length and breadth of the new road must have been set out in the order; otherwise the order would have been bad, and advantage might have been taken of the defect in a collateral proceeding. And further, as by the same section of that statute the J. P. had only jurisdiction conferred on them in a given case, viz. to divert an old road, so as to make it nearer or more commodious to the public, that is, by making a new road (23); it was necessary that it should appear, that a new highway had been made in lieu of theold highway; merely widening an old highway, by the addition of detached pieces of land adjoining to one side of it (the termini a quo and ad quem, and the direction of it, remaining the same as before,) was not considered as diverting an oid highway, or making a new highway within the meaning of that statute, and in such case, although the order of the J. P. was regular on the face of it, stating, that a new highway, had been made in lieu of the old one, and although such order had been confirmed on appeal by the quarter sessions, yet it was competent to the defendant to prove that a new highway was not in fact made; for the J. P. cannot give to themselves a jurisdiction in a particular case, by finding that as a fact which is not really the fact. 8. Tender of Amends. At the common law, if a person brought an action of trespass for taking away his beasts, or other goods, tender of sufficient amends before action brought was not a bar; because the party making the tender was not the owner of the goods, as in the case of a distress (24), but a trespasser to q Welch v. Nash, 8 East, 394 See also De Ponthieu v. Pennyfeather, 5 r 2 Inst. 107. (23) The power to shut up roads is given only where there is a new road to be set out. Page v. Howard, M. 23 G. 3. B. R. Cald. 223. (24) With respect to distresses, either for rent arrear or damage feasant, the law is*, that if a tender is made before the taking the distress, the taking is wrongful; if after the taking, and before impounding, the detainer is wrongful. But a tender, after impounding, comes too late. Hence, in pleading a tender of amends to an avowry for damage feasant, it ought to appear on the face of the plea, that the tender was before impounding. The clause in stat. 21 Jac. 1. c. 16. s. 5. bath not made any alteration in this respect, for that clause is confined to actions of trespass †. whom the law did not shew any favour. But now, by stat. 21 Jac. 1. c. 16. s. 5. "In all actions of trespass quare clausum fregit, wherein the defendant shall disclaim in his plea, to make any title or claim to the land, and the trespass be by negligence or involuntary, defendant may plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender of sufficient amends before action brought." To this plea the plaintiff may reply a latitat sued out, with an intention to declare in trespass before the tender. V. Costs. THE statute of Gloucester having given costs in all cases where damages were recoverable, it followed as a necessary consequence, that wherever the smallest damages were recovered, the plaintiff obtained his full costs. This was productive of so much inconvenience, by encouraging vexatious suits, that the interposition of the legislature was deemed necessary, in order to confine the operation of the statute of Gloucester. For this purpose it was enacted by stat. 22 & 23 Car. 2. c. 9., that "in all actions of trespass, assault and battery (25), and other personal actions, wherein the judge, at the trial of the cause, shall not find and certify under his hand, upon the back of the record, that an assault and battery was proved, or 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 more costs of suit than the damages so found shall amount unto." Notwithstanding the general words "other personal actions," this statute has been uniformly construed to be confined to the two species of actions therein specially named, viz. trespass, and assault and battery; and that the action of trespass is confined to trespass quare clausum fregit, wherea the freehold or title to the land may come in question. A Watts v. Baker, Cro. Car. 264. t Salk. 208. Milburne v. Reade, ? Wils. 323. per Willes, C. J. (25) For the cases on this statute relating to assault and battery see ante, p. 40. VOL. J. It may be laid down as a general rule, that all actions quare clausum fregit, wherein the plaintiff merely declares for an injury to the freehold, or to something growing upon", or affixed to the freehold, as breaking a lock affixed to plaintiff's gate', are within the statute. And this rule holds, although the declaration charges the defendant with taking and carrying away a portion of the freehold, provided such taking and carrying away be merely a mode or qualification of the injury done to the land. In an action of trespass quare clausum fregit, it was stated in the first count, that the defendants broke and entered the close of the plaintiffs; and the grass of the plaintiffs, there then growing, with their 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. There was another count, 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; and 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. It was holden, that the plaintiff's were not entitled to any more costs than damages, Lord Mansfield, C. J. observing, "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 