case milbourn against read if any other trespass not within the statute car c  as a spoliation of personal chattel be state in the declaration in a action of  assault and battery as a substantive and independent injury and for which a  distinct satisfaction may be obtain in a separate action the plaintiff on a  general verdict in his favour shall have full cost though the damage be under  forty shilling S c barn note SC will cite this be a action of trespass wherein  the plaintiff declare that the defendant with force and arm do make a assault  upon the plaintiff in the parish of a in the county of Northumberland and do  there beat will and evil entreat the plaintiff so that his life be despair of  and do then and there also obstruct the plaintiff from set of coal and the  coal of the plaintiff there find take and carry away of the good and chattel  to the value of ten pound tread upon and spoil and one standard of the  plaintiff there late erect and one roller fix thereupon of the value of one  hundred shilling do take break and pull down and other good and chattel to the  value of ten pound do take and carry away there be a second count very little  variant from the first the defendant plead not guilty modern the jury find  that as to all the premise lie to the charge of the defendant he be thereof  guilty except as to the take away of the good and chattel in the declaration  mention and assess damage for the plaintiff by reason thereof to five shilling  and cost at five shilling and as to the take away of the say good and chattel  they find the defendant not guilty upon this verdict there be no certificate  of the judge that the assault c be sufficient prove or that the title c be in  question the question be whether the plaintiff shall be entitle to full cost  his damage be find to be less than forty shilling and whether his case be  within the statute of and car c S if it be he be clear not entitle to cost  because the judge who try the cause have not certify as that statute require  will chief justice the plaintiff in this cause have proceed to tax his cost  with the prothonotary and the defendant have obtain a rule to show cause why  such taxation shall not be set aside upon this foundation that the plaintiff  be not entitle to full cost his damage be under forty shilling and the judge  not have certify upon the statute of and car c S in order to give my opinion I  shall proceed through the several statute of cost I shall not say much of the  statute of Gloucester for undoubted by that the plaintiff be entitle to full  cost unless restrain by the late statute the only question be whether or no  the statute subsequent to that of Gloucester have prevent the plaintiff from  have full cost the first statute be Elizabeth c S who title be a Act to  prevent trifle and frivolous suit in law in her majesty court of Westminster  and which statute for its usefulness ought to have be put in execution though  it be never do so until the sit after last term although it be the only  foundation that the court of Westminster can go upon in the construction of  the statute of and car c S the statute of Elizabeth c S enact that if upon any  personal action to be bring in any of the court at Westminster not be for any  title or interest of land or concern the freehold or inheritance of any land  nor for any battery itself it shall appear to the judge for the same court and  so signify or set down by the justice before who it shall be try that the debt  or damage to be recover therein in the same court shall not amount to the sum  of forty shilling or above that in every such case the judge and justice  before who any such action shall be pursue shall not award for cost to the  party plaintiff any great or more cost than the sum of the debt or damage so  recover shall amount unto but less at their discretion this statute of  Elizabeth c have be take frequent in common consideration I do it say in legal  or judicial proceed to have give the judge a modern authority to certify in  order to entitle the plaintiff to cost but the case be just the reverse for  the plaintiff will have his cost as before by the statute of Gloucester unless  the judge certify upon the Elizabeth to prevent his have cost but as the judge  never certify upon the Elizabeth it have no effect at all for though modern er  p the suit be frivolous and the plaintiff recover less than forty shilling yet  he have still his full cost upon the statute of Gloucester and can be only  deprive of they by a certificate of the judge upon the Elizabeth c and it  appear from the case of reeves v buller bunb Rep Eq a that there have never be  any such certificate since the make of that statute if the present be a new  case I doubt whether I shall construe the statute of and car agreeable to the  late resolution I think I shall not but it will be a dangerous thing quietan  to move or to adjudge contrary to a great succession of case for above these  fifty year but I shall adhere to those case especial as the Iatter part of  that statute enact that where cost shall be give contrary to that statute the  judgement shall be void this be a strong reason with I for adhere to the many  late resolution for if I be to determine that this statute have be misconstrue  as to cost and that the judge have give great cost in some action without a  certificate than that Act of parliament entitle they to do I shall make all  those judgement liable to be reverse by writ of error in all case where such  writ of error be not bar by the statute of limitation it be true that  immediate after the make of the statute of and car the judge upon consultation  with the prothonotories seem to have be of opinion that that statute extend to  other action beside those of assault and battery and action of trespass quare  enclosed space to break in pieces as appear from the case of the earl of  Pembroke v Westale keb b something above two year after that statute be make  but since the twentyfifth year of Charles the second it have be the constant  uniform resolution of the court at Westminster that the statute of and car c  be not to be extend to other action but to