to a verdict on his justification. Where the plaintiff declares on a single act of assault and battery (y), to which the defendant pleads son assault demesne, the plaintiff cannot reply de injuria suâ propriâ, and also new assign that the defendant beat the plaintiff in a more violent manner than was necessary for the defence of himself; because such replication and new assignment constitute in effect a double replication, which is not allowed by the rules of pleading. Where the defendant pleaded (z) that the plaintiff was defendant's apprentice, and conducted himself improperly, wherefore defendant moderately chastised him; the replication de injuria was holden to put in issue only the cause alleged in the plea, (that is, whether the plaintiff misconducted himself as an apprentice,) and not the moderation of the punishment.

IV. Verdict and Judgment.

DAMAGES may be given in this action not merely for the corporal injury, which in many cases may be very small, but also for the degrading insult with which it is accompanied. A libel written by the plaintiff against the defendant may be given in evidence (a) by the defendant in mitigation of damages, although a cross action be pending for the libel. Against joint trespassers there can be but one satisfaction (b), and, therefore, if they are sued in one action, although they sever in pleas and issues, yet one jury shall assess damages for all; and if all the issues are found for the plaintiff, the jurors ought not to sever the damages; for, if they do, the verdict will be vicious (11). And if, in such case, judgment be entered for the separate damages, such judgment will be erroneous (c). But

(y) Franks v. Morris, 10 East, 81, n. (z) Penn v. Ward, 2 Cr. M. & R. 338. (a) Fraser v. Hon. G. Berkeley, 7 C. & P. 621, Abinger, C. B.

(b) Hob. 66; Heydon's case, 5th Resol. 11 Rep. 7.

(c) Crane v. Hummerstone, Cro. Jac. 118; Hill v. Goodchild, 5 Burr. 2791.

plaintiff's own assault, and the other not, if the defendant will justify one de son assault demesne, the plaintiff may make a new assignment of the other battery," per Cur. in Elwis v. Lombe, 6 Mod. 120. A new assignment, however, in these cases, is only necessary where there is but one count in the declaration; for if the declaration contain as many counts as there were assaults, &c., and some of them cannot be justified, the plaintiff may prove those without a new assignment. Bull. N. P. 17.

(11) On the trial of an action against two defendants, A. and B., it was proved that the assault by A. was more violent than that by B. Lord Ellenborough, C. J., told the jury that the damages could not be severed, so as to give more damages against A. than against B., but that they might give their verdict against both, to the amount which they thought the most culpable ought to pay. Brown v. Allen and Oliver, 4 Esp. N. P. C. 158. See Lowfield v. Bancroft, Str. 910, and Bull. N. P. 15, to the same effect.

before judgment, the defect of the verdict may be cured, by the entry of a nolle prosequi against all the defendants, except one, and taking judgment against that one only (d). So, if joint defendants suffer judgment by default, and the plaintiff execute separate writs of inquiry against them, whereupon several damages are given, it is irregular and if final judgment be entered for those damages, such judgment will be erroneous (e). But, before final judgment, the court will permit the plaintiff, in order to cure the error, to set aside his own proceedings, upon payment of costs, and to issue a new writ of inquiry.

