ON JUDG- On judgment for the defen dant on ver dict. The like on and by the said court of our said lord the king, before the king himself, (or, if in C. P.“ which in and by the said court of our said lord the king, of the Bench,") were then and there adjudged to the said A. B. for his damages, which he had sustained, as well by reason of the detention of the said debt as for his costs and charges, by him about his suit in that behalf expended, whereof the said C. D. was convicted, as by the record, &c.. [As in the last precedent to the end.] [Same as the precedent, ante, 232, to the †, then proceed as follows:-] "The sum of L.——, above demanded, which in and by the said court of our said lord the king, before the king himself, were adjudged to the said A. B. and with his assent for his costs and charges, by him laid out and expended, in and about his defence of a certain action of trespass on the case on promises, (or as the action is,) then lately prosecuted in the said court by the said C. D. against the said A. B.; whereof the said C. D. was convicted, as by the record, &c.-[Same as the precedent, ante, 232, to the end.] [For the description of a judgment of nonpros for not enterother judging the issue, or as in case of a nonsuit *-, or on a nonsuit, see Tidd's Forms, 2 edit. 331 to 333. 7 Wentw. 120.] ments. [234] BY PARTY s. 1. for double VI. ON STATUTES. [Commencement in debt, ante, 184. n. a.] For that whereas the said GRIEVED. C. D. before and at the time of the giving of the notice, and making 36. Landlord the demand as hereinafter mentioned, and from thence until and upon against tenant, on stat, the day of, A. D. [the day when the tenancy determined,] 4 Geo. 2. c.28. held and enjoyed a certain messuage and lands and premises, with the appurtenances, situate, &c, as tenant thereof to the said A. B. that is to say, as tenant thereof from year to year (e) for so long time as the landlord's they the said A. B. and C. D. should respectively please, the reversion notice (d). of the said premises, with the appurtenances, during all that time belonging to the said A. B. to wit, at, &c. aforesaid; and thereupon whilst value for not quitting in pursuance of (d) When the tenant gives the notice to quit, be forfeits double rent, under the 11 Geo. 2. c. 19. recoverable either in assumpsit or debt, ante, 42. 2 Wentw. 65. 7 Wentw. 163. But the 4 Geo. 2. c. 28. directs the action to be debt when the tenant neglects to quit in pursuance of the landlord's notice; and a distress cannot be supported, see 4 Burr. 1608. Vin. Abr. Distress, E. See the decisions and various precedents on this statute. 5 Burr. 2694. 1 New R. 174. 8 East. 358 361. 9 East. 310. 10 East. 48. 2 Campb. 453. Selwyn. n. p. 2d edit. 628; and 7. Wentw. Index, 564, 5, (e) Qu. if it extends to a tenant for less than a year? 2 Campb. 453. GRIEVED. [⚫ 235] the said C. D. so held and enjoyed the said tenements with the appur- BY PARTY tenances as tenant thereof to the said A. B. as aforesaid, and whilst the said reversion so belonged to the said A. B. as aforesaid, to wit, on, &c. [the date of the notice,] at, &c, he the said A. B. gave a notice in writing (f) to the said C. D. and then and there demanded (g) and required him the said C. D. to deliver up the possession of the said tenements, with the appurtenances, to the said A. B. on the said, &c. on which day the term, estate, and interest of the said C. D. in the said tenements, with the appurtenances, determined, to wit, at, &c.— Nevertheless the said C. D. not regarding the statute in such case made and provided, did not nor would on the determination of the said term as aforesaid, deliver the possession of the said tenements, with the appurtenances, to the said A. B. according to the said notice so given, and the said demand so made, as aforesaid, but wholly neglected and refused so to do, and on the contrary thereof, he the said C. D. wilfully held over the said tenements, with the appurtenances, after the determination of the said term, and after the said notice so given, and the said demand so made as aforesaid, for a long space of time, to wit, for the space of, then next following, during all which time the said C. D. did keep the said A. B out of the possession of the said tenements, with the appurtenances, (he the said A. B. being, during all that time, entitled to the possession thereof,) to wit, at, &c. aforesaid, contrary to the form of the statute in such case made and provided (h). And the said A. B. avers that the said tenements, with the appurtenances, during the said time of holding over the same, and keeping the said A. B. out of the possession thereof as aforesaid, were of great yearly *value, to wit, of the yearly value of L, of lawful, &c. and by reason of the premises, and by force of the statute in such case made and provided, the said C. D. became liable to pay to the (f) A notice in writing is necessary, by the express words of the statute, 1 New. Rep. 180. n. a. Burr. 603. (g) The precedents sometimes run, "and thereby then and there demanded," &c. founded on the decision in 5 Burr. 2694. and 1 New. Rep. 174. 179. that the notice itself is a sufficient demand, and, therefore, that no fresh demand after the expiration of the tenancy, needs be averred or proved. It may, however, be advisable when, in fact, a demand of possession has been made after the expiration of the notice to quit, at least in one count, before the statement of the holding over, to aver as follows: "And the said A. B. in fact saith, that after the determination of the said term of the said C. D. as aforeVOL. II. said, and whilst the said C. D. con- (h) The precedents in 5 Burr 2694. [236] BY PARTY GRIEVED. 37. On 2 & 3 Edw. 6. C. 13. [237] Said A. B. a large sum of money, to wit, the sum of L.-, of like lawful money, being at the rate of double the yearly value of the said tenements, with the appurtenances, for so long time as the same were so detained as aforesaid, to wit, at, &c. aforesaid, and thereby, and by force of the said statute, an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L., parcel of the said sum above demanded.