be confine to action of assault and  battery and trespass quare enclosed space to break in pieces as appear from  the case of smith v Batterson raym t Jones show c the reason give in some book  to take a case out of the statute and car c be frivolous and idle as that  there be a destruction or spoliation of a chattel or a to carry away of a  chattel the talk in this way seem to show a endeavour in the judge to find out  a reason to take case out of the statute and because they can not find a good  one they be Willing to adopt any reason the spoliation and assonant of a mere  personal chattel be clear out of the statute for neither of they can amount to  a evidence that the title of the land be in question which be requisite to be  certify to bring the case within and car c in give my opinion in this case  that the plaintiff be entitle to full cost without a certificate from the  judge upon and car c do not modern at all rely upon a to carry away or the  spoliation of a chattel but lie they quite out of the case but what I rely  upon be that the plaintiff in no case where his damage be under forty shilling  needs the certificate of a judge to entitle he to full cost except either in  action for assault and battery or trespass quare enclosed space to break in  pieces which be the foundation of the judgement in the case of Venn v Phillips  salk and see Mr Evans note to the six edition of this work a and that of  Thompson v berry in the common plea easter term Geo report strange b on both  which case I find myself the judge in neither of these case pay any regard to  the spoliation or to carry away in the case of Venn v Phillips the court can  not go upon the to carry away of the hog for of that the defendant be find not  guilty nor can they go upon the spoliation or destruction of the sheep as  appear from the reason they give in the case which be that that statute extend  only to such case where the judge can certify and they can only certify in  assault and battery and trespass quare enclosed space to break in pieces for  the statute of and car c as to all other case but those two leaves they upon  the Elizabeth c think that effectual enough as to they since the make of the  statute and car c the plaintiff can have cost in assault and battery and  enclosed space to break in pieces unless the judge certify pursuant to the Act  but as to all other personal action wherein there can be no certificate upon  the and car c as debt assumpsit trover trespass for spoil his good or take his  good c they shall be consider out of the statute of the and car and in such  case the plaintiff though his damage be find to be under forty shilling shall  be entitle to full cost by the modern er p statute of Gloucester but if the  judge think the suit very frivolous and vexatious be may deprive the plaintiff  of the benefit of the statute of Gloucester by certify under the Elizabeth c  by which the plaintiff will be entitle to no more cost than damage and to less  if the judge think fit and I hope that good statute will be put in practice as  I have lead the way by certify upon it very late the next statute relate to  cost be the and will c S for prevent wilful and malicious trespass upon which  if any defendant shall be find guilty of a wilful and malicious trespass the  plaintiff shall recover not only his damage but his full cost of suit any  former law to the contrary notwithstanding this statute plain show that the  legislature do not understand the statute of the and car c in the same manner  as the court at law do videlicet to confine it to two sort of action but that  it extend to all other personal action for the statute of and will be intend  not only to relieve in the very same sort of action as the statute of Charles  the second do but give cost upon a different principle not to prevent  frivolous and vexatious suit as the statute of Charles the second be but of  all sort of wilful and malicious trespass and that not malicious trespass in  land only but of all sort and if the legislature through the statute of  Charles the second modern take away cost from no trespass beside trespass  enclosed space to break in pieces they have no reason to make the statute of  the and will c S general and so be extend to all trespass in order to  reconcile the two act of parliament there have be a construction put upon the  Iatter which I will not adhere to it be that the statute of William the three  extend only to enclosed space to break in pieces and the fact be that there  have be no certificate upon that statute but in enclosed space fregits though  the statute be not restrictive in its word but general of all trespass and  make to prevent wilful and malicious trespass general but there be other  action of trespass beside those of enclosed space to break in pieces wherein I  will grant certificate upon this statute though none be ever grant before in  action of trespass indeed for take good and chattel mere I will not grant  certificate upon this statute of William the three for the absurdity of it  because as we have determine that the statute of the and car extend only to  enclosed space fregits it will be ridiculous to certify he personal trespass  because in those the plaintiff though his damage find exceed not forty  shilling will have full cost upon the statute of Gloucester except the judge  certify upon the Elizabeth c to prevent his have full cost the case in which I  will certify upon the statute of the and will c S though not a trespass quare  enclosed space to break in pieces be in a action of trespass for a voluntary  and malicious assault which be not attend with a battery for I can certify  upon the statute Charles the second for a assault only but I must by the  express word of the statute certify that the assault and battery be sufficient  prove suppose a man draw his sword and swear be will stab I and strike at I  but miss I in this case I can certify upon the statute Charles the second  because there be no battery but I will certify upon the and will c S that such  trespass or assault be wilful and malicious and let the defendant deliver  himself from cost how he can such