V. Of the Costs; Certificate under stat. 3 & 4 Vict. c. 24. By stat. 3 & 4 Vict. c. 24, (3 July, 1840,) reciting the passing of the stat. 43 Eliz. c. 6, and 22 & 23 Car. II. c. 9, and that the evil arising from frivolous and vexatious suits still prevails and increases, and that it is expedient to make further provisions for the prevention thereof, it is enacted, (by sect. 1,) "That the said recited act of the forty-third of Elizabeth, so far as it relates to costs in actions of trespass, or trespass on the case, and so much of the twenty-second and twenty-third of Charles the second as relates to costs in personal actions, be repealed." And by sect. 2, "If the plaintiff in any action of trespass, or of trespass on the case, brought or to be brought in any of her Majesty's courts at Westminster, or in the Court of Common Pleas at Lancaster, or Durham, shall recover by verdict less damages than forty shillings, such plaintiff shall not be entitled to recover in respect of such verdict, any costs, whether it shall be given upon any issue tried, or judgment shall have passed by default, unless the judge or presiding officer before whom such verdict shall be obtained shall immediately afterwards certify on the back of the record, or on the writ of trial or writ of inquiry, that the action was really brought to try a right besides the mere right to recover damages for the trespass or grievance for which the action shall have been brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious." By sect. 3, it is provided, "That nothing herein contained shall extend to deprive any plaintiffs of costs in any action brought for a trespass over any lands, commons, wastes, closes, woods, plantations, or enclosures, or for entering into any dwellings, outbuildings, or premises in respect of which any notice not to trespass thereon or therein shall have been previously served, by or on behalf of the owner or occupier of the land trespassed over, upon or left at the last reputed or known place of abode of the defendant or defendants in such action or actions."

Unless it appear from the declaration that the action could not (d) Rodney v. Strode, Carth. 19.

(e) Mitchell v. Milbank, 6 T. R. 199.

really have been brought to try a right beyond the mere question of damages, the case is within the act, and the judge has the power of certifying; and the granting the certificate is entirely a matter for the discretion of the judge presiding at the trial (ƒ). "What the judge is called upon to do is to consider the object and design of the plaintiff in instituting the action, and if he is satisfied that the plaintiff conceived he had a right which might come in issue, the judge has a discretion vested in him to grant a certificate" (g). In this case a certificate was granted in an action for imitating the wrappers of a medicine invented by the plaintiff. In an action for libel, the judge may certify under this act, that the grievance for which the action was brought was wilful and malicious (h). An action on the case for the infringement of a patent, is within the operation of this act; and notwithstanding the provisions of the stat. 5 & 6 Will. IV. c. 83, s. 3, the plaintiff, recovering only nominal damages, cannot have his full costs, without a certificate under the 3 & 4 Vict. c. 24 (i). The operation of this statute is not limited to cases in which the judge has power to certify. Hence in an action on the case for negligently exposing ploughshares on a highway, whereby the plaintiff received severe injury; the jury having given a verdict for is. damages, and the judge having refused to certify, on the ground that it was not a case in which he had power to do so under the statute; it was holden that, although the action was not one in which the judge could grant a certificate, it was still within the statute, and the plaintiff was not entitled to his costs (k). The discretion exercised by the judge at Nisi Prius, cannot be reviewed by the court above (1).

After the trial of an action on the case for nuisance, and no application made in court under this statute for a certificate, that it was brought to try a right, but within a quarter of an hour after delivery of the verdict, such certificate was obtained from the judge, it was holden to be well given. Thompson v. Gibson, 8 M. & W. 281, recognized in Page v. Pearce, ibid. 677, in which case Lord Abinger, C. B., seems to have been of opinion, that the certificate need not necessarily be given on the same day as the trial, but that the object of the legislature was merely that the certificate should be the result of the judge's impression at the time. If the certificate is informally drawn up at the trial, it may be amended (m) afterwards, and even after a rule nisi has been granted for setting it aside.

By stat. 58 Geo. III. c. 30, reciting that it is desirable to prevent as much as may be, frivolous and vexatious actions of assault and

(f) Shuttleworth v. Cocker, 2 Scott, N. R. 47; 1 M. & Gr. 829; Barker v. Hollier, 8 M. & W. 513.

(g) Per Tindal, C. J., in Morison v. Salmon, 2 M. & Gr. 392; S. C. 2 Scott's N. R. 449, 454.

(h) Foster v. Pointer, 8 M. & W. 395.

(i) Gillett v. Green, 7 M. & W. 347. (k) Marriott v. Stanley, 1 M. & Gr. 853, 2 Scott's N. R. 60.

