other not, the plaintiff must new assign the assault for which he brought his action (10), otherwise the defendant will be entitled to a verdict on his justification. Where the plaintiff declares of a single act of assault and battery", to which the defendant pleads son assault demesne, the plaintiff cannot reply de injuria sua propria, and also new assign that the defendant beat the plaintiff in a more violent manner than was necessary for the defence of himself; because such replication and new assignment constitute in effect a double replication, which is not allowed by the rules of pleading. IV. Verdict and Judgment. DAMAGES may be given in this action not merely for the corporal injury, which in many cases may be very small, but also for the degrading insult with which it is accompanied. Against joint trespassers there can be but one satisfaction", and, therefore, if they are sued in one action, although they sever in pleas and issues, yet one jury shall assess damages for all; and if all the issues are found for the plaintiff, the jurors ought not to sever the damages, for, if they do, the verdict will be vicious (11). And if, in such case, judgment be entered for the separate damages, such judgment will be m 3 Roll. Abr. 680. (C.) pl. 3. Walsby n Franks v. Morris, 10 East, 81, n. v. Oakley, London sittings after Hob 66. Heydon's case, 5th Resol. M. T. 40 Geo. 3. MSS. S. P. per 11 Rep. 7. Kenyon, C. J. o (10) "If there were two batteries on one day, and the one were on the plaintiff's own assault, and the other not, if the defendant will justify one de son assault demesne the plaintiff may make a new assignment of the other battery," per Cur. in Elwis v. Lombe, 6 Mod. 120. A new assignment, however, in these cases, is only necessary where there is but one count in the declaration; for if the declaration contain as many counts as there were assaults, &c. and some of them cannot be justified, the plaintiff may prove those without a new assignment. Bull. N. P. 17. (11) On the trial of an action against two defendants A. and B. it was proved that the assault by A. was more violent than that by B. Lord Ellenborough, C. J. told the jury that the damages could not be severed, so as to give more damages against A. than against B. but that they might give their verdict against both, to the amount which they thought the most culpable ought to pay. Brown v. Allen and Oliver, 4 Esp. N. P. C. 158. See Lowfield v. Bancroft, Str. 910. and Bull. N. P. 15. to the same effect. erroneous. But, before judgment, the defect of the verdict may be cured, by the entry of a nolle prosequi against all the defendants, except one, and taking judgment against that one only. So if joint defendants suffer judgment by default, and the plaintiff execute separate writs of inquiry against them, whereupon several damages are given, it is irregular; and if final judgment be entered for those damages, such judgment will be erroneous. But, before final judgment, the court will permit the plaintiff, in order to cure the error, to set aside his own proceedings, upon payment of costs, and to issue a new writ of inquiry. V. Of the Costs. By stat. 22 and 23 Car. 2. c. 9. (12) “In all actions of assault and battery, wherein the judge at the trial of the cause shall not certify under his hand upon the back of the record, that an assault and battery was sufficiently proved by the plaintiff against the defendant, the plaintiff, in case the jury shall find the damages to be under the value of forty shillings, shall not recover more costs than the damages so found shall amount unto." It is not necessary that the certificate should be granted at the trial; if it be granted within a reasonable time after, it is sufficient, for the words of the statute cannot be expounded literally. Hence where the certificate was granted four days after the trial, but before the judge had left the assize town, it was holdent sufficient. Upon this statute, which does not extend to writs of inquiry", it must be observed, that a certificate of an assault only is not sufficient to entitle the plaintiff to full costs, and, consequently, although an admission on the record of a battery, by a justification of it, will supersede the necessity of a certificate, yet a similar admission of an assault only will not". Trespass the declaration stated that defendant, with force and arms made an assault on plaintiff, and beat, bruised, p Crane v. Hummerstone, Cro. Jac. 113. Hill v. Goodchild, 5 Burr. 2791. q Rodney v. Strode, Carth 19. s Mitchell v. Millbank, 6 T. R. 199. t Johnson v. Stanton, 2 B. & C. 621. u Sheldon v. Ludgate, Bull. N. P. 329. z Page v. Creed, 3 T. R. 391. Bren- (12) Extended to courts of Great Sessions for Wales and Chester, Court of Common Pleas for county palatine of Lancaster, and Court of Pleas for county palatine of Durham. by stat. 11 & 12 W. 3. c. 9. wounded, and ill treated him. Defendant pleaded the general issue, and two special pleas, omitting the beating, bruising, and wounding, as stated in the declaration, and justifying the assaulting and ill-treating only. These pleas, in substance, stated that J. S. being possessed of a house, in which a boy was making a noise, the defendant, as his servant, gently laid his hands upon the boy to remove him, when plaintiff, unlawfully interfered to assist the boy, whereupon the defendant gently laid his hand on plaintiff to prevent him from interfering, concluding with a traverse of the assault elsewhere than in the house. Replication, de injuria suá propriá and issue thereon. Verdict for plaintiff, damages 1s. Held, that the special pleas admitted a battery, and that plaintiff was entitled to his full costs, although the judge had not certifieda. But if the defendant justify, and thereupon the plaintiff make a new assignment, to which the defendant pleads the general issue, the plaintiff will have no more costs than damages without a certificate. It should seem that there was not, in this case, any issue on the justification. An injury to a personal chattel, although laid in the same declaration with an assault and battery, is not within the statute; but this rule holds only where such injury is a substantive and independent injury, and stated in a distinct and independent count; for where in trespass for an assault and batteryd and tearing