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![handle is hein.slavery/ssactsengr1038 and id is 1 raw text is: BERMON V. WOODBRIDGE
Serjeant, obtained a rule to shew cause, why the Master's allocatur of the costs taxed
for the plaintiffs in this action should not be vacated, and why he should not tax the
defendants their costs on the postea.
The case had been argued in the beginning of last Hilary term, but I was not in
Court. It then stood over till this day, it being understood, that there was, for some
time a difference of opinion among the Judges.
Lord Mansfield now stated the case, and delivered the unanimous opinion of the
Court, to the following effect.
Lord Mansfield.-This is an action of trespass quare clausum fregit. The first
count states, 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 is another count, upon a similar trespass, in another close. The
defendants have pleaded the general issue to the whole declaration, and two special
pleas to the second count; and, on the trial, a verdict has been found for the plaintiffs,
on the general issue, with Is. damages, and for the defendants, on the special pleas;
and the Judge has not certified. The question, on this record, is, whether the
plaintiffs are intitled to any more costs than damages under the statute of 22 & 23
Car. 2, c. 9, § 136 (a) 7 There is a puzzle and perplexity in the cases on this part of
the statute, and a [781] 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 declara-
tion, is a mode, a qualification, of the inquiry 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 out 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.
The rule made absolute as to vacating the allocatur of the plaintiffs costs [t 167].
BERMON against WOODBRIDGE. Monday, 2d July, 1781. An insurance on a ship
and goods, at and from A. to B., during her stay and trade there, at and from
thence to her port or ports of discharge in C. and at and from thence back to
A.,-is .an entire contract, and, if the loss happen at any time after the com-
mencement of the risk, there shall be no return of premium.
On the first day of this term, Lee obtained a rule to shew cause, why there should
not be a new trial in this cause, which had come on before Lord Mansfield, at Guild-
(a) Or st. 2, c. 5, § 149.
[t 167] Vide Cockerell v. Allanson, B. R. T. 22 Geo. 3. gar Cotterill v. Tolly,
B. R. E. 27 Geo. 3, 1 Term Rep. 655, 656 [F].
[F] There is a report of the former case in Hullock on Costs, p. 86, and a short
notice of it in Bull. N. P. p. 330, which is not quite correct: the decision in the case
appears properly to have been, that where there is a plea of a right of way in
certainty, by metes and bounds, a replication, extra viam, rejoinder not guilty, and
verdict thereon, and on the general issue to the declaration, and damages given under
40s. there shall be no more costs than damages. Otherwise where the plea is a right
of way general. In Cotterill v. Tolly, which was assault and battery, where the same
count charged a beating and tearing the plaintiff's clothes, and the jury found that
the clothes were torn in consequence of the beating, and the damages were under
40s.; it was held, on tho authority of this case, that the plaintiff was entitled to no
more costs than damages.
2 DOUGL 781.
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