dict with only 2d. damages. (a) And the same doctrine prevailed, where the plaintiff's close was entered, and his sheep driven (b); where his bull was chased (c); where his house was broken, and his provisions carried away. (d) So, if the damage be consequential, provided the plaintiff may have a distinct satisfaction for it, the same result will ensue. Trespass was brought for the entry of diseased cattle into the plaintiff's close, by which his cattle were infected. The damages were 20s., and full costs were adjudged to the plaintiff; for here was a distinct wrong, joined as matter of aggravation. (e) But one of the Judges (ƒ) thought that the recovery in this action would not be pleadable to a special action on the case for the special injury, which was denied by the rest. Yet, in another case, where the plaintiff declared for breaking his house and barn, locking the doors of the barn, and seizing and detaining his goods and chattels for a long space of time, and depriving him of the use of his barn, &c.; on a verdict with 2d. damages, it was finally holden that he should not have full costs. Lord Chief Baron Eyre was in the plaintiff's favour when the case was first considered; but Sir Jeffrey Gilbert, (a) Comb. 324. Hains v. Hughes. S. C. cited. (d) 2 Str. 1130. Smith v. Clarke. Ca. Pract. 99. S. C. 11 Mod. 303. S. C. S. P. (e) 1 Str. 192. Anderson v. Buckton, per Pratt C. J. Powys and F. Aland Justices. Fitzg. 42. Granvile v. Vincent. Grandey v. Wiltshire, semb. S. C. (f) Sir Robert Eyre. 1 Barnard. 117. 127. 134. What a sufficient asportation. succeeding him as Chief Baron, thought the taking of the goods too strongly connected with the breaking of the barn, and that the title might have been in question; for there was no distinct allegation that the property of the goods had been in dispute, and so the costs were disallowed. (a) But it was agreed, that if the asportation had been laid in another count, the plaintiff would have succeeded, and this has always been the rule. There was one count for breaking a close, and another for impounding cattle; the damages were under 40s., and the Court were of opinion, that the case was not within the statute, since the title could not come in question upon the destruction of a chattel. (b) The same rule was adopted by Lee C. J., where trespass was laid in one count for carrying away a hog, and in another respecting lands. (c) Questions have arisen as to what should be considered a sufficient removal of goods from the freehold; at first, as where roots had been dug up and removed to a place on the same ground, it was conceived sufficient to prove such an asportation only as would constitute a felony; and, consequently, that this removal had been ample to entitle the plaintiff to his costs. But even there Mr. Just. Ventris differed, saying, that the felonious intent was manifest by the taking of goods, not by the carrying them away. (d) In another case, where trespass was brought for breaking a close, and cutting and carrying (a) Bunb. 207. Reeves v. Butler. Gilb. Eq. Rep. 195. S. C. (b) 3 Mod. 39. Barnes v. Edgard. (c) Sayer on Costs, 39. Knightly v. Buxton. (d) 2 Ventr. 215. Anon. away corn, the defendant was found guilty of all except the carrying off the corn; and the Court, it seems, intimated an opinion, that if the defendant had been convicted of moving the corn, although not from off the premises, the plaintiff would have had costs. (a) However, this doctrine did not give entire satisfaction; for, when shortly afterwards an action was brought for pulling up and throwing down a hedge, and a verdict passed for the plaintiff with 5s. damages, the Court expressed an opinion, that asportation did not mean such a removal as this, but an entire carrying away. (b) So, where the case was for tearing and pulling up poles, the Court repudiated the case in Ventris, and said they should rely on Franklin v. Jolland as their authority for denying costs. (c) Where materials had been taken from a saw-pit, but had been brought back and restored by order of the defendant, and the plaintiff had paid 7s. 6d for restoring the saw-pit to its former condition, which sum was awarded him for damages by the jury, Eyre C. J. thought the plaintiff entitled to costs, as an asportavit had been proved; but, on a rule that the Master should review his taxation for the plaintiff, Mr. Justice Buller, who was sitting alone in banco, was of a different opinion, and thought that there should not be more costs than damages, there being no certificate. (d) It is very necessary that the asportavit should not be so connected with the trespass as to seem a part of it. (a) Skin. 666. Blackly v. Fry. (b) 1 Str. 634. Franklin v. Jolland cited. (c) Id. 633. Anon. Gilb. Eq. Rep. 198. S. C. (d) 1 Esp. 255. Richardson v. Tomlin. Within what time this certifi allowed. For where the plaintiff declared for digging turf, peat, sods, &c., and taking and carrying away the same, on a verdict with 1s. damages, the Court could not help considering the asportavit as matter of description, and part of the trespass; and that as the freehold might have come in question, a certificate was necessary to entitle the plaintiff to his costs. (a) It has been resolved, that if a defendant be acquitted of breaking a close, and be found guilty as to taking away goods, however small the damages, the plaintiff will have costs, for it occurs as a mere question relative to personal property (b); whereas, if the asportavit, whether alleged as a substantive fact in the same count with the trespass to real property, or in one separate, be found for the defendant, the case assuming the aspect of trespass quare clausum fregit, will be entirely within the statute of Charles, and no costs will be recoverable by the plaintiff. (c) Although the learned Judge, who has so ably enriched the profession with a treatise on Costs, expressed cate may be an opinion at the time of its publication that a certificate on this statute should be granted at the trial of the cause (d), he, nevertheless, at the summer assizes for Shrewsbury in the year 1823, before he left the assize town, certified as to the proof of a battery; and an objection being taken, that the Judge should have certified (a) Dougl. 780. Clegg v. Molyneux. (b) Freem. 394. Anon. (c) 2 Ventr. 180. 195. Ca. Pract. C. P. 118. Bunb. 208. in Reeves v. Butler. (d) Hullock on Costs, vol. i. p. 38. at the trial, the Court of King's Bench expounded the words, "the Judge at the trial of the cause," to mean, the Judge who tried the cause; observing, that the certificate could never be granted at the trial, but only when the verdict has passed. And they held this construction the most convenient, as the Judge would rather have time to consider of the matter, than decide on granting the certificate at the instant. (a) Lord C. J. Willes has declared, that a Judge is not bound or concluded by the verdict; for that if he were, there would be no room for a certificate (b); and Mr. Justice Buller, in his Law of Nisi Prius, tells us, that some Judges have held themselves bound by the verdict; but he gives it as his firm opinion, that the statute intended to leave the matter to their discretion under all the circumstances of the case (c), which is now clearly the prevailing opinion; and it should be added, that in matters of consequence, either the damages are beyond 40s., or the Judge, adverting to the magnitude of the case, will of course grant his certificate. It remains, that we mention the stat. 4 & 5 W. & M. c. 23. s. 10., as repealing partially the act of Charles regarding certificates in cases where inferior tradesmen, apprentices, and other dissolute persons, are found guilty of wilful trespasses by hunting upon the land of another person. It enacts, that if any such person as aforesaid shall presume to hunt, hawk, fish, or fowl, (unless in company with the master of such apprentice, duly qualified by law,) such person or persons shall be subject to the Whether a a Judge be bound to certify. 4&5 W & M. c. 23. respecting inferior tradesmen. (a) 2 B. & C. 621. Johnson v. Stanton. (c) Bull. N. P. 330. |