(1) Barker v. Hollier, 8 M. & W. 513. (m) Shuttleworth v. Cocker, 2 Scott, N. R. 47; 1 M. & Gr. 829.

battery, and for slanderous words, in inferior courts, it is enacted, (sect. 1,) that in all actions or suits of trespass for assault and battery commenced in any court having, or which by his Majesty's writ of justicies may have, jurisdiction to hold pleas to the amount of forty shillings, (other than his Majesty's courts at Westminster, the Court of Common Pleas at Lancaster, or the Court of Pleas at Durham,) if damages, upon trial of issue, or inquiry, are under forty shillings, the plaintiff shall recover only so much costs as damages. And by sect. 2, in courts not holding pleas to the amount of forty shillings, if damages under thirty shillings, the same law.

By stat. 8 & 9 Will. III. c. 11, s. 1," Where several persons are made defendants to any action or plaint of trespass, assault, or false imprisonment, and any one or more of them shall be upon the trial thereof acquitted by verdict, every person so acquitted shall have his costs in like manner as if a verdict had been given against the plaintiff and acquitted all the defendants, unless the judge, before whom such cause shall be tried, shall immediately after the trial thereof in open court, certify upon the record, under his hand, that there was a reasonable cause for making such person a defendant to such action" (n).

In assault and battery against several defendants, one let judgment go by default, and the others pleaded not guilty (o). On the trial, the jury gave damages against him who had suffered judgment by default, and found the other defendants not guilty: Wilmot, J., being desired to certify that there was a reasonable cause to make the others defendants, said, he thought the stat. 8 & 9 Will. III. c. 11, s. 1, did not extend to this case, but only to cases where some of the defendants are convicted by verdict, and others acquitted. In this case it is as if they had severed in pleading, and as if the action was against the others only and on these grounds he refused to certify.

By stat. 3 & 4 Will. IV. c. 42, s. 32, "Where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs, unless, in the case of a trial, the judge before whom the cause shall be tried, shall certify upon the record under his hand, that there was a reasonable cause for making such person a defendant in such action."

Where a previous statute had provided for the protection of officers acting in the execution of it, that a defendant acquitted should have full costs, &c., it was holden that a certificate under the 3 & 4 Will. IV. c. 42, s. 32, would not deprive him of such costs (p).

(n) See Furneaux v. Fotherby and another, 4 Campb. 137.

(o) Collins v. Harrison and others,

Worcester Lent Ass. 1757, MSS.
(p) Humphrey v. Wodehouse, 1 Bingh.
N. C. 506.

CHAPTER IV.

OF THE ACTION OF ASSUMPSIT.

I. Of the Action of Assumpsit, and of the Agreement for the Non-performance of which this Action may be maintained.

p. 41.

Of the Consideration. p. 42.

Forbearance of Suit, in what Cases a sufficient Consideration. p. 45. When not. p. 47. Consideration must move from Plaintiff. p. 49. Consideration must be such as the Party undertaking can perform. p. 50. Consideration past or executed. p. 51. The Agreement must be Legal. p. 56. Of Agreements contrary to Public Of Fraudulent Agreements. p. 63.

Policy. p. 59.

Immoral Agreements. p. 67.

II. Of the general Indebitatus Assumpsit. p. 68. Indebitatus Assumpsit for Money paid. p. 76. Money had and

received. p. 81. And on an Account stated. p. 68, n., 106. Payment to Agent. p. 102.

III. Of the Declaration. p. 106.

IV. Of the Pleadings. p. 121.

1. In Abatement. p. 121.

2. Of the General Issue, and the New Rules so far as they relate to the Action of Assumpsit. p. 121.

3. Accord and Satisfaction. p. 124.

4. Infancy. p. 128.

5. Payment. p. 136; and herein of Payment into

Court. p. 140.

6. Release. p. 141.

7. Statutes. p. 142.

1. Of Limitations. p. 142.

8. Tender. p. 158.

V. Damages. p. 163.

2. Of Set-off. p. 154.

Judgment. p. 164.

I. Of the Action of Assumpsit, and of the Agreement for the Nonperformance of which this Action may be maintained.

THE action of assumpsit is an action of trespass on the case, whereby a compensation, in damages, may be recovered for an