"Lord ELLENBOROUGH, C. J. Can we look to the special pleads which are found for the defendant? Does it not now stand as if the general issue had been pleaded and nothing else?" LAWRENCE, J. "The special pleadings do not apply to the thing for which the plaintiff has a ver-. dict. The defendant has pleaded as to all except the burning, a special plea which is found for him; then is it not an action for burning a hedge? * In Milbourne v. Reade, which was trespass for assault and battery of the plaintiff, at the parish of A. and also for obstructing him in getting coals, and for spoiling his cloaths, and breaking and pulling down a standard and roller of the plaintiff's, and taking and carrying away other goods, and a plea of not guilty, and the defendant was found guilty of all except taking and carrying away the goods, there it was held that the plaintiff was entitled to full costs, because the title could not come in question, and the judge could not have certified. And he cited Mason v. Casar, and Cooper v. Marshall‡ in order to shew that a commoner might abate a hedge as a nuisance to his common, and that it did not bring the title in question, for according to the former case, he did not thereby meddle with the soil, but only pulled down the erection. So here it is confessed that it stands on a common, which is not the soil of the defendant, he can only justify pulling it down but not the burning it, which stands as before on the general issue." Lord ELLENBOROUGH, C. J. declaration, there standing and "It is stated in the being, and the name 1806. STED tersus GAMBLE. * Barnes, 134. † 2 Md. 65. #1 Burr. 255. 1806. STEAD versus GAMBLE. of the close is inserted with a videlicet, and it is as Cur. adv. vult. And now the judgment of the court was delivered to the following effect, by Lord ELLEN BOROUGH, C. J. After stating the case. "By the stat. 22 and 23 Car. II. c. 9, s. 13, in all actions of trespass, assault, and battery, and other personal actions, unless the judge certifies that the assault and battery was sufficiently proved, or that the freehold or title of the land came chiefly in question, the plaintiff is entitled to no more costs than damages. In this case the declaration states a trespass in a certain close for destroying and burning 40 perches of the hedge therein standing and being.' Now the construction of this statute has always been, that it relates only to trespass, and assault and battery therein. named; and that the action of trespass mentioned, relates only to trespasses where the freehold comes in question, and wherein the judge can certify that the freehold came in question. And that species of action is trespass quare clausum fregit, and the question will be whether this is that species of ac tion in which the freehold could come in question and the judge could certify. Here is besides, a special plea that the defendant had a right of common, and a great deal of argument was used on that, to qualify the language of the count, and to shew that the freehold could not have been principally in question; but as that plea is found against the plaintiff, we cannot take that into our consideration. And upon conidering the authorities, we are of opinion that this is a species of action in which a certificate of the judge is necessary to entitle the parties to costs; in as 1 much as it appears to be a case in which the freehold could come in question. In Butler v. Cozens,* it was moved to have full costs in trespass inter alia for breaking his lock upon his gate; but POWELL, J. said this seems to be laid as a trespass to try the title, and where the freehold comes in question, there it is held full costs shall be; but where it does not, there no more costs than damages, and it was adjourned to see if the judge would certify; and in the note in the margin of Viner's Abridgment, it is said that it was held within the statute, for the locks were fixedto the posts and the posts to the freehold. And in Barnes's Notes, 121, Tomlinson v. White and Pomeroy, which was an action for breaking and entering the plaintiff's house and breaking the cellar-door, the jury, upon the trial, found for the plaintiff as to the breaking of the cellar-door, damages 6d. and the residue for the defendants. It was held that unless it could be contended that the cellar-door was not affixed to the freehold, the plaintiff ought not to have costs without a certificate. In Comberbach, 420,† it is reported that in trespass for pulling up and throwing down a hedge, whereby cattle of strangers unknown entered and ate the grass, the court would grant no more costs than damages, there being no asportation; though it was objected, that he could not pull it up and throw it down, without removing it. The only trespass there stated is pulling down the hedge, here it is destroying the hedges there erected, standing, and being. So in Comberbach, 324, Haius v. Hughes, which was tres * 11 Mod. 198, case 254, and also in 6 Viner's Abridgment, 351. +N. B. This is inserted under the case of The King v. Slatford, but evidently does not belong to that case. The notes of Comberbach are very ill arranged. They were posthumous publication. 1806. STEAD versus GAMBLE. 1806. STEAD versus GAMBLE. Evidence. Entries in books by persons deccased. RoF dem. pass for entering his close and cutting his cable, it appears from the language of HOLT, C. J. that it was not within the statute 22 and 23 C. II. c. 9, 'but ́ it were otherwise,' he adds, if the action were for breaking his close and cutting his rails, for they are affixed to the freehold. Here the hedge there standing and being' is a hedge affixed to the freehold, and therefore, inasmuch as the freehold might have come in question, and there is no certificate, nor no certain proof from the pleadings to which we can refer that it could not come chiefly in question, and there are less than 40s. damages, there must be no more costs than damages." RULE DISCHARGED. ROE on the Demise of CHARLES PRIDEAUX BRUNE, Tenant for life with leasing power, reserving the ancient THIS was an ejectment for lands in the parish of Padstow, in the county of Cornwall. The plainBAGS. tiff claimed as tenant in tail under a settlement on ong versus ; 1806. RoE dem. versus Edmund Prideaux, the elder, for life, remainder to Edmund Prideaux, the younger, for life, remainder to Humphrey Prideaux,eldest son of E. Prideaux, the younger, for life, remainder to his first and other sons in tail RAWLINGS, male, with a power to each tenant for life of granting leases when in possession for certain terms, and so as the ancient yearly rent, or a proportionable part thereof should be reserved. All the tenants for life were successively in possession, and the lessor of the plaintiff was the eldest son of Humphrey Prideaux, which Humphrey Prideaur being the last tenant for life, granted a lease (for a term not yet expired, determinable on three lives still in being) to the defendant, at a yearly rent of 14s. and a heriot, or a fine of 31. on each life. The question was, whether the ancient rent was reserved according to the limitation; and the attorney for the lessor of the plaintiff being called as a witness, produced a letter, containing an account of what were called conventionary rents of the manor of Padstow, due yearly to Edmund Prideaur, Esq. The letter was addressed to the Hon. Edmund Prideaux, Esq. within the close at Norwich: "ION. SIR, "You have here an account of all the yearly rents which likewise an account of all the conventionary rents set at lease Then followed some other statements of household |
