Of the Judy ment and Da mages. Ibid. Ibid. 593. Ibid. 194 where the plea of one of the defendants is such as shews that the plaintiff could have no cause of action against any of them, there if this plea be found against the plaintiff, it shall operate to the benefit of all the defendants, and the plaintiff cannot have judgment or damages against those who let judgment go by default; but where the plea merely operates in discharge of the party pleading it, there it shall not operate to the benefit of the other defendants, but not with ftanding fuch plea be found against the plaintiff, he shall have judgment and damages against the other defendants. If there be a demurrer to part and an issue upon other part, or, in an action against feveral defendants, if fome of them demur and others plead to iffue, the jury who try the iffue fhall affefs the damages for the whole, or against all the defendants. In this cafe, if the iffue be tried before the demurrer is argued, the damages are faid to be contingent, depending upon the event of the demurrer. But where the issue, as well as the demurrer, goes to the whole cause of action, the damages fhall be affeffed upon the iffue, and not upon the demurrer. Where there are feveral defendants who fever in pleading, the jury who try the firft iffue fhall affefs damages against all, with a ceffet executio; and the other defendants, if found guilty, fhall be contributory to those damages. In trespass against feveral defendants who join in pleading, if the jury on the trial find them all jointly guilty, they cannot affefs feveral damages. But they may find fome of them guilty and acquit others; in which cafe the damages can be affelfed against thofe only who are found guilty: or they may find some of the defendants guilty of the whole trefpafs, and others of part only; or fome of them guilty of part, or at one time, and the rest guilty of other part, or at another time; in either of which cafes, they may affefs feveral damages. Alfo, where in an action against several defendants the jury by mistake have affeffed feveral damages, the plaintiff may cure it, by entering a nolle profequi as to one of the defendants, and taking judgment against the others; or he may enter a remittitur as to the leffer damages; or, even withou without entering a remittitur, he may take judgment against all the defendants for the greater damages. Where the jury upon the trial of an iffue have omitted Ibid. to affefs the damages, the omiffion may in certain cases be fupplied by writ of enquiry. Where they give greater damages than the plaintiff has declared for, it may be cured by entering a remittitur of the furplus before judg ment. As to cofts, the ftat. 22 & 23 Car. 2. c. 9. enacts "That of the Cafts. " in all actions of trespass, wherein the Judge, at the trial "of the cause, shall not find and certify, under his hand, 66 upon the back of the record, that the freehold or title "of the land mentioned in the plaintiff's declaration was chiefly in question; the plaintiff, in cafe the jury fhall "find the damages to be under the value of forty fhillings, "hall not recover or obtain more cofts of fuit than the "damages fo found fhall amount unto." The conftruction of this ftatute, which now prevails, is Ibid. 648. that the ftatute is confined to actions of assault and battery, (which action is comprised in it) and actions for local trefpasses, wherein it is poffible for the Judge to certify that the freehold or title of the land was chiefly in question. In actions, therefore, for local trespasses, the statute applies, whenever an injury is done to the freehold, or to any thing growing upon or affixed to the freehold: and in a modern cafe it was carried ftill further. That was an action of Doug. 779trefpafs quare claufum fregit; the first count ftated, that the defendants broke and entered the clofe of the plaintiffs, and the grafs of the plaintiffs there then growing, with the feet in walking, trod down, fpoiled, and confumed, and dug up and got divers large quantities of turf, peat, fods, heath, ftones, foil, and earth of the plaintiffs, in and upon the place in which, &c. and took and carried away the fame, and converted and difpofed of the fame to their own use. Another count was upon a fimilar trespass in another close. The defendants pleaded the general issue to the whole declaration, and two fpecial pleas to the fecond count. On the trial, a verdict was found for the plaintiffs on the general iffue, with one thilling damages; and for the defendants on the special pleas; and the Judge had not certified. Per L13 Per Lord Mansfield-" The question on this record is, "whether the plaintiffs are entitled to any more cofts than damages under the ftat. 22 & 23 C. 2. c. 9.? There is a puzzle and perplexity in the cafes on this part of the "ftatute, and a jumble in the reports; and as the queftion "is a general one, we thought it proper to confult all the Judges; and they are all of opinion, that this cafe is "within the ftatute, and that the plaintiffs ought to have 66 no more costs than damages. You will observe, that "what has been called an afportavit 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 afportavit as part of the fame "act, and on the trial of the iffue, the freehold certainly 66 might have come in queftion. This is clearly diftin"guishable from an afportavit of perfonal property, where "the freehold cannot come in queftion, and which there"fore is not within the A&t. Thus after trees are cut down, and thereby fevered from the freehold, if a tref paffer comes and carries them away, that cafe is not "within the ftatute, because the freehold cannot come in queftion: here it might." ་་ Where an injury is done to a perfonal chattel, it is not within the ftatute; nor where an injury to a personal chattel is laid, in the fame declaration, with affault and battery, or a local trefpafs; confequently, in thefe cafes, though the damage be under forty fhillings, the plaintiff is intitled to full costs, with a certificate.