in evidence a modus, or customary payment, and thereby defeat the plaintiff's action. The rankness of a modus is a question of fact, and not of law, and can be determined by a jury only". If two farmers of tithe sue, and the defendant pleads nil debet, and upon trial proves an agreement with one of them only, this shall bind his companion". Verdict. If the verdict be given for the plaintiff, it is incumbent on the jury to find how much of the debt demanded by the declaration is due to the plaintiff, which is to be done by trebling the value of the tithe subtracted. The plaintiff shall recover according to the verdict"; hence, where, in the statement of the treble value of the tithe, there was error in the calculation, and the plaintiff demanded less than he was entitled to; on motion in arrest of judgment after verdict, an exception was taken, on the ground that the plaintiff, having demanded less than was due, ought to have acknowledged satisfaction for the residue; but the court overruled the objection, observing that the demand in this case was not for any sum certain, as in an action grounded on a specialty, but only for so much as should be given by the jury, the plaintiff being entitled to recover, not according to his demand, but according to the verdict. It was found by a special verdict, that the abbot of A. was seised in fee of certain land, and that he and his predecessors held the land discharged of tithe, and that he had granted the land to All Souls College; it was holden, that the prescription was personal to the abbot, and did not run with the land, and that it could not be intended to be a discharge by a real composition, it not being so pleaded, nor found by the jury to be so. In an action on this statute against several defendants, upon nil debent pleaded, the jury found for the plaintiff against one defendant only, and as to the others nil debent; m Bedford v. Sambell, M. 16 G. 3. + Scacc. 3 Gwm. 1058. Twells v. Welby, H. 20 G. 3. Scacc. 3 Gwm. 1192. n Moor, 915. o Degge, 6th ed, 404. p Pemberton v. Shelton, Cro. Jac, 498. q Bolls v. Atkinson, 1 Lev. 185. upon motion in arrest of judgment, because it was an action of debt founded on a contract which is entire, the court held, that the action was founded on a tort, and not on a contract; not guilty would have been a good plea, and therefore a verdict may be given against one of the defendants, and for the others, as in actions upon torts. An action on this statute, being brought by the party grieved for the purpose of trying a right, and being more beneficial to the defendant, than to be carried into the spiritual court, is not considered as a penal action brought by a common informer. Consequently, a new trial will be granted, where it is clear that the verdict has been given for the defendant against the weight of evidence'; although, in penal actions, the courts will not permit a verdict to be disturbed on this ground. Costs. As to the costs, see the remarks on the second section, ante, p. 1134. and post. under tit. Judgment. Judgment. This being an action for the recovery of the treble value of the tithes, in a case where the single value was not recoverable at common law, did not fall within the stat. of Gloucester (15); the plaintiff, therefore, was not entitled to recover costs under that statute, consequently the judgment formerly was only for the debt" found by the jury; and if the jury upon the trial had given costs and damages, it was incumbent on the plaintiff to enter a remittitur, and take judgment for the debt only; but an alteration has been made in this respect by stat. 8 & 9 W. 3. c. 11. which see ante, p. 1134. s Holloway v. Hewett, Trin. 13 G.3.10 MSS. Serjt. Hill, p. 339. t Brook q. t. v. Middleton, 10 East, 268. u Co. Ent. 162. a. 2d. ed. x See Dagg v. Penkevon, Cro. Jac. 70 where this mode was adopted. (15) "Where a statute gives damages by creation, there the plaintiff shall recover no costs; the reason is, because damages being given out of course, and where the common law does not give them, and the statute being therefore introductive of a new law, the plaintiff shall recover what the statute appoints him to recover, and no more." Arg. Hardr. 152. If judgment be for the plaintiff by nil dicit, non sum informatus, or upon demurrer', the judgment may be entered for the whole debt demanded by the declaration, So if the issue be on a collateral matter", as on the custom of tithing or discharge by statute, which is found against the defendant, and the defendant hath not taken the value by protestation, he shall pay the value expressed by the plaintiff in his declaration; for by the collateral matter pleaded in bar, the declaration is confessed in the whole. If the action be brought against two or more defendants", and a verdict is given against one or two only of the defendants, plaintiff is entitled to judgment against those, although there be a verdict for the other defendants. It is expressly provided, that the statute of jeofails, 16 and 17 Car. 2. c. 8., shall extend to this action. y Degge, 404. z Costerdam's case, cited in Yelv. 127. a Bowles v. Broadhead, Aleyn, 88. b Styles, 317, 319. See also ante, un der Verdict. CHAP. XXXVIII. TRESPASS. 1. In what Cases an Action of Trespass may be maintained. II. Where Trespass cannot be maintained. III. Of the Declaration. IV. Of the Pleadings: V. 1. Of the General Issue, and what may be given in Evidence under it. 2. Accord and Satisfaction. 3. The Common Bar, or Liberum Tenementum. 5. Licence. 6. Process. 7. Right of Way. 8. Tender of Amends. Costs. I. In what Cases an Action of Trespass may be main tained. THE land of every owner or occupier is enclosed and set apart from that of his neighbour, either by a visible and tangible fence, as one field is separated from another by a hedge, wall, &c. or by an ideal invisible boundary, existing only in the contemplation of law, as when the land of one man adjoins to that of another in the same open or common field. Hence every unwarrantable entry upon the land of another is termed a trespass by breaking his close. The form of action which the law has prescribed for this injury is an action of trespass vi et armis quare clausum fre git, in which the plaintiff may recover a compensation in damages for the injury sustained. Although the words of the writ are quare clausum fregit, yet it has been adjudged, in many instances where the plaintiff had not an interest in the soil, but an interest in the profits only, that trespass may be maintained, and this form pursued. Hence it was holden, that the grantee or patentee of the king de herbagio forestæ, might maintain trespass against any person who consumed or destroyed the grass, and that the writ should be quare clausum fregit. So where plaintiff is entitled to the vesture of land", that is, corn, grass, underwood, and the like. So where plaintiff had an exclusive (1) right of cutting turves in a moss, though the manor in which the moss was situate belonged to another. So if it is agreed between J. S. and the owner of the soil, that J. S. shall plough and sow the ground, and that in consideration thereof, J. S. shall give the owner of the soil half the crop, J. S. may maintain trespass for treading down the corn (2). So if a meadow be divided annually among certain persons by lot, then after the several portion of each person is allotted, each is capable of maintaining an action of trespass quare clausum fregit, for each has an exclusive interest for the time. Where trees are excepted in a lease, the land on which a Dyer, 285. b. pl. 40. bi Inst. 4. b. e Moor, 355. pl. 483. d Wilson v. Mackreth, 3 Burr. 1824. e Welch v. Hall, per Powell J. at Wells, (1) To maintain trespass, it is essential that the plaintiff should have exclusive possession at the time of the injury committed. Hence trespass will not lie for entering into a pew or seat in a church, because the plaintiff has not the exclusive possession, the possession of the church being in the parson." Per Buller J. 1 T. R. 430. The proper form of action for this injury is an action of trespass on the case; to support which, the plaintiff must prove a right, either by a faculty or by prescription, which supposes a faculty having been formerly granted. (2) In such case the owner is not jointly concerned in the growing corn, but is to have half after it is reaped, by way of rent, which may be of other things than money: although, in 1 Inst. 142, it is said, it cannot be of the profits themselves; but that, as it seems, must be understood of the natural profits. Bull. N. P. |