It is impossible to suggest the possession of a certain term that is not the subject-matter of a seizure by the sheriff under a fieri facias (a) : and as in a deed of assignment the sheriff need not specify the particular interest which the party had, so, if he can convey a title in general words, it is equally sufficient to justify in the same general words in an action of trespass (b).

Matter of excuse or justification must be pleaded specially; as in trespass to real property, a licence; or that the beasts came through the plaintiff's hedge, which he ought to have repaired; or by reason of a rent-charge, common or the like (c).

A justification of trespass must, it is said, answer the whole trespass as laid in the declaration (d).

Thus, in trespass for breaking and entering plaintiff's house and expelling him, the plea justified the breaking and entering, shewing a good cause for it, and it was held to be a full answer to the count; for the breaking and entering are the gist of the action, and the expulsion is only matter of aggravation (b). If the plaintiff had wished to take advantage of the expulsion, he should have shewn the special matter in a new assignment; for according to the six carpenters' case, he should shew in reply that such makes the party a trespasser ab

initio.

Therefore, where trespass was for going over the plaintiff's close with horses, cows, and sheep, and the defendant justified that he had a way for horses, cows, and sheep, and said, that such a day he went over with horses; upon demurrer it was adjudged ill, for it was a justification for horses only (d).

In trespass, the value of the damages must be stated and proved (e). Judgment recovered against another for the same injury is a good plea in bar to this action (ƒ).

Of the judgment and damages. In actions of tort, as trespass, &c. where the wrong is joint and several, the distinction seems to be this, that 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, that it shall not operate to the benefit of the other defendants, but notwithstanding such plea be found against the plaintiff, he shall have judgment and damages against the other defendants (g).

(a) Taunton v. Costar. 7 T. R. 431. (b) Taylor v. Cole. 3 T. R. 292–298. (c) Tidd's Pract. 597.

(d) Roberts v. Morgan. 11 Mod. 219.

N N

(e) Dove v. Smith. 6 Mod. 153.
(f) Morton's Case, Cro. Eliz. 30.
(g) 2 Tidd's Pract. 805.

If there be a demurrer to part and an issue upon the other part, or, in an action against several defendants, if some of them demur and others plead to issue, the jury who try the issue shall assess the damages for the whole, or against all the defendants. In this case, if the issue be tried before the demurrer is argued, the damages are said to be contingent, depending upon the events of the demurrer. But where the issue, as well as the demurrer, goes to the whole cause of action, the damages shall be assessed upon the issue, and not upon the demurrer (a).

Where there are several defendants who sever in pleading, the jury who try the first issue shall assess damages against all, with a cesset executio; and the other defendants, if found guilty, shall be contributory to those damages. In trespass against several defendants who join in pleading, if the jury on the trial find them all jointly guilty, they cannot assess several damages. But they may find some of them guilty and acquit others, in which case the damages can be assessed against those only who are found guilty or they may find some of the defendants guilty of the whole trespass, and others of part only: or some of them guilty of part, or at one time, and the rest guilty of the other part, or at another time; in either of which cases, they may assess several damages (a).

Also, where in an action against several defendants the jury by mistake have assessed several damages, the plaintiff may cure it, by entering a nolle prosequi as to one of the defendants and taking judgment against the others; or he may enter a remittitur as to the lesser damages; or, even without entering a remittitur, he may take judgment against all the defendants for the greater damages (a).

Where the jury upon the trial of an issue have omitted to assess the damages, the omission may in certain cases be supplied by writ of inquiry. Where they give greater damages than the plaintiff has declared for, it may be cured by entering a remittitur of the surplus before judgment (a).

Of the Costs. As to costs, the stat. 22. 23 Car. 2. c. 9. enacts, That in all actions of trespass, wherein the Judge, at the trial of the causes, shall not find and certify, under his hand, 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 case the jury shall find the damages to be under the value of forty shillings, shall not recover or obtain more costs of suit than the damages so found shall amount unto.

The construction (b) of this statute, which now prevails, is that the statute is confined to actions of assault and battery (which action is comprised in it) and actions for local trespasses, wherein it is

possible 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 case it was carried still further.-That was an action of trespass quare clausum fregit; the first count stated, that the defendants broke and entered the close of the plaintiffs, and the grass of the plaintiffs there then growing, with 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. Another count was 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. 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. Per Lord Mansfield." The question on this record is, whether the plaintiffs are entitled to any more costs than damages under the stat. 22 & 23 C. 2. c. 9.? There is a puzzle and perplexity in the cases on this part of the statute, and a jumble in the reports; and as the question is a general one, we thought it proper to consult all the Judges; and they are all of opinion, that this case is within the statute, and that the plaintiffs ought to have no more costs than damages. You will observe, that 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 come and carry them away, that case is not within the statute, because the freehold cannot come in question; here it might (a).

