Majority
p. 90Vielie ads. Towers. under a motion<c that the certificate of the judge be vacated,” now brought up the question whether this certificate is conformable to the 5th section of the act entitled, “ An act to si reduce the laws concerning costs into one statute,” passed the 12th of February, 1787. He contended, that, agreeably to this act, the certificate must be granted by the judge sedente curia, and could not be granted with any effect afterwards : such he said was the English statute, and such their practice under it.
Headnote
THIS was an action of assault and battery, and a verdict for the plaintiff at the circuit, for six cents damages and six cents costs. A certificate was given by .the judge who presided at the trial, to entitle the plaintiffs to full costs, but it' was- not given at the trial.Woodworth, for the defendant,
The statute enacts, “ that in all ac-st lions of trespass and assault and battery, commen-' 61 ced or prosecuted in the supreme court, wherein 66 the judge at the trial of the cause, shall not find and <6 certify under his hand upon the back of the record, 5< that an assault and battery was sufficiently proved, “ or that the freehold or title'of the land mentioned 61 in the plaintiff’s declaration, was chiefly in question, u the plaintiff in such action, in case the jury shall ct find the damages to be under forty shillings, shall u not recover or obtain more costs of suit than the damages so found shall amount to.” This provision, being reasonably interpreted, means only that
p. 91
':he certificate should be given by the judge who presided at the trial, and not that the act of making out the certificate should be performed then.