
    George Hillman vs. Jotham Whitney.
    a plaintiff is entitled to full costs who recovers as damages a sum exceeding twenty dollar? in the aggregate, on different counts in his declaration, although he recovers no more than twenty dollars on any one count.
    Tort. First count, for trespass quare clausum; second count, for slander. Verdict for the plaintiff, with damages on the first count, one dollar, and on the second count, twenty dollars. The clerk taxed full costs for the plaintiff, and Fose, J. affirmed the taxation. The defendant appealed to this court.
    
      W. Griswold, for the defendant.
    S. T. Field, for the plaintiff.
   Metcalf, J.

This action having been brought originally in the superior court, the plaintiff would have been entitled to no costs, if he had not recovered, as damages, a sum exceeding twenty dollars. Gen. Sts. c. 156, § 5. But the judgment which he recovered was for more than twenty dollars; it being for the aggregate of the several sums assessed by the jury, as damages, on the different counts in the plaintiff’s declaration. The jury had a right to assess entire damages on all the counts, or separate damages on each count. Payne v. Selby, 1 Rol. R. 423. 1 Chit. Pl. (6th Amer. ed.) 445. And as they took the latter course, judgment was rendered in the proper form, to wit, for the amount of the sums that were separately assessed. See 2 Richardson’s Practice in C. P. (7th ed.) 263. Smith v. Festiniog Railway Co., 6 Dowl. P. C. 190, and 3 Hodges, 305.

The objection now made by the defendant, that here was a misjoinder of counts, comes too late to be heard. It should have been made by demurrer, or otherwise, before trial. Gen. Sts. c. 129, §§ 11, 12, 79.

Taxation affirmed.  