Where an injury is done to a personal chattel, it is not within the statute; nor where an injury to a personal chattel is laid, in the same declaration, with assault and battery, or a local trespass; consequently, in these cases, though the damage be under forty shillings, the plaintiff is entitled to full costs, without a certificate.But then it must be a substantive and independent injury: for where it is laid or proved merely in aggravation of damages, as a mode or qualification of the assault and battery, or local trespass, or there is a verdict for

(a) Clegg v. Molyneux. Doug. 780.

the defendant upon that part of the declaration which charges him with an injury to a personal chattel, it is within the statute (a).

The certificate required by this statute need not, it seems, be granted at the trial of the cause.-The award of an arbitrator is not tantamount to a Judge's certificate under this statute.

It has been determined in several cases, that if the defendant, in trespass quare clausum fregit, plead a licence or other justification, which does not make title to the land, and it is found against him, the plaintiff is entitled to full costs, though he do not recover 405. damages; the principle on which these determinations have proceeded is, that where the case is such, that the judge who tries the cause cannot in any view of it grant a certificate, it is considered to be a case out of the statute. So on a plea of not guilty to a new assignment of extra viam, the plaintiff, obtaining a verdict for less than 40s. damages, is entitled to full costs, without a Judge's certificate: unless the way pleaded be set forth by metes and bounds; and when the plaintiff is entitled to costs upon the new assignment, he is entitled to the costs of all the previous pleadings (b).

The 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 games, to the ruin of themselves and damage of their neighbours, enacts, "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 shall or may be sued or prosecuted 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 thereby sustained, but his full costs of suit: any former law to the contrary notwithstanding." The words "inferior tradesman” extend, it seems, to every tradesman, not qualified to kill game: but this was doubted in a subsequent case, wherein the Judges were divided in opinion upon the question, whether a surgeon and apothecary should be considered as an inferior tradesman (c).

So, by the stat. 8 & 9 W. 3. c. 1 1. s. 4. for the prevention of wilful and malicious trespasses, it is enacted, "That in all actions of trespass, to be commenced or prosecuted in any of his Majesty's courts of record at Westminster, wherein at the trial of the cause it shall appear, and be certified by the Judge under his hand upon the back of the record, that the trespass, upon which any defendant shall be found guilty, was wilful and malicious, the plaintiff shall recover not only his damages, but his full costs of suit; any former law to the

(a) Tidd's Pract. 882.
(6) Ibid. 884.

(c) Ibid. 886.

contrary notwithstanding." The certificate, required by this statute, need not be granted at the trial of the cause; and if it appear on the trial that the trespass, however trifling, was committed after notice, and the jury give less than 40s. damages, the Judge is bound to certify that the trespass was wilful and malicious, in order to entitle the plaintiff to his full costs (a).

In an action of trespass, brought by a pauper against the overseers of the poor, for entering his house and taking away his bed, it was proved that on the defendants' entering the house, the plaintiff desired them to go away, notwithstanding which they persevered in accomplishing their purpose. Heath, 7. ruled this to be a wilful trespass; and though he reprobated the action as an improper one, under the circumstances in evidence, yet, he said, he had no discretion, but was bound to certify that the trespass was wilful (b).

Where the declaration consists of several counts, the plaintiff in the Court of K. B. is only entitled to the costs of such as are found for him; and neither party is allowed the costs of those which are found for the defendant. Where the plaintiff's declaration consisted of two counts, to one of which the defendant pleaded the general issue, which was found for the plaintiff, and to the other a justification, to which the plaintiff demurred, and judgment was thereupon given for the defendant; the Court agreed that the defendant could have no costs upon the demurrer (c).—But if there be two distinct causes of action, in two separate counts, and as to one the defendant suffers judgment to go by default, and as to the other takes issue, and obtains a verdict, he is entitled to judgment for his costs on the latter count notwithstanding the plaintiff is entitled to judgment and costs on the first count. So where the declaration in trespass consisted of one count enly, to which there were several pleas of justification on which issues were taken, and a new assignment on which judgment passed by default, and a venire was awarded, as well to assess the damages on the judgment by default, as to try the issues; all the issues being found for the defendant, it was holden that he was entitled to the costs of them (d).

Of Trespass on the Case.

For injuries to his possession, an action on the case will also lie in most cases where trespass would be maintainable; and in others where it would not.

An action on the case lies for consequential damages where the act itself is not an injury. It is now indeed a settled distinction, that

(a) Tidd's Pract. 887.

(b) Oxf. Sum. Ass. 1800. T.'s MSS.

(c) Tidd's Pract. 888.

(d) Ibid. 889.