
    John Williams vs. William Perkins.
    
      Error from Bibb Circuit Court.
    
    The statute which designates the actions in which, if the plaintiff should not recover more damages than five dollars, he cannot recover more costs than damages, is not to be construed as embracing the action of trespass, guare clausum fregit,-among those actions.
    The actions, subject to this limitation as to costs, are slander and trespass for assault and lottery.
    
    This was an action of trespass quart clausum fregit, brought by Williams against Perkins, for entering upon his grounds and taking his rails. The plaintiff obtained a verdict; but the damages recovered did not exceed five dollars. The court below refused to give judgment against the defendant for full costs, arid gave a judgment, against him for costs to the amount of the damages recovered, and no more. For this alleged error in the court below, the plaintiff in error, Williams, who was also plaintiff below, has brought the case before this court for revision.
    Freeman, for Plaintiff in error. ' ■
    In this case, the court below determined that, from the smallness of the damages, we were not entitled to full costs. This is not one of that class of cases in which the statute limits the costs to the amount of damages. The cases mentioned in the statute, to which this limitation applies, are, Slander or Trespass, Assault and Battery. — Aikin's Digest, 361. The action of trespass quart clausum fregit, is not intended to be embraced by the statute. This, I hold to be dear from the grammatical construction of the language employed. It is true, that in the statute, as printed, there is a' comma after the word trespass ; but this should not lead us to suppose that trespass was here intended to designate an action distinct from assault and battery : the position of the conjunction or will not admit of such a construction. The rule is, that where several things are named, the conjunction or or and comes next to the last one mentioned. It has been decided by this court, that trespass, to try titles, is not embraced by the statute ; and there is no reason, that can be drawn from the language of the law, why trespass quare clausum fregit should be embraced rather than trespass, to try titles» Assault and battery is not used as the name of an action, in general: the true name of the action is trespass assault and battery.
    ' Pickens, contra.
    
    The meaning of the law may perhaps be best understood,, by attending to what must have been its object. The object doubtless, was to prevent frivolous and vexatious law suits. This applies with as much force, to actions for trespass on land as to those for trespass on the person. Being guided by the object of the law, it is not difficult to construe it» We are not driven to the necessity of relying on the position of a comma or of a conjunction. A man may lay himself liable to a legal action if he but jumps over a fence, and cuts a walking cane. But if men will bring suit for such frivolous causes, and if they recover but a few cents in damages, they ought not to be permitted to recover full costs. This would'be giving too much encouragement to these frivolous actions. The construction which is conformable to the object of the law, is also that which I regard as the grammatical construction of the language. Trespass, as well as assault and battery, is embraced by its terms.
   By Mr. Chief Justice Saffold :

Williams brought, in the Circuit Court, an notion of trespass quaro clausum fregil against tbe defendant. The injii-ry complained of was, that Perkins had unlawfully entered upon the plaintiffs land, and taken and carried away his rails, &c.

A trial was had, in which the plaintiff recovered, by verdict, damages to an amount not exceeding five dollars.— Whereupon, the court rendered judgment in favor of the plaintiff for the amount of damages so recovered, and only the same amount of costs, and against the plaintiff for the residue.

The error assigned is, that fhejdaiiitiff should have been allowed full costs against the defendant.

The law by which the court is supposed to have been governed, is, the statute of 1822, which provides, that “ In all suits brought to recover damages for slander or trespass, assault and battery, the plaintiff shall not recover more costs than damages, if the damages do not exceed five dollars, unless the Judge, before whom the suit was tried, shall certify that more damages ought to have been awarded by the j"ry.” It is not contended that such certificate was given, but that the statute does not apply to a case of this nature. This is the only question for consideration.

The language of the statute is rather equivocal. Jt uses the generic term trespass, preceding and following it, with designated actions, both of which, as well as many others, are embraced in its comprehensive sense. If this term was in- ■ tended by the legislature to bo understood in. its greatest latitude, it was entirely unnecessary to have expressed either the actions of slander or assault and battery, for both these and a large proportion of all the actions known to the law would have been included by the former alone. In order to explore the intention of the legislature in the language employed, it may be useful to consider the effect of a latitudinous construction of the term trespass. It could be made to embrace all actions for injuries riel armis — all actions upon the case arising ex delicto or ex contractu, of each of which classes there is a great variety. It is true the action o.f “trespass” merely, in its technical acceptation, is not so applicable to wrongs or injuries, unaccompanied with force, as the action of “trespass on the case,” yet the same term is embraced in the title of each, and in common acceptation, is often applied to either. From the express designation of the action of slander, and also of assault and battery, when the former could have been fully embraced by inserting the action of trespass on the case, and the latter by the action of trespass alone, or trespass vi etarmis, the legislature must have intended to limit or qualify the term trespass. It is also irrational to suppose that even all actions of trespass vi el arniis could have been intended. We have heretofore held that the action of trespass to try titles, was not embraced. For many other injuries Committed with force and arms, the reason of the statute is equally inapplicable. We therefore think that the only safe and legal construction that can be placed on' the terms trespass, assault and battery, as used in the statute, is, that the latter terms were intended to restrict and limit the former, and that the action of trespass for assault and battery alone is provided for by them.

the report of the case of Reed vs. Gordon, the words of the statute are inaccurately quoted; (as was suggested in argument,) the manuscript opinion of the court recites the statute as I have done, omitting the disjunctive conjunction or between the words trespass and assault and battery ; such also is the true expression of the statute.

We therefore reverse the judgment below, and render judgment in favor of the plaintiff for his full.costs. 
      
      Aik. D. 261 Section 21.
     
      
      2 Stew. 469.
     