plaintiff's clothes, the jury found that the tearing was in consequence of the battery, and gave less than forty shillings damages, it was holden that the plaintiff was not entitled to any more costs than damages. So where in an action of assault, and for tearing the plaintiff's clothes, the plaintiff recovered less than forty shillings, although the declaration charged the tearing the clothes as a substantive fact, yet the tearing being stated in the same count with the assault and batteryf, and alleged to have been done at the same time and place, it was holden that the plaintiff was not entitled to any more costs than damages; for the court will construe the declaration so as to accomplish the object of the statute, and, after a general verdict, it will be intended that the tearing was found to be part of the same act, and a consequence of the battery. By stat. 8 and 9 W. 3. c. 11. s. 1. "Where several persons are made defendants to any action or plaint of trespass, a Johnson v. Northwood, 1 Moore, (C P.) 420. b Richards v Turner, Bull. N P.330. 5th edit. e Milbourne v. Reade, 3 Wils. 322. d Cotterill v Tolly, 1 T. R. 655. Hamson v. Ashdead, Bull. N. P. 329. and Sayer's Rep. 91. e Mears v. Greenaway, 1 H. Bl. 291. f Lockwood v. stannard, 5 T. R. 482. S. P. assault, or false imprisonment, and any one or more of them shall be upon the trial thereof acquitted by verdict, every person so acquitted shall have his costs in like manner as if a verdict had been given against the plaintiff and acquitted all the defendants, unless the judge, before whom such cause shall be tried, shall, immediately after the trial thereof in open court, certify upon the record under his hand, that there was a reasonable cause for making such person a defendant to such actions." In assault and battery against several defendants, one let judgment go by default, and the others pleaded not guilty. On the trial, the jury gave damages against him who had suffered judgment by default, and found the other defendants not guilty. Wilmot, J. being desired to certify that there was a reasonable cause to make the others defendants, said, he thought the stat. 8 and 9 W. 3. c. 11. s. 1. did not extend to this case, but only to cases where some of the defendants are convicted by verdict, and others acquitted. In this case it is as if they had severed in pleading, and as if the action was against the others only; and on these grounds he refused to certify. By stat. 3 and 4 W. 4. c. 42. s. 32. "Where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs, unless, in the case of a trial, the judge before whom the cause shall be tried, shall certify upon the record under his hand, that there was a reasonable cause for making such person a defendant in such action." By stat. 8 and 9 W. 3. c. 11. s. 4. "In all actions of trespass, commenced or prosecuted in any of his Majesty's courts of record at Westminster, wherein at the trial of the cause it shall appear, and be certified by the judge under his hand, upon the back of the record, that the trespass upon which any defendant shall be found guilty was wilful and malicious, the plaintiff shall recover not only his damages but full costs." وو Of the Certificate under the 43 Eliz. to deprive the Plaintiff of Costs. The preceding statutes enable plaintiffs, by means of the judge's certificate, to recover full costs; it remains only to mention the 43d Eliz. c. 6. s. 2. which empowers g See Furneaux v. Fotherby and an- h Collins v. Harrison and others, Worother, 4 Campb. 137. cester Lent Ass. 1757. MSS. " judges in all personal actions, not therein excepted, to deprive plaintiffs, by means of a certificate, which may be granted under certain circumstances, of the benefit of full costs. The provisions of this statute are the followingi: "If upon any action personal, brought in any of the king's courts at Westminster, not being for any title or interest of lands (13), nor concerning the freehold or inheritance of any lands, nor for any battery, it shall appear to the judges for the same court, and so signified or set down by the justices before whom the same shall be tried, that the debt or damages to be recovered therein shall not amount to the sum of forty shillings or above, the judges before whom any such action shall be pursued shall not award for costs to the plaintiff any greater costs than the amount of the debt or damages recovered, but less at their discretion." In trespass for an assault and taking a rope, the jury gave eighteen-pence damagesk. And Mr. Justice Burnet, who tried the cause, certified according to st. 43 Eliz. c. 6. in order to deprive plaintiff of costs. The plaintiff, however, moved (as it was a new case,) for costs de incremento, pretending that here was an asportavit, which, on the 22 and 23 Car. 2. c. 9. had been always holden to carry costs. the court in this case refused to give costs, for the st. 43 Eliz. takes in all but a few excepted cases, of which this is not one. "And though it has not been usual to grant a certificate on this act, yet we have often known it threatened (14)." It has been holden', that a certificate upon وو i 43 Eliz. c. 6. s. 2. k Walker v. Robinson, Str. 1232. and 1 Wils. 93 But 1 Holland v. Gore, Sayer on Costs, 19. (13) An action on the case, for a disturbance of or injury to the plaintiff's right of common, is not necessarily an action for any title, or interest of lands; it may be brought in order to assert such title, or a right to such interest; or it may be brought against a mere wrong-doer, when the plaintiff's title to common is not disputed; or against another commoner, where there is no question on the right of either party: in the two last cases it is within the statute, and the judge may certify. Edmonson v. Edmonson, 8 East, 294. (14) In White v. Smith, Willes, C. J. in an action for taking sand on Hounslow Heath, certified under this statute. A similar certificate was granted in Bartlett v. Robbins, C. B. E. 5 Geo. 3. in an action of assumpsit, and by Kenyon, C. J. in Dand v. Sexton, 3 T. R. 37. in an action of trespass vi et armis for beating a dog, although it was urged that the statute applied to those actions only which could be brought in the county court, and that consequently it did not extend to an action vi et armis. The Court of King's Bench concurred in opi |