a dangerous assault much better deserve a  certificate upon the statute and will than many a assault and battery do upon  the statute and car I shall only take notice of two or three more little case  which do not come up to or influence the present such as the case in comb  Carthew vent all those case be plain within the statute of the and car c in  which case the plaintiff can not have more cost than damage if the Iatter be  under forty shilling except the judge certify for in all those case the  trespass be commit upon thing for the trespass on which the title of the land  may come in question they be either for pull up or throw down a hedge or for  dig of the soil or for stop a watercourse and overflow the land all which be  trespass upon the land and therefore within the statute and if the judge will  not certify that the title of the land come in question the judge do right in  refuse full cost the two case in vent be both of they enclosed space fregits  and be not mere personal and that be the reason which Lord modern chief baron  Gilbert go on in the case of butler v reeves bunb pale yellow Eq Rep a a case  which be very solemnly determine it be object that modern er p the plaintiff  shall not have full cost in this case because part of the verdict be within  the statute of the and car and that therefore the judge ought to have certify  that the trespass in the declaration be not only for the take break and pull  down of a standard and roller which be personal chattel but also for a assault  battery and wound and that as the damage find be under forty shilling the  plaintiff shall not be entitle to full cost unless the judge certify that the  assault and battery be sufficient prove but I be of opinion that that will not  alter the case but the plaintiff will be entitle to his full cost without a  certificate notwithstanding the defendant be find guilty of the assault  battery and wound for if that will make any alteration the defendant will need  only to clap it into the verdict and he will thereby deprive the plaintiff of  his cost but that find in the verdict shall make no alteration as to cost  since the defendant be find guilty of other thing in the declaration for which  the plaintiff be clear entitle to cost without any certificate from the judge  it be further object that the trespass of break the roller and standard be  such a trespass whereupon the title of the land may come in question and so a  certificate necessary to carry cost but the title of the land can not in the  present case come in question for the statute say that the plaintiff shall  have no more cost than damage where the damage be under forty shilling unless  the judge certify that the freehold or title of the land mention in the  declaration come chief in question now the present trespass commit upon the  standard and roller be not lie to be do on the land of the plaintiff or any  particular land but only general in the parish of a which plain show that the  title of the land can not come in question as the statute require and so out  of the statute and no need of a certificate for a certificate within the  meaning of the statute will be impossible to be make in the present case there  be no land lie in the declaration there be a argument use that suppose the  plaintiff can not have full cost in this case because his damage be find to be  under forty shilling unless he shall entitle himself to they by a proper  certificate yet there be a wound lie in the declaration and also find by the  verdict the court may upon view c increase the damage to above forty shilling  and then beyond all manner of dispute the plaintiff will be entitle to full  cost upon the statute of Gloucester and needs no certificate but there have be  a case cite raym in point where there be a wound lie in the declaration and  also find by the verdict yet hold that it will not carry cost and the rather  not for two reason the one that a wound be lie in every declaration of assault  and battery of course and it be not material whether the verdict find any  thing modern about it or not for I never know in my practice that upon not  guilty to the whole count of assault battery wound c that it will be necessary  to find the defendant not guilty as to the wound a maim or pregnant woman will  particular lie in a declaration be material but a general wound be of course  throw into declaration and we can increase the damage upon a general wound in  a declaration and verdict beside where the damage be only find under forty  shilling the wound must be trifle and inconsiderable so that I lie no weight  at all upon the wound the other reason against the wound be material be that  the judge be not bind or conclude by the verdict because if he be there will  be no room for a certificate but the power of certify be leave to the judge  let the jury find whatever they will so that the damage give do not exceed  forty shilling and as the judge be not bind by the jury find a battery he be  not bind by the jury find a wound I find my opinion upon the reason in the  case of Venn v Philips salk a and Thomson v berry without regard to  asportavits or spoliation which reason be that there be no case within the  statute and car c S but trespass quare enclosed space to break in pieces or  assault and battery and that in all other case a plaintiff who recover upon a  special action damage under forty shilling be entitle to full cost upon the  statute of Gloucester without any certificate upon the statute of Charles the  second unless he be prevent by a certificate upon the Elizabeth c S I be  therefore of opinion that the plaintiff be entitle to full cost modern er p  Abney justice be of the same opinion Burnett justice I be of the same opinion  the plaintiff in the present case be entitle to full cost and in order to  consider this matter it will be first necessary to state the verdict to see  what the defendant be find guilty of for what be be not guilty of may be lie  out of the case it be true that he be not only find guilty in a of the assault  battery and wound but also for tread upon and spoil the coal and break and  spoil the standard