact of the grant be put in issue and found by the jury, the verdict covers the omission; for without proof of the deed the presumption is that it could not have been so found.—Coleridge.
[(z) ] Salk. 305.
[(a) ] Cro. Eliz. 778.
[7 ] The following rules have been laid down on this subject. A repleader ought never to be allowed till trial, because the fault of the issue may be helped after the verdict by the statute of jeofails. 2dly. If a repleader be denied where it should be granted, or granted where it should be denied, it is error. 3dly. The judgment of repleader is general, and the parties must begin again at the first fault which occasioned the immaterial issue. 1 Lord Raym. 169. Thus, if the declaration be ill, and the bar and replication are also ill, the parties must begin de novo; but if the bar be good and the replication ill, at the replication. 3 Keb. 664. 4thly. No costs are allowed on either side. 6 T. R. 131. 2 B. & P. 376. 5thly. That a repleader cannot be awarded after a default at nisi prius; to which may be added, that it can never be awarded after a demurrer or writ of error, but only after issue joined, (3 Salk. 306,) nor where the court can give judgment on the whole record, (Willes, 532;) and it is not grantable in favour of the person who made the first fault in pleading. Doug. 396. See 2 Saund. 319, b.—Chitty.
[(b) ] 2 Ventr. 190.
[(c) ] Stra. 994.
[(d) ] 4 Burr. 301, 302.
[(e) ] Raym. 458. Salk. 579.
[8 ] If a verdict is taken generally, with entire damages, judgment may be arrested if any one count in the declaration is bad; but if there is a general verdict of guilty upon an indictment consisting of several counts, and any one count is good, that is held to be sufficient. Doug. 730.—Chitty.
[(f) ] 2 Saund. 30.
[(g) ] Stiernhook, de jure Goth. l. 1, c. 4.
[9 ] For the purpose of preventing frauds upon creditors by secret warrants of attorney to confess judgment, it is enacted, by statute 3 Geo. IV. c. 39, enlarged by 6 & 7 Vict. c. 66, that the clerk of the dockets of the court of Queen’s Bench shall cause a book in which the particulars of every warrant of attorney and cognovit actionem shall be entered; and also a book or index shall be kept of names of persons to whom warrants of attorney are given, which shall be open to inspection. And by the Bankrupt-Law Consolidation Act, 1849, s. 137, every judge’s order given by a trader defendant, whereby the plaintiff is authorized to sign judgment or issue execution, (or a copy of this order,) must be filed with the clerk of the docquets in the Queen’s Bench within twenty-one days after the making of such order: otherwise judgment signed thereon, or execution issued, shall be null and void. And by stat. 1 & 2 Vict., c. 110, a more important alteration has been made in the same respecting warrants of attorney and cognovits. By s. 9, after reciting that it is expedient that provision should be made for giving every person executing such instruments due information of the nature thereof, it is enacted that no warrant of attorney or cognovit shall be of any force unless an attorney of one of the superior courts shall be present on behalf of the person executing it and shall subscribe his name as a witness. And by s. 10, a warrant of attorney or cognovit not formally executed shall be invalid.—Stewart.
[10 ] The judgment must be re-registered every five years, in order to remain in force and preserve its priority of subsequent judgment-creditors. 1 & 2 Vict. c. 110. 3 & 4 Vict. c. 82, s. 2. 2 Vict. c. 11, s. 1. 18 & 19 Vict. c. 15, s. 4. Freer vs. Hesse, 22 L. F. Chanc. 597.—Kerr.
[11 ] It has been said by C. J. Wilmot that “this is an inquest of office to inform the conscience of the court, who, if they please, may themselves assess the damages.” 3 Wils. 62. Hence a practice is now established in the courts of King’s Bench and Common Pleas, in actions where judgment is recovered by default upon a bill of exchange or a promissory-note, to refer it to the master or prothonotary to ascertain what is due for principal, interest, and costs, whose report supersedes the necessity of a writ of inquiry. 4 T. R. 275. 1 H. Bla. 541. And this practice is now adopted by the court of exchequer. 4 Price, 134. See, further, Tidd, 8th ed. 817, 818, 819. In cases of difficulty and importance, the court will give leave to have the writ of inquiry executed before a judge at sittings or nisi prius; and then the judge acts only as an assistant to the sheriff. The number of the jurors sworn upon this inquest need not be confined to twelve; for when a writ of inquiry was executed at the bar of the court of King’s Bench, in an action of scandalum magnatum brought by the duke of York (afterwards James the Second) against Titus Oates, who had called him a traitor, fifteen were sworn upon the jury, who gave all the damages laid in the declaration,—viz., 100,000l. In that case the sheriffs of Middlesex sat in court, covered, at the table below the judges. 3 St. Tr. 987.—Christian.
