1 Cow. 160 | N.Y. Sup. Ct. | 1823
It is a sufficient answer to the application for trebling the damages, &c. that the verdict is general on both counts. To entitle the plaintiff to have the damages and costs trebled, it should have been on the first count only, which was upon the statute.
As to the application for single costs, the argument seems to have proceeded upon a misapprehension of the 7th section, which does not give costs, in the Common Pleas, in trespass on land, riot concerning freehold or title, though the; Court should certify that the trespass was wilful and mali-. cious. This is an action provided for in the 5th section, which expressly regulates costs in all actions (in the Com? mon Pleas) not concerning any freehold or title, of land, nor
Rule accordingly,
Vid. sess. 41, ch. 94, s. 5 and 16. The revision of Kent & Radcliff, (vol. 1, 530, s. 8) gave costs in all Co.urts of Record, where the verdict, in trespass, was for the" plaintiff, and the Judge certified, upon the record, that the trespass was wilful and malicious. This being inapplicable to the Common Pleas, (composed of Judges, and taxing before any record was made,) the statute," (sess. 27, ch. 59, 3 Webster, 461) gives the same effect to an entry in the minutes of the Common Pleas," under their direction, that the trespass was wilful smd malicious. These provisions seem to have been virtually repealed by the revision of 1813; "and thfe plaintiff in most cases of small trespasses, though wilful and malicious, is now left to his remedy in a Justice’s Court, if he does not mean to be mulcted in costs. '