
    William Galloway versus Michael Pitman and Jacob Morbinger.
    In trepass for an assault and battery against two defendants, a verdict is rendered against both, and joint damages, less than four pounds, assessed; the plaintiff reviews the action, and on the second trial, a verdict is found for one of the defendants, and against the other, and damages assessed against him above four pounds ; the first defendant recovers his costs, and the plaintiff recovers costs against the second; but whether costs of both trials, or of the review only, quaere, and vide Lincoln vs. Goulding, ante, 234.
    This was an action of trespass for an assault and battery. The defendants severally pleaded not guilty, and upon the first trial, the jury, finding them both guilty, assessed damages against them jointly, in the sum of ten dollars. The plaintiff reviewed the action, and at the last April term, in this county, the jury found Morbinger not guilty, and Pitman guilty, against whom they assessed damages in the sum of sixteen dollars and seventy-five cents.
    
      Putnam,, for the plaintiff,
    contended that it was ascertained by this last verdict, that the plaintiff ought, on the original action, to have recovered more than four pounds, in which case, full costs would have been taxed, and he now moved the Court to allow him the difference, between 2 dollars, 50 cents, the costs taxed in the original action, and the full costs.
    * The defendants’ counsel cited the case of Billerica [ * 409 ] and Carlisle 
      , and relied upon it as settling the question.
    
      
      
        2 Mass. Rep. 158.
    
   The Court ordered judgment to be entered as follows:—

“ It is considered by the Court here that the said former judgment be reversed; and that no execution issue thereon; and that the said William Galloway recover against the said Michael Pitman, the sum of sixteen dollars and seventy-five cents, damage and costs. And that the said Jacob Morbinger recover his costs against the said William Galloway.”

Prescott and Story, for the defendants.

Note. The Court (absente Parsons, C. J.) declined giving an opinion whether the plaintiff was entitled to the costs of the original action, or of the review only, and left the plaintiff to take such costs as he would risk . 
      
      
        [Billerica vs. Carlisle, 2 Mass. 158.—Lincoln vs. Goulding, 3 Mass. 234.—Ed.]
     