case styleman against patrick the statute car c S which give no more cost than  damage where the damage be under forty shilling unless the judge certify that  a title be principal in question do not extend to a action for disturbance of  common S C Freem a action on the case be bring by the plaintiff against the  defendant for eat of his grass with his sheep so that he can not in lamb  opportunity modus enjoy his common and there be a verdict for the plaintiff it  be now move that he shall have no more cost than damage because this be a  trespass in its own nature and the judge of assize have not certify that the  title of any land be in question but the court be all of opinion that this  case be not within the statute for it be not a frivolous action because a  little damage do to one commoner and so to twenty may in the whole make it a  great wrong if the cause be frivolous the judge of assize may mark it to be  such by virtue of the statute of Elizabeth c and then there shall be no more  cost than damage and though in this case the plaintiff have in his declaration  set out a title to his common yet the title of the modern land can possible  come in question and therefore not to be certify as in case of trespass  neither be there any need of a certificate if it appear by the plead that the  title of the land be in question the court be against the defendant as to the  cost his counsel then move in arrest of judgement because the plaintiff set  forth his right to the common only by way of recital with a at any time etian  c that he have a right to common in such a place say non allocatur for it be  affirmative enough and afterward he be charge with do the plaintiff damage and  so the case be not like to a action of trespass quare cam he do a trespass for  there the sense be imperfect hilary term the twentyeighth and twentyninth of  Charles the second in the common plea sir Francis north Knt chief justice sir  Hugh Wyndham Knt sir Robert Atkins Knt sir William Scroggs Knt justice sir  William Jones Knt attorneygeneral sir Francis winnington Knt solicitor general