In actions if the da mages be under 40s., the plain the case was not within the statute of Eliz., the plaintiff was entitled to his full costs, notwithstanding his certificate." 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 of assault, 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 not be en- chiefly in question: the plaintiff, in case the jury shall find the titled to damages to be under the value of forty shillings, shall not remore costs cover more costs of suit than the damages so found shall amount unto." tiff will recover than da mages, tify. This statute is confined to actions of assault and battery, and unless the for local trespasses when it is possible for the judge to certify judge cer- 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. 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*1319 *hold came in question; therefore, where in trespass quare clausum fregit, since the new rules, the plaintiff had a verdict with 15s. damages on issue joined on a plea of not guilty; it was held, that he was entitled to full costs; for, on the plea of not guilty the soil or freehold could not come in question. Per Curiam, "Under the old plea of not guilty the defendant might have given in evidence that the freehold was his own. The effect of the new rules is to assimilate that plea to a special plea raising no question of title; and a series of decisions too strong to be overcome, have established that in such a case the plaintiff is entitled to costs without a certificate. But where in trespass quare domum fregit, the defend Bone v. Dawe, 5 Nev. & M. 230. 3 Ad. & Ell. 711. (30 Eng. C. L. 190.) 1 Har. & Woll. 311. Anderson v. Sherwin, 7 C. & P. 527. (32 Eng. C. L.) • Tidd. N. P. 531. Stead v. Gamble, 7 East, 328. Johnston v. Stanton, 2 B. & C. 621. (9 Eng. C. L. 202.) a Butler v. Cozens, 11 Mod. 198. Tidd. N. P. 531. • Id. See 1 Saund. 300, f. ' Per Parke, B., 1 Gale, 302. Hughes v. Hughes, 2 C. M. & R. 663. 1 Gale, 302. There are cases, however, since the new rules, in which the title may come in question on a plea of not guilty, ex. gr. By 11 Geo. II, c. 19, s. 20, a landlord may, under the general issue, give a distress for rent, in evidence. Similar privileges are given by various local acts, all of which are preserved by the proviso in 3 & 4 W. IV, c. 42, in favor of the power of pleading the general issue when conferred by any statute, see 1 Gale, 303, n.` The decision in Dunage v. Kemble, infra, throws some doubt upon the authority of this case, and see Howell v. Thomas, 7 C. & P. 342. (32 Eng. C. L.) If this case be ant pleaded not guilty, and an entry to make a distress for rent arrears, and there was a verdict for the plaintiff with one farthing damages on the first plea, and for the defendant, on the second, it was held, that the plaintiff was not entitled to costs without a certificate." If the defendant pleads in such a manner as to bring the freehold in question on the face of the record, a certificate is unnecessary to entitle the plaintiff to : costs." An interest in the water of a pump appurtenant to a dwelling-house, is an interest in land; therefore, when such an interest comes in question in an action of trespass, the judge cannot certify to deprive the plaintiff of cos:s, though the damages be under 40s.c An action for mesne profits is within the statute, and if the plaintiff recover less than 40s., he will be entitled to no more costs than damages, without a certificate. So, if a defendant plead a justification in trespass, and the plaintiff without traversing it new-assigns a trespass not concerning his title, &c., on which issue is joined and found for him, with less than *40s. damages, he shall be entitled to no more costs than da- *1320 mages.e Whenever the defendant lets judgment go by default, and justifies the assault and battery, a certificate is unnecessary to entitle the plaintiff to full costs. But if the defendant justifies the assault only, and the damages be under 40s., the plaintiff will be entitled to no more costs than damages, without a certificate." Where, however, in an action for assaulting, beating, wounding, ill treating, &c., the defendant pleaded the general issue, and justified as to the assaulting and ill treating only, by a plea of molliter manus, &c.; held, that the plea admitted a battery, and that a certificate was unnecessary to entitle the plaintiff to full costs.i Whenever the consequential damage is laid as an aggrava- Consetion of the trespass sued for, and the verdict is under 40s., the quential plaintiff can have no more costs than damages; therefore, damage. where in trespass for assaulting, beating, and turning out of a room, per quod, the plaintiff was prevented from exercising the business of an attorney, the defendant pleaded not guilty; held, that the plaintiff having obtained a verdict for less than 40s., was entitled to no more costs than damages.j not within the statute of Charles, it seems that it falls within the statute of Elizabeth, and that a judge may certify, to deprive the plaintiff of his costs, see Smith v. Edwards, ante, 1317. Dunnage v. Kemble, 3 Bing. N. C. 538. (32 Eng. C. L.) Littlewood v. Wilkinson, 9 Price, 314. e Tyler v. Bennett, 5 Add. & Ell. 377. (31 Eng. C. L.) 2 H. & W. 272. Doe v. Davies, 6 T. R. 593. B. N. P. 329. Smith v. Edge 6 T. R. 562. Bone v. Brennan v. Redmond, 1 Taunt. 16. Johnson v. Northwood, 7 Taunt. 689. s Daubney v. Cooper, 10 B. & C, 830. • Gregory v. Omerod, 4 Taunt. 98. 391. (2 Eng. C. L. 257.) 