The simple and only question in this case is, whether the judge at Circuit committed an error in instructing the jury what damages would carry costs, and, also, in informing them, that, for any recovery for less than fifty dollars, the plaintiff could recover no more costs than damages.
The action is assault and battery, and the instructions were correct. Nearly forty years ago, Chief Justice SAVAGE, in delivering the opinion of the Supreme Court in the case ofElliott v. Brown (2. Wend. 497, 500), expressed the opinion, that it was proper to give the jury such instruction in an action of this kind; and, about twenty years ago, it was decided in the Supreme Court in the case of Nolton v. Moses (3 Barb. 31), that, in an action of slander, it was proper to instruct the jury as to what sum in damages would entitle the plaintiff to full costs, etc. The question was directly decided in that case, and Judge WILLARD, who, at the time, I think, had had a longer experience in the Circuit than any judge upon the bench in the State, said, it is common experience to appraise the jury as to the effect of their verdict upon the parties in respect to the question of costs; and that the practice had been expressly and repeatedly approved. The practice in the Circuit, so far as my acquaintance has extended, has been to give this instruction to the jury in actions of this kind, and for more than twenty years this practice has obtained with me. The appellant's counsel has argued this question upon his brief with an elaboration *Page 57 and earnestness as though a great principle was involved, and that it was vital to the administration of justice that the jury should be kept in ignorance as to the law of costs in this class of actions. I am not able to perceive any good reason why the jury should not be informed upon this subject, when all the costs under the Code are declared to be given by way of indemnity for the expenses of the party in the action. (Code, § 303.)
The rule having so long obtained with us, I do not think that the appellant's counsel has given us any sufficient reason for changing it, especially as the practice at the Circuit in this respect has been expressly approved by the Supreme Court in banco for more than twenty years.
I advise the affirmance of the judgment.
Judgment affirmed. *Page 58