Sherwin v Swindall
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1844 |
| Date | 07 May 1844 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 1416
EXCH. OF PLEAS.
S. C. 1 D. & L. 999; 13 L. J. Ex. 237; 8 Jur. 580.
1416 SHERWIN V. SVVINDALL 12 M. & W. 784. sherwin v. swindall. Exch. of Pleas. May 7, 1844.-In trespass for breaking and entering the plaintiff's house, and seizing arid taking away his goods, the evidence was that the defendant went to the house to take, under the process of a county court, certain goods supposed to be there ; that, being refused admittance, he broke open the outer door with an axe, after a warning not to do so, entered the house, and took away certain goods of the plaintiff':-Held, that this was a case in which the judge had power, under the stat. 3 & 4 Viet. e. 24, s. '2, to certify that the trespass was " wilful and malicious," so as to give the plaintiff his full costs, the damages found by the jury being under 40s. [S. C. 1 D. & L. 999 ; 13 L. J. Ex. 237; 8 Jur. 580.] Trespass for breaking and entering the plaintiff's dwelling-house, breaking the outer door thereof, and seizing and taking away his goods. Plea, not guilty. At the trial, before Parke, B., it appeared that the defendant went to the plaintiffs house in order to take, under the process of the county court, certain goods which he supposed to be there; that, being refused admittance, he threatened to break into the houae, and, notwithstanding a [784] caution from the plaintiffs son not to use any violence, procured an axe, broke open the outer-door, and, having got into the house, insisted on searching a bed-room, in which he declared the goods to be ; and committed the other grievances complained of. The jury found a verdict for the plaintiff, with 20s. damages ; whereupon the learned Judge certified, under the stat. 3 & 4 Viet. c. 24, s. 2, that the trespass was "wilful and malicious," in order to give the plaintiff his costs; intimating, at the same time, some doubt whether it could be considered to be malicious, within the meaning of that act. Whateley having obtained a rule to shew cause why the certificate should not be set aside, Martin now shewed cause. This question turns on the construction to be put upon the recent statute, 3 & 4 Viet. c. 24, the second section of which gives the Judge power, on the trial of an action of trespass, to certify that the trespass was "wilful and malicious," and thereby to prevent the operation of the enacting part of that clause, which deprives plaintiffs in trespass of their costs if the damages recovered are less than 40s. The words "wilful and malicious," in this statute, ought to receive the same construction which has been put upon them, as used in the stat. 8 & 9 Will. 3, c. 41, s. 4; which, "for the preventing of wilful and malicious trespasses," enacted, that, in all actions of trespass commenced after the 25th March, 1( 97, in any of the Courts at Westminster, "wherein at the trial of the cause, it shall appear and be certified by the Judge, under his hand, upon the back of the record, that the trespass upon which any defendant shall be found guilty was wilful and malicious, the plaintiff shall recover, not only his damages, but full costs of suit, any former law to the contrary notwithstanding." On the construction of this statute, it has been held, that a trespass after notice is a wilful and malicious trespass, in respect of which the Judge ought [785] to certify: Reynolds v. Edwards (6 T. E. 41). [Parke, B. I thought at the trial, that I ought to put upon the late act the same construction as upon the statute of William III.; but I had not then looked at the third section, which throws some doubt upon it. I certainly did not think there appeared to be any personal malice or ill-will on the part of the defendant; it was only a violent and unauthorized act.] The third section provides, that nothing in the act contained shall be construed to deprive the plaintiff of costs in any action for a trespass to land, &c., "in respect of which notice not to trespass therein shall have been previously served by or on behalf of the owner qr occupier of the land trespassed over, upon, or left at the last reputed or jvuown place of abode of, the defendant in such action." That section, however, may have an independent operation given to it: viz., that, in the case of a trespass after the service of such written notice as is mentioned therein, the Judge shall certify for coats; whereas, under the second section, he has a discretion. But a "wilful and malicious" actj according to the legal acceptation of the terms, means no more than a wrongful act...
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