and roller not only in a mayhem but in a wound special  describe in the declaration or certify by a judge or make out by affidavit the  court have think themselves entitle to increase the damage but the present be  a general wound and be throw of course into the declaration as to increase the  damage that be not now before the court and therefore to be lie out of the  present case the whole will therefore depend upon the defendant be find guilty  of ail assault and battery and of the spoil of personal chattel upon which  there be no certificate although the damage recover be under forty shilling  the question be whether a certificate be modern necessary to entitle the  plaintiff to his cost the first statute be the Elizabeth c and by that in  personal action for assault and battery or where the title or inheritance of  the land be concern the plaintiff though he recover ever so small damage will  be entitle to his full cost upon the statute of Gloucester so he will in all  other personal action for assault and battery if the judge do not certify to  deprive he of they but the judge have a discretionary power to exclude the  plaintiff from full cost where his damage be under forty shilling in all  personal action but those of assault and battery or where the title or  inheritance of land be concern for in those he can certify to deprive the  plaintiff of full cost and though no certificate have be grant upon the  statute of Elizabeth till very late and by my Lord chief justice will vet many  book take notice that such certificate may be grantedSee styleman v Patrick  Mod and the case there cite a the reason why the judge have always refuse to  certify upon the Elizabeth c have be this perhaps that as cause be very  injudicious try in inferior jurisdiction in the country the court of  Westminster will not so far resend the plaintiff come into Westminster hall as  to certify upon Elizabeth c to deprive he of full cost where his damage be  under forty shilling especial as he have a evident right to sue somewhere as  appear by his obtain a verdict and they therefore think it too severe a law to  confine man to sue in country court where the judge be frequent so incapable  of determine proper however the defendant be entitle to a certificate upon the  Elizabeth c to deprive the plaintiff of full cost if the judge in his  discretion shall think the case deserve it the next statute be the car c S  upon which although it mention not only action in assault and battery and  trespass but other personal action in general the construction have be to  restrain it to two case only which be trespass quare enclosed space to break  in pieces and assault and battery the reason of such construction be this the  statute enact that in all action of trespass and assault and battery and other  personal action wherein the judge shall not certify in assault and battery  sufficient prove or that the title of the land come in question there shall be  no more cost than damage find be under forty shilling so that though the first  word be general yet the Iatter word be restrain to such action wherein there  can be such certify of the battery or the like Keble who though a inaccurate  reporter be a pretty good historian of the law prove to we that there be some  doubt in the court soon after this Act of parliament of the car in the case of  brown v tailor keb b that be a action upon the case for disturb the plaintiff  in his common and one penny damage and restitution of cost pray there be no  certificate on the trial but it be not allow for by the court it have be  resolve by the major modern part of the judge of England that the statute car  c extend only to trespass and assault and battery and not to action upon the  case or assumpsits or such like but this book do not only appear possible in  those two case only the next case be in keb and the judge by that determine  that the statute Charles the second be not confine to trespass quare enclosed  space to break in pieces only but take in other personal modern er p trespass  the next resolution be in Orpwood v hold keb a which be contrary to keb and  agreeable to keb the next case on the same subject be dicer v Stanton keb b  but it be adjourn after these come the case in raym Jones and show and that be  quite like the present case the trespass be lie general in the parish as this  be and not special in any land of the plaintiff so as to bring the title in  question and the court hold it out of the statute and full cost be give though  there be no certificate since that case there have be many uniform judgement  where a action of trespass of a personal chattel have be hold out of the  statute of Charles the second as to action of trespass quare enclosed space to  break in pieces for dig of the plaintiff soil and pull up his hedge c or  overflow his land these be injury immediate to the freehold and it be possible  for the title of the land to come in question upon such action the plaintiff  shall not have full cost without a certificate because it be a case within the  statute and whereupon the judge may certify that the title of the land come in  question but if the plaintiff have declare further as that beside the break  and enter the close and pull up the hedge the defendant have carry it away and  the jury have find he guilty of the pull up the hedge as well as the former he  shall have his full cost without a certificate Com Rep c the pull up the hedge  be a plain injury to the freehold but when it be pull up and sever from the  freehold it cease to be part of it and the owner of the land have it as a  chattel in which case if the trespasser carry the hedge away or burn or  destroy it all these be personal injury and out of the statute and a action  will lie as in the case of spoil any other chattel and there be a spoliation  of a chattel in the present case upon which the party may have bring his  separate action and have recover full cost without a certificate see Caruthers  v lamb barn Cotterel v Tolly term Rep Atkinson v Jackson cite h Bl Rep mare v  Greenway h Bl Rep see also hullock on cost where all the case on this subject  be collect d