-But then it must be a fubftantive and independent injury: for where it is laid or proved merely in aggravation of damages, as a mode or qualification of the affault and battery, or local trespass, or there is a verdict for the defendant upon that part of the declaration which charges him with an injury to a personal chattel; it is within the ftatute. The certificate required by this ftatute need not, it feems, be granted at the trial of the cause.-The award of an arbitrator is not tantamount to a Judge's certificate under 'this ftatute. The ftat. 4 & 5 W. & M. c. 23. s. 10. after reciting that great mifchiefs enfue by inferior tradefmen, apprentices, and and other diffolute perfons, neglecting their trades and em- may be fued or profecuted for his wilful trefpafs, in fuch "his coming on any perfon's land; and if found guilty "thereof, the plaintiff fhall not only recover his damages "thereby fuftained, but his full cofts of fuit; any former The words Ibid. 654. law to the contrary notwithstanding.' "inferior tradefmen" extend, it feems, to every tradesman not qualified to kill game: but this was doubted in a fubfequent cafe, wherein the Judges were divided in opinion upon the question, whether a furgeon and apothecary fhould be confidered as an inferior tradefmen. So, by the ftat. 8 & 9 W. 3. c. 11. s. 4. for the prevention of wilful and malicious trespaffes, it is enacted, "That "in all actions of trefpafs, to be commenced or profecuted "in any of his Majefty's courts of record at Westminster, "wherein at the trial of the caufe it fhall appear, and be "certified by the Judge under his hand, upon the back of the record, that the trefpafs, upon which any defendant. "fhall be found guilty, was wilful and malicious, the "plaintiff fhall recover not only his damages, but his full "cofts of fuit; any former law to the contrary notwith ftanding." The certificate, required by this statute, need Ibid. 655. not be granted at the trial of the caufe; and it is faid, that the ftatute extends to every trespass, that is not accidental as well as trifling; cafes are however to the contrary. Where the declaration confifts of feveral counts, the Ibid. plaintiff in the Court of K. B. is only entitled to the cofts of fuch as are found for him; and neither party is allowed the cofts of those which are found for the defendant. Where the plaintiff's declaration confifted of two counts, to one of which the defendant pleaded the general iffue, which was found for the plaintiff, and to the other a juftification, to which the plaintiff demurred, and judgment LI 4 was Bull. N. P. 74. 2 Ld. Raym. 1402. : Str. 635. 2 Ld. Raym. *399. Bull. N. P. 74. 6 Mod. 312. was thereupon given for the defendant; the Court agreed that the defendant could have no cofts upon the demurrer. -But if there be two distinct causes of action, in two feparate counts, and as to one the defendant fuffers judgment to go by default, and as to the other takes iffue, and obtains a verdict, he is entitled to judgment for his cofts on the latter count, notwithstanding the plaintiff is entitled to judgment and costs on the first count. Of Trefpafs on the Cafe. For injuries to his poffeffion, an action on the cafe will alfo lie in moft cafes where trefpafs would be maintainable, and in others where it would not. An action on the cafe lies for confequential damages where the act itself is not an injury. It is now indeed a fettled diftinction, that where the immediate aft itself occafions a prejudice, or is an injury to the plaintiff's perfon, house, land, &c. trespass vi et armis will lie; but where the act itself is not an injury, but a confequence from that act is prejudicial to the plaintiff's perfon, houfe, land, &c. trespass vi et armis will not lie, but the proper remedy is an action on the cafe. The difference, therefore, between trespass and cafe is, that in trespass the plaintiff complains of an immediate wrong, and in cafe, of a wrong that is the confequence of another act. Fixing a spout, therefore, fo as to discharge water upon the land of another, is only confequentially injurious, and the party who fuftains the damage muft bring cafe in order to get a compenfation. So, if a man who ought to enclose against my land, do not enclose, whereby the cattle of his tenants enter into my land, and do damage to me, I may have this remedy. In an action on the cafe by a leffee for years against the owner of the adjoining house, for not repairing a party. wall, by which the plaintiff's house was damaged, it is not neceffary to ftate that he was bound by prefcription to repair the wall; it is fufficient to declare that he was poffeffed of a messuage for a certain number of years, and that the defendant ought to repair the wall. Note. 1 |