By the Court,
Cole J.■ Tbe judgment in tbis case was in favor of tbe defendant in error, for $13 50 damages, and for $44 27 costs of suit. Tbe action was for trespass for injuries committed on tbe wife of tbe defendant in error. Tbe amount of damages claimed was five hundred dollars. Tbe only question is as to the amount of costs tbe prevailing party was entitled to recover. On tbe one hand, it is insisted tbat be was entitled to recover full costs; while on tbe other, it is claimed tbat be was entitled to no costs, but that tbe plaintiff in error should have bad costs. We do not think either of these positions correct.
The action is most unquestionably one for an assault and battery on tbe person of Mrs. Janish. Tbis the complaint conclusively shows.
By subdivision 4, section 38, cbap. 133, R. S., it is provided tbat in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction, if tbe plaintiff recover less than fifty dollars damages, be shall recover no more costs than damages. Tbis provision of law is decisive upon tbe question raised in this case. Where tbe recovery is less than fifty dollars in tbe above classes of cases, the party can recover no more costs than damages. Section 39 provides tbat costs shall be al*617lowed of' course to tbe defendant in tbe actions mentioned in tbe previous section, unless tbe plaintiff be entitled to costs therein. In tbe present case, however, tbe plaintiff was entitled to costs to tbe amount of bis damages. It is obvious then, that the defendant below cannot claim costs under this section, since it only applies to cases where tbe plaintiff is not entitled to costs. See Dunning vs. Falkner, 10 Wis., 394; 1 Burrill’s Practice, 272.
Tbe judgment in this case must be modified so as to give tbe plaintiff below only $13 50 costs, that being tbe amount of damages recovered.