appleton versus smith No more cost than damage in trespass if the verdict be  under S the question be whether the plaintiffshould have full cost or no more  cost than damage upon the follow case this be a action of trespass way et arms  for break and enter the plaintiff dwellinghouse and there make a great noise  and affray and disturbance and continue it for two hour and until the  plaintiff and his father Richard Appleton the elder and one Christopher Atkins  be compel and oblige to give and do give the defendant their promissory note  for S Payable to he the say defendant the jury find for the plaintiff and give  he a guinea damage Mr sergeant nares insist on behalf of the defendant that  the plaintiff can in this case have no more cost than damage for that by the  statute of pound car c ult in all action of trespass assault and battery and  other personal action wherein the judge at the trial of the cause shall not  certify upon the back of the record that a assault and battery be sufficient  prove or that the freehold or title be chief in question and the damage find  be under S the plaintiff shall recover no more cost than damage this be a  general action of trespass and there be no certificate from the judge the  circumstance of continue the noise and disturbance until these three person  give their note for u be only aggravation burrow there be two case in point  videlicet blunt v mither in c b sir I S call blunt v miller in gilbert case in  scacc and Boiture v Woolrick in ld raym the case of Swinstead v Lyddall salk  be also a case similar to the present it be a action of trespass and false  imprisonment for such a time and until what time he pay I S it be hold I that  the until what time be not the cause of action but the imprisonment the until  what time be only matter of aggravation and there be a late case of Howard v  part from Staffordshire which be a action by a schoolmaster for disturb he in  the possession of his house and continue such disturbance c the verdict be for  less than S and there be no certificate and the plaintiff can have no more  cost than damage Mr sergeant Davy argue contra for the plaintiff the question  in this case be whether the freehold can come in question for if it can not  then the judge can not certify and the settle construction be that this  statute be restrain to those case in which the judge can certify where the  damage be consequential under a per quod it be indeed only aggravation the  case cite against I be all of they such case of aggravation by reason of  consequential damage where there be a to carry away the title can never come  in question nor in action of mere assault and battery for this statute of c c  ult do not extend to all trespass but only to such trespass quare enclosed  space to break in pieces in which the freehold of the land may probable come  in question and so it be determine Mr I foster be absent or ford v part it be  so settle in the case of smith v clarke p g b r burrow er p express in Mod  barn v Edgard and in smith v Batterton there cite and report in raym and sir t  Jones and in Thomson v berry in c b report in sir I S all the case apply to  this general rule Lord Mansfield this case depend upon the word and until the  plaintiff c be compel c which word be bare a aggravation of the defendant  continue in the house and nothing more burrow on the first word videlicet  break and enter the house the freehold may have come in question Mr justice  denison concur that they be only word of aggravation which need not even be  answer in a plea the court direct the master to tax the cost at a guinea only  see this subject relate to the recovery of full cost or the not obtain any  more cost than damage very clear explain by Lord chief baron Gilbert in  deliver the opinion of the court of exchequer in the case of reeves v butler h  g where he compare and interpret the several statute upon which case of this  kind depend and vindicate the reason and resolution of the judge upon c c ult  among the modern resolution which he mention he report the case of blunt v  miller as he call the defendant in the very same word with sir John strange  except a gross misprint of decree instead of deny and a year antedate of the  time m g gilbert equity case to