Judgment according to the right and justice of the case. in a supposed joint demise by A. and B., and it appeared in evidence that A. and B. had not such an interest that they could join in a demise to the nominal plaintiff; Taunton, J., at Nisi Prius, refused to amend the declaration by severing the demises, and the court would not allow the propriety of the refusal to be discussed in banc a. By 3 & 4 W. IV. c. 4. s. 24. it is enacted, "that the said court or judge shall and may, if they or he think fit, in all such cases of variance, instead of causing the record or document to be amended as aforesaid, direct the jury to find the fact or facts according to the evidence, and thereupon such finding shall be stated on such record or document, and, notwithstanding the finding on the issue joined, the said court, or the court from which the record has issued shall, if they shall think the said variance immaterial to the merits of the case, and the misstatement such as could not have prejudiced the opposite party in the conduct of the action or defence, give judgment according to the very right and justice of the case." Where the declaration in an action for an escape contained only one count, alleging an escape against the sheriff, and the evidence only proved a negligent omission of the sheriff's officer to make an arrest, when he had an opportunity; the judge, on an application for leave to amend, directed the jury to find the facts, specially reserving the question of the plaintiff's right to amend for the opinion of the court; and the jury having found a verdict for the defendant, but that fact in the affirmative; the court above ordered a verdict to be entered for the plaintiff, observing, that the defendant was not at all prejudiced in the conduct of his defence, by the course pursued by the plaintiff. The court further though a special jury was struck, Haydon (in Error), Cowp. 841. But in a recent case it was considered too late to apply after the cause had been called on. Doe d. Manning v. Hay, 1 M. & Rob. 243. a Doe d. Poole v. Errington, 3 Nev. & M. 646. 1 Adol. & Ellis, 750. 1 M. & Rob. 343. said, that they had no power under the statute to impose any terms a. Where in an action on the case against the defendants as carriers, for negligence, it appeared from the evidence that the defendants, if liable at all, were liable as wharfingers, on a contract to forward. Just before the plaintiff's counsel commenced his reply, he applied to the judge to amend the declaration, which, however, the learned judge refused to do, but left it to the jury to say, whether there was a contract to forward or a contract to carry, and they found that there was a contract to forward. He then directed the verdict to be entered for the defendant, but the special finding to be indorsed on the postea, that the court might proceed thereon according to the 3 & 4 W. IV. c. 42. s. 24. The court allowed the amendment and granted a new trial on payment of costs, observing that the learned judge might have allowed the amendment, and postponed the trial to a future day, pursuant to s. 23. of that statute b. SECTION III. JUDGE'S CERTIFICATE RESPECTING COSTS. By the statute of Gloucester, (6 Ed. I. c. 1,) a plaintiff was entitled to costs in every case in which he obtained a verdict, however small the damages or trivial the injury sustained might bec. But to prevent frivolous and trifling suits in the superior courts of law at Westminster, it was enacted by 43 Eliz. c. 6. s. 2. (extended to Wales and the Counties Palatine by 11 & 12 Will. III. c. 9. s. 1.) that, "if upon any action personal, brought in any of the king's courts at Westminster, not being for any title or interest of lands, 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 a Guest v. Elwes, 2 H. & W. 34. 6 N. & M. 433. b Parry v. Fairhurst, 2 C. M. & R. 190. 548. Wright. Piggin, 2 Y. & J. 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." The statute is confined to the judges of the courts at Westminster, and it empowers only the judge who tries the cause to give the certificate; therefore, in case of executing a writ of enquiry before a sheriff, the certificate cannot be granted *; nor has a sheriff or judge of an inferior court to whom a cause is sent by writ of trial, under 3 & 4 W. IV. c. 42. s. 17, the power of certifying under this act b. The certificate may be granted upon it at any time after the trial of the cause. The court above will not interfere where a judge has granted a certificate under this act, except upon the question whether he had power to grant such certificate, even though the judge may assign erroneous reasons for granting a certificate, for the court will presume that though the reasons assigned were erroneous, he had other sufficient motives d. Where, in trespass quare clausum fregit, and