whom the law did not shew any favour. But now, by stat. 21 Jac. 1. c. 16. s. 5. "In all actions of trespass quare clausum fregit, wherein the defendant shall disclaim in his plea, to make any title or claim to the land, and the trespass be by negligence or involuntary, defendant may plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender of sufficient amends before action brought."

To this plea the plaintiff may reply a latitat sued out", with an intention to declare in trespass before the tender.

V. Costs.

THE statute of Gloucester having given costs in all cases where damages were recoverable, it followed as a necessary Consequence, that wherever the smallest damages were recovered, the plaintiff obtained his full costs. This was productive of so much inconvenience, by encouraging vexatious suits, that the interposition of the legislature was deemed necessary, in order to confine the operation of the statute of Gloucester. For this purpose it was enacted by stat. 22 & 23 Car. 2. c. 9., that " in all actions of trespass, assault and battery (25), and other personal actions, wherein the judge, at the trial of the cause, shall not find and certify under his hand, upon the back of the record, that an assault and battery was proved, or that the freehold or title of the land mentioned in the plaintiff's declaration, was chiefly in question; the plaintiff, in case the jury shall find the damages to be under the value of forty shillings, shall not recover more costs of suit than the daniages so found shall amount unto."

Notwithstanding the general words" "other personal actions," this statute has been uniformly construed to be confined to the two species of actions therein specially named, viz. trespass, and assault and battery; and that the action of

m Watts v. Baker, Cro. Car. 264.

n Salk. 208. Milburne v. Reade, 3 Wils. 323. per Willes, C. J.

(25) For the cases on this statute relating to assault and battery,

see ante, p. 39.

ஆ

trespass is confined to trespass quare clausum fregit, wherein the freehold or title to the land may come in question.

It may be laid down as a general rule, that all actions quare clausum fregit, wherein the plaintiff merely declares for an injury to the freehold, or to something growing upon, or affixed to the freehold, as breaking a lock affixed to plaintiff's gate, are within the statute. And this rule holds, although the declaration charges the defendant with taking and carrying away a portion of the freehold, provided such taking and carrying away be merely a mode or qualification of the injury done to the land.

In an action of trespass quare clausum fregit, it was stated in the first count, that the defendants broke and entered the close of the plaintiffs; and the grass of the plaintiffs, there then growing, with their feet in walking trod down, spoiled, and consumed, and dug up and got divers large quantities of turf, peat, sods, heath, stones, soil, and earth of the plaintiffs, in and upon the place in which, &c. and took and carried away the same, and converted and disposed of the same to their own use. There was another count, upon a similar trespass, in another close. The defendants pleaded the general issue to the whole declaration, and two special pleas to the second count; and on the trial, a verdict was found for the plaintiffs on the general issue with one shilling damages; and for the defendants on the special pleas, and the judge had not certified. It was holden, that the plaintiff was not entitled to any more costs than damages, Lord Mansfield C. J. observing, "What has been called an asportavit, in this declaration, is a mode or qualification of the injury done to the land. The trespass is laid to have been committed on the land by digging, &c. and the asportavit as part of the same act; and on the trial of the issue, the freehold certainly might have come in question. This is clearly distinguishable from an asportavit of personal property, where the freehold cannot come in question, and which, therefore, is not within the act; thus, after trees are cut down, and thereby severed from the freehold, if a trespasser comes and carries them away, that case is not within the statute, because the freehold cannot come in question; here it might."

So where the plaintiff declares for a consequential injury, merely as matter of aggravation.

o Hill v. Reeves, C. B. E 3 G. 1. Bull. N. P. 329.

p Birch v. Daffey, C. B. Trin. T. 3 G.1. Bull. N. P. 330.

q Butler v. Cozens, 11 Mod. 198. 6 Vin. Abr. 357.

r Clegg v. Molyneux, Doug. 779.

1

In trespass for breaking and entering a dwelling house, and making a great noise there, and continuing there until the plaintiff and another person were compelled to give a sum of money; it was holden, that the plaintiff was entitled to no more costs than damages.

In trespass for throwing stones', &c. at the windows of plaintiff's house, and breaking the glass, &c. the damages being under 40s. and no certificate; it was holden, that the plaintiff was not entitled to any more costs than damages; because the defendant might have given liberum tenementum in evidence, and so the title to the house have come in question.

In cases like those above-mentioned, if it does not appear either by the certificate of the judge, or by the pleadings", (for that is considered as tantamount to the judge's certifi cate) that the freehold or title was chiefly in question, the plaintiff is entitled to no more costs than damages, if he recover less than 40s.

Before the stat. 4 Ann. c. 16. s. 8. (allowing the court on motion to direct a view) there could not be a view until after the cause had been brought to trial, when, if the judge thought proper, the cause was adjourned to enable the jurors to have a view; and this was entered upon the record: whence the court inferred that the title must have come in question, and a view having been granted, was considered as tantamount to a judge's certificate. But as since the statute of Aun, a view is granted of course upon the 'previous motion of either party, and may be granted where the title is not in question, the same effect cannot any longer be attached to it; and a plaintiff' recovering less than 40s. is no longer entitled to costs of increase, merely because a view has been had, although it was granted upon the application of the defendant'.