Before the 8 & 9 W. III. c. 11, the penalty in a bond for the performance of covenants became forfeited upon a single breach thereof; but now, by the 8th section of that statute, though the plaintiff is permitted to enter up judgment for the whole penalty, it can only stand as a security for the damages actually sustained. The plaintiff must then proceed by suggesting breaches on the roll, of which it is usual to give a copy to the defendant, with notice of inquiry for the sittings or assizes; and the damages are assessed upon the writ in the usual way by a jury; and, upon payment of them, execution upon the judgment entered up is stayed, the judgment itself remaining as a security against further breaches. See Tidd, 8th ed. 632. This statute does not extend to a bond conditioned for the payment of a sum certain at a day certain, as a post-obit bond, (2 B. & C. 82,) nor a common money bond, (4 Anne, c. 16, s. 13. 1 Saund. 58,) nor a warrant of attorney payable by instalments, (3 Taunt. 74. 5 Taunt. 264,) though a bond be also given, (2 Taunt. 195,) nor to a bail-bond, (2 B. & P. 446,) nor a petitioning creditor’s bond. 3 East, 22. 7 T. R. 300. But all other bonds, either for payment of money by instalments, or of annuities, or for the performance of any covenants or agreements, are within the statute. See 8 T. R. 126. 6 East, 550. 2 Saund. 187, n. (c.) 3 M. & S. 156. 1 Chitty on Pl. 507, where the parties in a bond agree that the sum mentioned to be paid on a breach of any of its covenants shall be taken to be, and be considered as, stipulated damages, the case is not then within the statute, and the whole sum becomes at once payable, according to the terms of the agreement; for, where the precise sum is the ascertained damage, the jury are confined to it. See 4 Burr. 2225. 2 B. & P. 346. 1 Camp. 78. 2 T. R. 32. Holt, Rep. 43.—Chitty.
[(h) ] 8 Rep. 40, 61.
[(i) ] 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See Append. No. II. 4.
[(k) ] F. N. B. 121. Co. Litt. 131. 8 Rep. 60. 1 Roll. Abr. 219. Lill. Entr. 379, C. B. Hil. 4 Ann. rot. 430.
[(l) ] 8 Rep. 60.
[(m) ] Salk. 54. Carth. 390.
[(n) ] 8 Rep. 59, 60.
[(o) ] Append. No. III. 6.
[12 ] At common law the death of a sole plaintiff or sole defendant at any time before final judgment abated the suit; but now, by 17 Car. II. c. 8, where either party dies between verdict and judgment, it may still be entered up within two terms after the verdict. This statute does not apply where either party dies after interlocutory judgment and before the return of the inquiry. 4 Taunt. 884. There must be a scire facias to revive the judgment thus entered up before execution. 1 Wils. 302. By the 8 & 9 W. III. c. 11, the casus omissus in the statute of Charles II. is supplied. It provides that in case of either party dying between interlocutory and final judgment in any action which might have been maintained by or against the personal representative of the party dying; or in case of one or more of the plaintiffs or defendants dying, in an action the cause of which would by law survive to the survivors, the action shall not abate by reason thereof, but, the death being suggested on the record, the action shall proceed. The death of either party in the interval of hearing and deciding upon motions in arrest of judgment, special verdicts, and the like, does not deprive the party of the right to enter up judgment, though the delay thus occasioned by the court may exceed two terms after verdict. See Tidd, 8th ed. 966, 967, 1168, 1169. It has been held that if the party die after the assizes begin, though before the trial of the cause, it is within the statute, which, being remedial, must be construed favourably, the assizes being considered but as one day in law. 1 Salk. 8. 7 T. R. 31. See 2 Ld. Raym. 1415, n. But, in the Common Pleas, a verdict and judgment were set aside when the defendant died the night before trial at the sittings in term. 3 B. & P. 549. And where the verdict has been taken subject to a reference, the death of a party before an award revokes the authority of the arbitrator. 1 Marsh. 366. 2 B. & A. 394. 2 Chitt. R. 432.—Chitty.
[(p) ] Cod. 3, 1, 13.
[(q) ] Append. No. II. 4.
[(r) ] 10 Rep. 116.
[13 ] Wherever a party has sustained damage, and a new act gives another than the common-law remedy, such party may recover costs as well as damages; for the statute of Gloucester extends to give costs in all cases where damages are given to any plaintiff, in any action, by any statute after that parliament. 2 Inst. 289. 6 T. R. 355.—Chitty.