1 Moore, 420. So, where one count stated an assault on a man, and an assault on the horse on which he was riding, and the jury gave a verdict with general damages under 40s.; it was held, that the plaintiff should have no more costs than damages.a But where a declaration in trespass contained two counts, the first for assaulting the plaintiff and destroying a scraper affixed to his house; and the second for destroying the scraper; and the jury found a general verdict for him, damages 2s.; held, that he was entitled to his full costs. So there shall be no more costs than damages in trespass for an assault, battery, and tearing the plaintiff's clothes, if the 1321 jury *find that the tearing was in consequence of the beating, and give less than 40s. damages. Malicious с The stat. 8 & 9 W. III, c. 11, s. 4, enacts that " in all actions trespass. of trespass, 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 his full costs." Under this statute the judge may certify at any time between verdict and final judgment. The judge has a discretionary power to certify or not, according as it appears to him under the circumstances that the trespass was wilful and malicious. It is usual, however, to certify when it appears that the trespass was committed after notice. for a speedy SECTION IV. SPEEDY EXECUTION. Judge's THE 1 W. IV, c. 7, s. 2, enacts, "that in all actions to be certificate brought in his Majesty's courts in either of the superior courts of law at Westminster, by whatever form of process the same execution. may be commenced, it shall be lawful for the judge, before whom any issue joined in such actions shall be to be tried, in case the plaintiff or demandant therein shall become nonsuit, or a verdict be given for the plaintiff or demandant, defendant or tenant, to certify under his hand, on the back of the record, at any time before the end of the sitting or assizes, that in his a Banister v. Fisher, 1 Taunt. 357. Reece v. Lee, 7 Moore, 269. (17 Eng. C. L. 74.) • Cotterill v. Tolly, 1 T. R. 655. Wolley v. Whitby, 2 B. & C. 580. (9 Eng. C. L. 186.) Good v. Watkins, 3 East, 495. 1 Reynolds v. Edwards, 6 T. R. 11. v. Bond, Id. Swinnerton v. Jervis, 3 East, 497, n. Rudge En opinion execution ought to issue in such action forthwith, or at some day to be named in such cerificate, and subject or not to any condition or qualification; and in case of a verdict for the plaintiff, then either for the whole or for any part of the sum found by such verdict; in all which cases, a rule for judgment may be given, costs taxed, and judgment signed forthwith, and *execution may be issued forthwith, or afterwards, according *1322 to the terms of such certificate, on any day in vacation or term; and the postea with such certificate, as a part thereof, shall and may be entered of record, as of the day on which the judgment shall besigned, although the writ of Distringas Juratores, or Habeas Corpora Juratorum, may not be returnable until after such day. Provided always, that it shall be lawful for the party entitled to such judgment, to postpone the signing thereof." actions. Under this statute the judges originally refused to certify for The staimmediate execution in actions of debt on simple contract. tute apBut it is now settled that the statute applies to all actions where plies to all the judge thinks there ought to be immediate execution. A certificate for speedy execution has been granted in an action of assumpsit on a promissory note; and where the verdict. was taken by consent, though the consent did not include any such terms. So in an action for mesne profits in ejectment. So in an action of crim. con., where the plaintiff consented to be nonsuited. But where in debt on a bond the plaintiff did not assign breaches, and a verdict was found for him on a plea of non est factum, the judge refused to certify.s Where in an action for goods sold there was a special demurrer to a count for an account stated, and a verdict for the plaintiff on another count, the judge certified on the plaintiff's undertaking to enter a nolle prosequi as to the count demurred to. Where a certificate was granted and the defendant paid the sum at once, and a rule nisi for a new trial was afterwards granted, the court refused to order the plaintiff to pay the sum so received into court, pending the rule.i Affidavits were admitted in one case in support of an application for immediate execution, but rejected in another.k Replevin lies when ever goods are unlaw fully taken. WHEN REPLEVIN WILL LIE. REPLEVIN, which is a personal action, lies to recover the possession of goods and chattels unlawfully taken. Though in practice it is principally confined to cases of distress for rent, damage feasant, poor rates, &c.; yet it is applicable to all cases where there has been a wrongful taking. It is the proper form of action to recover a specific chattel. Replevin, it is said, lies for whatever is capable of being distrained and for nothing else; for at common law it is the proper remedy to try the legality of a distress. If a landlord seizes goods as a dis*1324 tress for rent, and a tender of payment is afterwards made but refused, the tenant may maintain replevin in respect of the unlawful detainer; for after the tender made, the detention was a new taking. Replevin But as replevin lies only where the goods are unlawfully does not taken, it has been held that it cannot be maintained for goods unjustly detained by a party to whom they have been delivered lie where Com. Dig. Tit. Replevin, B. N. P. 52. Shannon v. Shannon, 1 Sch. & Lef. 324. See Gilbert. Replev. 85. Wilkinson Rep. 2. Rore v. Wilkinson, 2 Stark. 287. (3 Eng. C. L. 349.) Att. Gen. v. Brown, 1 Swanst. 296. Woodf. L. & T. 696. As to what chattels are distrainable, see ante, 794. Neither the removal of a distress for rent from the demised premises after five days, nor any appraisement of the distress, takes away the tenant's right to replevy. Jacob v. King, 5 Taunt. 451. (1 Eng. C. L. 154.) 1 Marsh. 135. If the goods remain unsold, the tenant may replevy after five days. Anon. 1 Chit. 196, a. And see Griffiths v. Stephens, 1 Chit. 196. (18 Eng. C. L. 65.) d Evans v. Elliott, 2 H. & W. 231. 6 N. & M. 606. |