comes and carries them away, that case is not within the statute, because the freehold cannot come in question; here it might.' So where the plaintiff declares for a consequential injury, merely as matter of aggravation. In trespass for breaking and entering a dwelling house, u Hill v. Reeves, C. B. E. 3 G. 1. Bull. N. P. 329. Birch v. Daffey, C. B. Trin. T.3 G.1. Butler v. Cozens, 11 Mod. 198.6 Vin. z Clegg v. Molyneux, Doug. 779. and making a great noise there, and continuing there until the plaintiff and another person were compelled to give a sum of money; it was holden, that the plaintiff was entitled to no more costs than damages. In trespass for throwing stones, &c. at the windows of plaintiff's house, and breaking the glass, &c. the damages being under 40s. and no certificate; it was holden, that the plaintiff was not entitled to any more costs than damages; because the defendant might have given liberum tenementum in evidence, and so the title to the house have come in question. In cases like those above-mentioned, if it does not appear either by the certificate of the judge, or by the pleadings, (for that is considered as tantamount to the judge's certificate) that the freehold or title was chiefly in question, the plaintiff is entitled to no more costs than damages, if he recover less than 40s. In a case where a right of way was pleaded by metes and bounds, and there was no issue taken thereon; but the replication new assigned extra viam, and upon that there was a verdict for plaintiff under 40s.; the court held the plaintiff was not entitled to full costs. Cockerill v. Allanson, Hullock on costs, 86. See also Gregory v. Ormerod, 4 Taunt. 98. S. P. Before the stat. 4 Ann. c. 16. s. 8. (allowing the court on motion to direct a view) there could not be a view until after the cause had been brought to trial, when, if the judge thought proper, the cause was adjourned to enable the jurors to have a view; and this was entered upon the record: whence the court inferred that the title must have come in question, and a view having been granted, was considered as tantamount to a judge's certificate. But as since the statute of Ann, a view is granted of course upon the previous motion of either party, and may be granted where the title is not in question, the same effect cannot any longer be attached to it; and a plaintiff recovering less than 40s. is no longer entitled to costs of increase, merely because a view has been had, although it was granted upon the application of the defendant. If it appear on the face of the declaration, that the freehold might have come in question, it is sufficient to bring the case within the statute. b Adlem v. Grinaway, 6 T. R. 281. Asser v. Finch, 2 Lev. 234. Martin Fallance, 1 East, 350. d Kempter v. Deacon, Ld. Raym. 76. Salk. 665. e Flint v. Hill, B. R. E. 1899, 11 East. 184. To trespass at A., and throwing down, burning, and totally destroying the plaintiff's hedge, there then erected, &c. whereby, &c.; the defendant pleaded the general issue, and justified as to the throwing down the hedge, because it was erected on a common over which he prescribed for right of common, whereon issue was taken, and found for the defendant, and a verdict for the plaintiff, with 20s. damages on the general issue; it was holden, that the facts stated in the special plea and found, could not be taken into consideration, to shew that the title to the freehold could not come in question; and as, on the declaration, the freehold might have come in question, and the judge did not certify, the plaintiff was entitled to no more costs than damages. The cases to which the statute does not apply are, 1. Where the action is brought solely for an injury to a personal chattel8, 2. Where the action is brought for a local trespass, and also for a substantive and independent injury to a personal chattel (whether in the same count with the local trespass, or a different count', is immaterial), and general damages are given; in which case, as the court will intend that part of the damages were given for the injury to the chattel, as to which there cannot be any certificate, the case is as much exempted from the operation of this statute, as if the plaintiff had declared merely for an injury to a personal chattel. It may not be improper to observe, that in a case of this kind, if the plaintiff fails in proving the injury to the chattel, and there is a verdict for the defendant on this part of the declaration, the action then becomes merely an action for a local trespass within the operation of the statute. On writs of inquiry, in cases within this statute', the plaintiff shall have full costs, although the damages are under 40s. Where the cause originally began in an inferior court, and is removed into K. B. or C. B. the plaintiff shall have his full costs, although the damages are under 40s. and there is not any certificate. It only remains to mention another class of cases, in which it has been holden, that wherever a special plea of justification is found against the defendant, the plaintiff is entitled to full costs. f Stead v. Gamble, 7 East, 325. g Ven Phillips, Salk. 208. Keen v. h Anderson v. Buckton, 1 Str. 192. k Salk. 208. 1 Sheldon v. Ludgate, C. B. T. 9 G. 14 Bull. N. P. 329 m Roop v. Scritch, 4 Mod. 378. Archbishop of Canterbury v. Fulles, Ld. Raytm. 395. |