[(s) ] Stat. 24 Hen. VIII. c. 8.
[14 ] There are some exceptions to the rule that the king neither pays nor receives costs. Thus, by 33 Hen. VIII. c. 39, s. 54, the king in all suits, upon any obligations or specialties made to himself or to his use, shall have and recover his just debts, costs, and damages, as other common persons used to do. By the 25 Geo. III. c. 35, if the goods and chattels are insufficient, (3 Price, 40,) and the lands are sold towards discharging the debt due to the crown in such case, “all costs and expenses incurred by the crown in enforcing the payment of such debt are to be paid.” By 43 Geo. III. c. 99, s. 41, costs may be levied against collectors of taxes in certain cases. See 3 Price, 280. In equity, the attorney-general receives costs where he is made a defendant in respect of legacies given to charities, or in respect of the immediate rights of the crown in cases of intestacy. And see 1 S. & S. 394.—Chitty.
[(t) ] F. N. B. 101. Co. Litt. 133.
[(u) ] Cro. Jac. 229. 1 Ventr. 92.
[15 ] If executors sue as executors for money paid to their use after the testator’s death, they shall pay costs. 5 T. R. 234. Tidd, 1014. When executors and administrators are defendants, they pay costs like other persons. Tidd, 8th ed. 1016. Or wherever the cause of action arises in the time of the executor, as the conversion in the case of trover, the executor shall pay costs, because it is not necessary to bring the action in the character of executor. 7 T. R. 358. So an executor or administrator is liable to pay the costs of a non-pros. 6 T. R. 654. See, in general, Tidd, 8th ed. 1014.—Christian.
[(w) ] 1 Sid. 261. 7 Mod. 114.
[(x) ] Salk. 506.
[16 ] But, as observed in Tidd Prac. 8th ed. 94, it does not appear that so disgraceful a proceeding was ever adopted by inflicting the punishment.—Chitty.
[17 ] 1 Bos. & P. 39. The pauper in such case can only recover as costs the sums he is actually out of pocket, not such sums as would have been so paid in an ordinary suit by any other plaintiff; and it seems that he and his solicitor may be required to state on oath the amount thus expended in equity. Hullock on Costs, 228.—Chitty.
[(y) ] 1 Eq. Ca. Abr. 125.
[18 ] The 43 Eliz. c. 6 enacts that where the plaintiff in any personal action, except for any title or interest in lands, or for a battery, recovers less than 40s., he shall have no more costs than damages, if the judge certifies that the debt or damages were under 40s. But if the judge does not grant such a certificate to the defendant, the plaintiff recovers full costs. Actions of trespass vi et armis, as for beating a dog, are within the statute. 3 T. R. 38. The certificate under the statute may be granted after the trial. This certificate, it will be remarked, is to restrain the costs; but a certificate under the 22 & 23 Car. II. c. 9 is given in favour of the plaintiff to extend them from a sum under 40s. to full costs. If the defendant justifies the battery, the plaintiff shall have full costs without the judge’s certificate, though the damages are under 40s., for it is held the admission of the defendant precludes the necessity of the certificate. But a justification of the assault only will not be sufficient for this purpose; for the judge must certify an actual battery. 3 T. R. 391. This certificate also may be granted a reasonable time after the trial. 2 Bar. & Cres. 621 & 580.
In declarations for assault and battery there is sometimes a count for tearing the plaintiff’s clothes; and if this is stated as a substantive injury, and the jury find it to have been such and not to have happened in consequence of the beating, the plaintiff will be entitled to full costs, (1 T. R. 656;) unless the judge should assist the defendant under the 43 Eliz. c. 6. So in a trespass upon land, the carrying away, or asportavit, of any independent personal property will entitle the plaintiff to full costs, unless the asportation, as by digging and carrying away turves, is a mode or qualification of the trespass upon the land. Doug. 780. See these acts and the cases upon them fully collected, Tidd, 987, 988, 996 to 1005.—Christian.
[19 ] The account given of the 43 Eliz. c. 6 is not quite correct. That statute is not confined to the causes of action specified in the text, (indeed, it specifically excludes one of them, battery,) but extends generally to all personal actions; and its object was to confine suits for trilling matters to inferior courts. It does not require a certificate to give full costs, but to take them away; and it was the unwillingness of the judges to interpose under this statute which induced the legislature to pass the statutes of James and Charles upon a different system, these last restraining generally the costs in certain cases, unless the judge by his certificate deemed it proper to grant them.—Coleridge.
[(z) ] See pages 214, 215.