trespass by all, cannot wave that, and give evidence of another trespass committed by one defendant only. Declarations respecting the subject matter of a cause, by a person who at the time of making them had the same interest in such matter as the plaintiff, were holdent to be admissible in evidence against him, although the maker of them was alive, and might have been called as a witness. Where the declaration charges the commission of trespasses in a close of the plaintiff, which it describes by abuttals, the plaintiff in support of the declaration is not obliged to prove trespasses committed in every part of the close. And if the defendant pleads that the "close in which, &c." is part of certain ground once waste, but which was set out under an award for particular purposes, and that he (defendant) is entitled to use it for those purposes; and if it appears that the whole extent of ground mentioned in the plea was not set out under the award, but if part of it was so set out, and the place where the trespasses proved were committed was within that part, then the defendant has proved his justification; for as the plaintiff is not bound to carry his proof of trespasses to every part of the close mentioned in the declaration, so the defendant is not bound to support his justification as to all parts. The "close in which, &c." does not mean the whole close referred to in the declaration, but the place in which the trespass is proved to have been committed, and the defendant may so apply it". To support a plea (framed on stat. 2 & 3 W. 4. c. 71. s. 2, which see ante, p. 1135) of a right of way enjoyed for forty years, evidence may be given of user more than forty years back. Under a pleay denying that the defendant had used the way for forty years, as of right and without interruption, the plaintiff is at liberty to shew the character and description of the user and enjoyment of the way during any part of the time; as that it was used by stealth, or in the absence of the occupier of the close and without his knowledge, or that it was merely a precarious enjoyment by leave and license, or any other circumstances which negative that it is an user or enjoyment under a claim of right; the words of the 5th section, "not inconsistent with the simple fact of enjoyment," being referable to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised " right." Woolway v. Rowe, 1 Ad. & Ell. 114; 3 Nev. & M. 849. u Bassett v. Mitchell, 2 B. & Ad. 99. recognising Richards v. Peake, 2 B. & C. 918. as of x Lawson v. Langley, 4 Ad. & Ell. 890. y Beasley v. Clerk, 2 Bingh. N. C. 709; recognising Tickle v. Brown, 4 Ad. & Ell. 369. z For which see ante, p 433. VI. Damages: Costs. Damages. By stat. 3 & 4 W. 4. c. 42. s. 29, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of the seizure, in actions of trespass de bonis asportatis. 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 and 23 Car. 2. c. 9, that " in all actions of trespass, assault, and battery, 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 40s., shall not recover more costs of suit than the damages so found shall amount unto." Nothwithstanding the general words a "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 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 b, or affixed to the freehold, as breaking a lock affixed to plaintiff's gated, 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 z For the cases on this statute relating to assault and battery, see ante, p. 39; see also the other statutes relating to costs, 8 & 9 W. 3. c. 11. and 3 & 4 W. 4. c. 42. s. 32, ante, p. 41. a Salk. 208. Milbourne v. Reade, 3 b Hill v. Reeves, Bull. N. P. 329. 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 1s. damages; and for the defendants on the special pleas, and the judge had not certified. It was holden that the plaintiffs were 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 statnte, because the freehold cannot come in question; here it might." So where the plaintiff declares for a consequential injury, merely as matter of aggravation. 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. So in trespass for beating plaintiff, and turning him out of a room, whereby he was prevented from exercising the business of an attorney there, it was holden 5, that the plaintiff was not entitled to more costs than damages. Trespass for breaking a house, seizing and taking goods, and detaining them until plaintiff paid money, no more costs than damages if under 40s. per Willes, Ashhurst, and Buller, Js. on the authority of Reeves v. Butler, Gilb. Rep. 195. A detinuit, not an asportavit, B. P. B. 146. Dampier, MSS., L. I. L. Powell v. e Clegg v. Molyneux, Doug. 779. g Daubney, gent. one, &c. v. Cooper, 10 B. & C. 830, in which the authority of Anderson v. Buckton, 1 Str. 192. was denied. Ellet, B. R. Trin. 21 Geo. 3. In cases like those abovementioned, 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 certificate,) 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. In a case where a right of way was pleaded by metes and bounds, and there was no issue taken thereon; but the replication new assigned extra viam, and upon that there was a verdict for plaintiff under 40s.; the court held the plaintiff was not entitled to full costs. Cockerill v. Allanson, Hullock on Costs, 86. See also Gregory v. Ormerod, 4 Taunt. 98. S. P. But see Taylor v. Nicholls, 3 B. and A. 443, where to trespass quare clausum fregit, defendant pleaded not guilty and a justification of a right of way; the plaintiff in replication admitted the right of way and new assigned extra viam. The plaintiff having obtained a verdict on the new assignment, with one shilling damages, was holden to be entitled to full costs; the court recognising the authority of Asser v. Finch and Martin v. Vallance. See Booth v. Ibbotson, 1 Y. and J. (Ex.) 354. Where the defendant suffers judgment by default on the new assignment, and drives the plaintiff to a trial by the plea of not guilty, the plaintiff is entitled to the general costs of the cause. Vickers v. Gallimore, 5 Bingh. 196. and 2 M. and P. 359, recognising House v. The Commissioners of Thames Navigation, 3 Brod. and Bingh. 117. Longden v. Bourn, 1 B. and C. 278. Broadbent v. Shaw, 2 B. and Ad. 940. S. P. on the authority of the foregoing cases. The court will not order J. S. to pay costs who is not a party to the record, although it be sworn that the trespass was committed by his direction, and it was urged that the plaintiff might not, at the time when he commenced the action, have known that J. S. was the responsible trespasser. Berkeley v. Dimery, 10 B. and C. 113. n. Before the stat. of 4 Ann. c. 16. s. 8, (allowing the court on motion to direct a viewi,) 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 certificatek. But as, since the statute h Asser v. Finch, 2 Lev. 334. Martin k Kempter v. Deacon, Lord Raym. 76. v. Vallance, 1 East, 350. Salk. 665. i See R. G. H. T. 2 W. 4. 63. as to rule for a view. of Ann, 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, and justified as to the throwing down the hedge, because it was 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 P, 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. 1 Flint v. Hill, B. R. E. 1809. 11 East, 184. m Stead v. Gamble, 7 East, 325. n Ven v. Phillips, Salk. 208. Keen v. Whistler, 1 Str. 534. o Anderson v. Buckton, 1 Str. 192. Thompson v. Berry, 1 Str. 551. Smith v. Clarke, 2 Str. 1130. p Barnes v. Edgard, 3 Mod. 39. q Salk. 208. r Sheldon v. Ludgate, Bull. N. P. 329. |