seizing the goods, the defendant pleaded not guilty, and that the goods were not the property of the defendant, the jury found for the defendant on the last issue, and for the plaintiff on the first, with 5s. damages, and the judge certified; held, that since Reg. Gen. H. T. 4 W. IV. r. 2. the case was not within the exception of this statute, which makes a judge's certificate inoperative, nor without the operation of 22 & 23 Car. II. c. 9. s. 136, and therefore that the judge was authorized to grant the certificate; for the judge and the court are not bound by the form of the declaration, they may take into consideration the whole record, and the matter contested at the trial, in order to ascertain what the action is for, and what it concerns, and to see whether the case was or was not within the operation of the statute a. But where in an action of trespass, quare domum fregit, with a count de bonis asportatis, the defendant pleaded the general issue, and accord and satisfaction, the question at the trial being whether a term of years had expired, and the jury found a verdict for the plaintiff, with damages under 40s. ; it was held, that the judge had no power to certify, for the freehold might come in question ". Where in an action of trespass against three defendants, two suffered judgment by default, and the jury found a verdict for the other defendant, and assessed the damages against the two at one farthing; held, that the judge might certify under the statute; for though the statute does not apply to writs of enquiry before the sheriff, and this was merely an assessment of damages, still the case was tried, so as to bring it within the words of the act. Where the plaintiff, in an action against an attorney, recovers less than 40s., the judge may certify under this statute, though the defendant could only be sued in a superior court 2. So where in an action against a husband for articles of dress supplied to his wife, the verdict was for 10s.; it was held, that the judge was warranted in certifying under this act. So where in an action for a libel, the defendant pleaded the general issue, and two special pleas, and at the trial the jury found all the issues for the plaintiff, with 1s. damages; it was held, that the judge was warranted in certifying, to deprive the plaintiff of the costs of all the issues found for him, notwithstanding the rule of H. T. 4 W. IV. 55—7 £. It has been held, that in an action for an assault and battery, the judge may certify, even though the battery be proved 8. But in a recent case, where in trespass for assault, and false imprisonment, and tearing the plaintiff's clothes, there was issue In actions of assault, if the damages be under 40s., the plaintiff will not be entitled to recover more costs than da mages, unless the judge certify. upon a new assignment to a plea of son assault demesne. The jury found a verdict for the plaintiff, with one shilling damages; held, that the judge had no power to certify under this statute, for by the special plea of justification the battery was admitted, and actions of battery were within the exception in the act, and not within the general enactment. The case of Wiffin v. Kincard was distinguishable from this, for in that case there was no special plea. As the admission of the battery was equivalent to a certificate under 22 & 23 Car. II. c. 9. and the case was not within the statute of Eliz., the plaintiff was entitled to his full costs, notwithstanding his certificate 3. Where a judge granted a certificate under this statute, and new facts, which did not appear at the trial, were subsequently laid before him on affidavit, he granted an order for annulling the certificate b. By the statute 22 & 23 Car. II. c. 9. it is enacted, that “in all actions of trespass, assault and battery, and other personal actions, wherein the judge, at the trial of the cause, shall not find and certify under his hand, upon the back of the record, that an assault and battery was proved, or that the freehold or title of the land mentioned in the plaintiff's declaration, was chiefly in question; the plaintiff, in case the jury shall find the damages to be under the value of forty shillings, shall not recover more costs of suit than the damages so found shall amount unto." This statute is confined to actions of assault and battery, and for local trespasses, when it is possible for the judge to certify that the freehold or title to the land was chiefly in question". The certificate required by this statute may be given at any time before final judgment d. The statute only restrains the court from awarding more costs than damages; the jury are not thereby prevented from giving what costs they please *. The statute does not apply where it does not appear on the record, or the judge cannot certify that the soil or free |