
    Heath against M'Inroy.
    ALBANY,
    August, 1810.
    In actions of trespass, it rests in the discretion of the judge, at the trial, to certify,whether the trespass was wilful and malicious, so" as 1 entitle the plaintiff to full costs ; •and if he refuses, the" court will not interfere, on an appeal frontil is decision.
    
      It seems, that a voluntary trespass is not, per se, wilful and matiqious,within the meaning of the act; (24 sess. c. 170. s. 8.) but it should appear to be done mala jide, or with an intention to .lijare or vex the plamtiftj or with a consciousness of violating right.
    THIS was.an action of trespass, and was tried at the Washington circuit, on the 19th of June, 1810, before Mr. Justice Van Ness.
    
    It was proved, that the plaintiff, being at a tavern, with a sleigh and horses, the defendant took one of the horses out" of the sleigh, and led him away, though charged not to do so, by the plaintiff. It appeared that one Crandall, an officer, had an attachment against Chittenden, at the suit of the defendant, and the defendant requested him to take the horse in question, "which he refused to do; upon which the defendant took the horse and delivered him to the officer, on the attachment, as the property of Chittenden. The attachment was never returned. It fur-, ther appeared, that the horse in question, had before belonged to Chittenden, who delivered him to Heath, as security for a debt, for which an attachment had been is'-sued by Heath, against Chittenden, but no ¿rial ever took place. The jury found a verdict for the plaintiff, for 50 dollars damages, and six cents costs.
    The plaintiff’s counsel applied to the judge, to certify that the trespass was wilful and malicious; but the judge refused to grant the certificate, and referred the plaintiff to the decision of the court, as to the propriety of granting it.
    
      Crary, for the plaintiff,
    now moved, that the judge, before whom -the cause was tried, should endorse his certificate On the. record. He cited, Laws of New-York, vol. l. p. 530. sess. 24. c. 170. s. 8. 2 Sellouts Hr.-436. 6 Term, Rep. 11.
    
      Z. R. Shepherd, contra.
   Per Curiam.

The better construction of the statute seems to be, and such is now the construction given to it, in England, (Good v. Watkins, 3 East, 495.) that it rests in the discretion of the judge who tries the cause, to determine, from the testimony, whether the trespass was wilful and malicious ; and if the judge refuses, the K. B. will not interfere. The court will not, therefore, make any order in this case. Some of the cases on the construction of the statute (for the statute of 8 and 9 W. III. and ours is the same) have been rather rigid, both in England and in this court; and if the court were now to give an opinion, we should not be inclined to consider every voluntary trespass, per se, wilful and malicious. This appears to be too narrow a construction} the statute seems to have meant, by the words -wilful and malicious, some act done mala fide, or with an intention to injure or vex the plaintiff, or with a consciousness of violating right.

y Motion denied.  