In a case where a general verdict was taken generally for the plaintiff, the court refused to entertain an application for entering the verdict on particular counts, according to the evidence on the judge's notes, after a lapse of eight years, and after the judgment had been reversed in error, for a defect in one count.25 And it seems that, in a penal action, if the jury find a verdict for the plaintiff, with one penalty generally, and the plaintiff apply it to one count, he cannot afterwards apply it to another, though the former be bad in law, and though the evidence would have warranted the verdict on any other count.26

single da

Double and treble damages.] At common law the damages are always single; but in some cases double and treble damages are given by statute.27 The proper course, in such case, is for the jury to find the single damages, and the court Jury to find will then double them.28 But the jury may themselves double mages. or treble the damages;29 and unless they assess the single damages in terms, the court will intend that they have done so, or that the defendant has brought himself within the provisions of the act, and will not increase the damages on motion.3 30

To entitle the plaintiff to recover the increased damages, he must refer, in his declaration to the act, that the defendant may be apprised of the extent of his demand.31

25 1 Barn. & Ald. 161.

26 3 Durn. & East. 448. 5 Taunt.

2. sed vide 3 Burr. 1237.

291 Cowen. Rep. 175.

30 Ib.

31 8 Johns. Rep. 342. 1 Cowen.

27 See R. St. P. 3. Ch. 5. T. 6. Rep. 175. 176. et vide ib. 584. 8

s. 1. 4. Vol. 2. p. 338.

28 1 Galison. 26. 479. Cas.

Temp. Hardw. 132. n.

Cowen. Rep. 115.

CHAPTER IX.

OF FINAL COSTS.

Costs interlocutory or final.

Costs are either interlocutory or final. Interlocutory costs are such as are awarded, on interlocutory matters arising in the course of the suit; of these, it has been found more convenient to treat, in accordance with the method observed in books of practice, in considering the matters to which they immediately relate. Final costs, which form the subject of this chapter, are such as depend upon the final event of the suit, and are incorporated in the judgment.

SECTION I.

OF THE GENERAL RULES AWARDING, REGULATING AND LIMITING

COSTS.

Practice at common

law.

At common law, neither the plaintiff nor defendant was entitled to costs. And the defendant was wholly without remedy, for any expenses he had been put to, whether he had a verdict in his favour, or the plaintiff were nonsuited; but the plaintiff, in all actions in which damages were recoverable, if

12 Inst. 288. Hardw. 152.

he had a verdict, was in effect allowed his costs; for the jury always computed them in his damages: and costs are now considered, in a legal sense, as being parcel of the damages.2

3

Costs incident to judg

Final costs are so much an incident of the judgment, that it is a genral rule, that, in order to recover them, they must be ment. awarded and incorporated in the final judgment; so that if the suit abate before judgment, by the death of a party, the right to costs is gone. But the plaintiff's costs are not so far parcel of the damages, that they must be confined within the amount laid in the declaration; but if the plaintiff recover a verdict to the full amount of the damages laid, he is entitled to his costs in addition.4

Where there are several defendants, each of them is answerable for the whole costs; and if they succeed in the action, the plaintiff may pay costs to which of them he pleases. If the parties settle the suit, without noticing the costs, neither of them is entitled to recover costs against the other."

The particular amount which the plaintiff or defendant is entitled to recover, depending upon the nature and extent of the services rendered by their respective attornies, and the fees required by law to be paid by witnesses, and the sheriffs and other officers of the court, may be gathered principally from the title in the revised statutes, prescribing "the fees of certain officers." The general rules regulating the recovery of costs, as depending upon statutory provisions, and the construction that courts have put upon them, will form the subject of consideration in the present chapter.

General rule.

Actions relaring to real estate.

Title to lands, &c.

Scire facias,

&c.

Personal actions.

Of the plaintiff's costs.] It may be stated as a general rule that where the plaintiff recovers, he is entitled to his full costs of suit. This rule, however, is subject to many excep tions: in some actions it is universally true, but in others, and generally in personal actions, the costs depend upon the amount recovered; and in certain cases they are limited by

statute.

It is provided by statute, in the title relating to the recovery of costs, that" in the following cases, if the plaintiff recover judgment by default, upon confession, verdict, demurrer, or otherwise, in any action or proceeding at law, he shall recover the costs allowed for services in the court in which the action shall be brought:

1. "In all the actions relating to real estate, enumerated in the fifth chapter of this act; and in all proceedings to recover the possession of land, forcibly entered or forcibly obtained: 2. "In all actions in which the title to lands, or tenements, or a right of way,10 or a right by prescription or otherwise, to any easement in any lands, or to overflow the same, or to do any other injury thereto," shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause:

3. "In suits and proceedings upon writs of scire facias, mandamus, audita querela, or prohibition, or informations in the nature of quo warranto."12

The plaintiff is also entitled to full costs of court" in all personal actions, brought for the recovery of any debt or

9 2 R. St. p. 302.

10 Conformable to decision in 1 Johns. Rep. 146.

"This is new as a statutory provision, but conformable to decisions in 2 Johns. Rep. 185. 3 Cowen. Rep. 382; it seems, however, to go further than antecedent decisions. See 3 Johns. Rep. 450. See likewise 11 Johns. Rep.

405. 13 Johns. Rep. 306. 1 Cowen. Rep. 568. 4 Cowen. Rep. 531. These decisions are referred to as illustrative of the former practice, but not particularly noticed, as they seem either superseded by the revised statutes, or inapplicable.

13 R. St. P. 3. Ch. 10. T. 1. s. 3. Vol. 2. p. 613.

damages, and in all actions for penalties or forfeitures, whether brought by any person aggrieved, or by any public body or officer, or by any informer for his own benefit partly or wholly, 13 commenced in the supreme court, where the recovery exceeds two hundred and fifty dollars."14 If the amount recovered be two hundred and fifty dollars, or less, and more than fifty dollars, the plaintiff's costs are after the rate allowed for similar services in the courts of common pleas : but if he do not recover more than fifty dollars, he is not entitled to any costs, except in the actions and cases we shall hereafter notice.15

To entitle the plaintiff to costs under these provisions, he → must recover fifty dollars, exclusive of costs; the recovery spoken of means the damages assessed by the jury eo nomine : therefore if the jury give the plaintiff fifty dollars damages, and six cents costs, he is not entitled to costs of increase.16 But Damages in if a plaintiff recover two hundred and fifty dollars debt, on a single bill, and also damages for the detention of it, he is entitled to the full costs of this court.17

In a judgment by default in debt, nominal damages are not given; and so where judgment was for the plaintiff by nil dicit, for two hundred and fifty dollars, the penalty of a bond, it was held that the plaintiff could not add nominal damages, so as to raise it above two hundred and fifty dollars, in order to carry supreme court costs.1

18

debt.

penal bond.

In an action on a penal bond, or on the penalty in articles Action on of agreement, the judgment is properly for the penalty in all cases except where the sum is reduced by set-off under the statute;19 and the plaintiff recovers costs according to the

15 R. St. Ib. s. 5. 8. Vol. 2. p. 21. Vol. 2. p. 355. 613. 614.