Majority
p. 199*Spalbergh against Walrod.
Headnote
In an action of trespass quare domum fregit, and for assault and battery, &c., and a general verdict for the plaintiff for ten dollars damages, the plaintiff was allowed to recover costs.The plaintiff declared in trespass quare domum fregit, and for ah assault and battery on his daughter and debauching her, per quod servitium amisit, &c.
On'the trial the plaintiff obtained a verdict with ten dollars damages.
Gold, for the defendant,
moved for costs against the plaintiff on the ground that this was, essentially, an action on the case, and not within the spirit or intent of the act allowing costs in actions of trespass quare clausum fregit, or in assault and battery, where the recovery exceeds forty shillings. (10 Sess. c. 14.)
Van Vechten, for the plaintiff,
contended that this was properly an action of trespass for entering the plaintiff’s house, and this alone, without regarding the other charges laid in the declaration, was sufficient to entitle the plaintiff to costs.
delivered the opinion of the court. The
p. 200
application respects the costs only; we are, therefore, not now to consider whether the declaration contains separate counts, or blends in the same count different causes of action which cannot be joined. One of the injuries complained of is the breaking the plaintiff’s house, and of this the defendant is found guilty by the verdict, which is general, and applies to all the matters charged in the declaration. The plaintiff is, therefore, entitled to costs, instead of being hablé for costs to the defendant.[1]
Rule refused.
(a) (a) Gra. Prac., 2d ed„ 715, 720.