If it appear on the face of the declaration, that the freehold might have come in question, it is sufficient to bring the case within the statute.

To trespass at A., and throwing down, burning, and totally destroying the plaintiff's hedge, there then erected, &c. whereby, &c.; the defendant pleaded the general issue, aud justified as to the throwing down the hedge, because it was

s Appletou v. Smith, B. R. H. 2 G. 3.
Bull. N. P. 330 See also Blunt v.
Mither, Str. 645.

t Adlem v. Grinaway, 6 T. R. 281.
u Asser v. Finch, 2 Lev. 234. Martin
v. Vallance, 1 East, 350.

x Kempter v. Deacon, Ld. Raym. 76 Salk 665.

y Flint v. Hill, B. R. E. 1809. 11 East,

184.

z Stead v. Gamble, 7 East, 325.6 A

erected on a common over which he prescribed for right of common, whereon issue was taken, and found for the defendant, and a verdict for the plaintiff, with 20s. damages on the general issue; it was holden, that the facts stated in the special plea and found, could not be taken into consideration, to shew that the title to the freehold could not come in question; and as, on the declaration, the freehold might have come in question, and the judge did not certify, the plaintiff was entitled to no more costs than damages.

The cases to which the statute does not apply are, 1. Where the action is brought solely for an injury to a personal chattel', 2. Where the action is brought for a local trespass, and also for a substantive and independent injury to a personal chattel (whether in the same count with the local trespass, or a different count, is immaterial), and general damages are given; in which case, as the court will intend that part of the damages were given for the injury to the chattel, as to which there cannot be any certificate, the case is as much exempted from the operation of this statute, as if the plaintiff had declared merely for an injury to a personal chattel. It may not be improper to observe, that in a case of this kind, if the plaintiff fails in proving the injury to the chattel, and there is a verdict for the defendant on this part of the declaration, the action then becomes merely an action for a local trespass within the operation of the statute.

On writs of inquiry, in cases within this statute, the plaintiff shall have full costs, although the damages are under 40s.

Where the cause originally began in an inferior court, and is removed into K. B. or C. B. the plaintiff shall have his full costs, although the damages are under 40s. and there certificate.

is not any

It only remains to mention another class of cases, in which it has been holden, that wherever a special plea of justification is found against the defendant, the plaintiff is entitled to full costs.

To trespass quare clausum fregit, defendant pleaded not guilty, and a licence, on both of which pleas issue was joined,

and found for plaintiff, with one shilling damages; it was holden, that the plaintiff was entitled to full costs, it being a general rule, that wherever a special plea of justification is found against defendant, plaintiff is entitled to full costs.

The rule, as laid down in the foregoing case, was recognised in Comer v. Baker, 2 H. Bl. S41., and in Peddell v. Kiddle, 7 T. R. 659.

The principle on which these determinations are founded, is stated by Lord Kenyon, in the last mentioned case, to be this, that where the case is such that the judge who tries it cannot in any view of it grant a certificate within the act, it is considered to be a case out of the statute. It may be remarked, that the principle adverted to by Lord Kenyon is certainly a sound principle, but it is not quite so clear that the application of the principle to the cases in question was

correct.

By stat. 4 & 5 W. & M. c. 23. s. 10., after reciting that great mischiefs ensue by inferior tradesmen, apprentices, and other dissolute persons, neglecting their trades and employments, who follow hunting, fishing, and other game, to the ruin of themselves, and damage of their neighbours, it is enacted, that" if any such person shall presume to hunt, hawk, fish, or fowl, (unless in company with the master of such apprentice, duly qualified by law) such person shall be subject to the penalties of this act, and may be sued for his wilful trespass in such his coming on any person's land; and if found guilty thereof, the plaintiff shall not only recover his damages, but full costs.' It has been holden, that a clothier, who kept an alehouse, and was not qualified to kill game, was an inferior tradesman within the meaning of this statute, and liable to pay full costs, although he was hunting in company with a qualified person at the time when the trespass was committed. See further as to the construction of this statute, Buxton v. Mingay, 2 Wils. 70. where the court of C. B. were equally divided in opinion on the question, whether a surgeon and apothecary, not qualified, having committed a trespass in hunting with a qualified person, was "an inferior tradesman" within the meaning of the statute, Bathurst J. and Clive J. being of opinion that he was, conceiving that all' unqualified tradesmen were inferior tradesmen;" but Willes C. J. and Noel J. being of opinion that the defendant, merely as an apothecary and surgeon, was not to be considered as an inferior tradesman, or a dissolute person within the statute.

h Wickham v. Walker, C. B. M. 11 G. 2. Barnes, 125.