—[Add two counts in debt for use and occupation-the account stated—and common conclusion.] [Commencement in debt, ante, 184. n. a.]-For that whereas the s. 1. for treble said A. B. before, and at the several times hereafter in this count value of tithes mentioned, was and still is farmer, (or, “rector of the parish of, &c." not set out (i). or, "vicar of the parish of, &c.") and proprietor (j) of the tithes of corn, grain, and hay (k), yearly rising, growing, renewing, and happening, in, upon, and from divers, to wit, () acres of land, situate, lying, and being in the parish of, in the county of and within the bounds, limits, and titheable places of the same parish, and the said C D. during all the time aforesaid, was the occupier of the said land, to wit, at the parish, &c. aforesaid. And whereas all and singular the tithes of corn, grain, and hay yearly arising, growing, renewing, and happening, in, upon, and from the said land, within forty years next before, and at the time of the making of a certain act of parliament, passed in the reign of Edward VI. (m) formerly king of England, &c. intituled "an act for the payment of tithes," of right, ought (n) to have been set out and paid in kind to the farmer or proprietor of those tithes, for the time being, to wit, at the parish aforesaid, in the county aforesaid. And the said A. B. so being farmer and (i) See precedents, 5 T. R. 260. 7 Wentw. Index, 558, 9. This statute affords the only common law remedy for subtraction of tithe. 8 East. 178. It only extends to prædial tithe, and not to tithe of agistment. Bul. Ni. Pri. 191. 3 Anstr. 764. The farmer of the whole of a partible rectory under lease from the different proprietors, may declare as farmer of the whole. Yelv. 63. Two farmers may join in this action. Nil debet, or not guilty, is a good plea. Cro. Eliz 621. 766. Hob. 218. 2 Inst. 651. The jury cannot give other than treble value nor costs. Moore. 915. Where there has been a composition, this count cannot be supported, and the plaintiff must sue upon the contract, as ante, 53. The notice to determine such a composition is analogous to a notice to quit land. 12 East. 83. The validity of a custom as to tithing, is triable in this action. 8 East. 178. On account of costs, it is frequently better to proceed in equity. 2 Inst. 651. (j) As to this allegation and the evidence, Moore. 915. 4 Mod. 422 3 T. R. 635. n. a. 4 T. R. 367. (*) This should correspond with the tithe not set out. (1) Any quantity sufficient to cover that occupied by the defendant. (m) See 1 Saund. 139. It is improper to state that the statute was passed on the 4th Nov. in the 2d and 3d. &c. See Com. Dig. Action on Statute. 1 Moore, 302. Cowp. 474. (n) As to this allegation, see 3 T. R. 260. As to the evidence, see 2 Taunton. 174. How composition is to be determined by notice, see 12 East. 83. GRIEVED. proprietor of the said tithes, and the said C. D. so being the occupier BY PARTY of the said land as aforesaid, he the said C. D. heretofore, to wit, on, &c. and on divers other days and times between that day and the day of exhibiting this bill (or "the commencement of this suit") at the parish aforesaid, reaped, mowed, and cut down certain corn, grain, and hay, to wit, — acres of wheat, &c. then growing upon the said land (0), the tithe whereof then belonged to the said A. B. and of right ought to have been set out and paid to him as such farmer and proprietor as aforesaid, to wit, at the parish, &c. aforesaid. Yet the said C. D. being a subject of this realm, and well knowing the premises, but not regarding the statute in such case made and provided, after the said reaping, mowing, and cutting down of the said corn, grain, and hay respectively, and before the exhibiting of the bill of the said A. B. against the said C. D. in this behalf, (or "the commencement of this suit,") to wit, on, &c. aforesaid, and on the several other days and times aforesaid, at the parish aforesaid, did take and carry the said corn, grain, and hay from the said land, where the same had so grown, and *been so reaped, mowed, and cut down as aforesaid, and where the same ought to have been tithed, (the tenth part of the same respectively, or of any part thereof, not having been separated, divided, or set out from the nine parts, residue thereof, nor any composition or agreement made with the said A. B. for the tithe thereof, or of any part thereof (), contrary to the form of the statute in such case made and provided (7). And the said A. B. in fact saith, that the tenth part of the said corn, grain, and hay, so as aforesaid taken and carried away, at the time of taking and carrying away the same, was reasonably worth a large sum of money, to wit, the sum of L.-, of lawful, &c. whereby and by force of the statute in such case made and provided, an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L., parcel of the said sum above demanded, being treble the value of the said tenth part of the said corn, grain, and hay, so taken and carried away as aforesaid.[Add two counts in debt as ante, 185, stating the debt for tithes, as ante, 53, and conclude in debt, as ante, 187.] [238] INFORMERS. (4) [The commencement is as ante, 184. n. a. the penalty being given 2. BY COMMON entirely to the plaintiff by 2 G. 3. c. 19, s. 5. When the plaintiff sues 38. On 5 Ann. qui tam, the commencement is different; see ante, 13. 17]-For that (4) Where a statute gives a form of declaring to the party grieved, in a suit by a common informer, the plaintiff must notwithstanding, state his cause of action c. 14. against an unqualified person for using a gun to kill game (r). INFORMER. [ ⚫ 239 ] BY COMMON the said C. D. within the space of six (s) months next before the commencement of this suit, to wit, on, &c. (t) at the parish (u) *of, &c. in the county of, &c. did use (w) a certain gun, (or "greyhound,") (x) to kill and destroy (y) the game of that part of the united kingdom of Great Britain and Ireland, called England, the said gun then and there being an engine (z) for the killing and destroying of such game; (a) and he the said C. D. not then being a person qualified (6) by the laws and statutes of this realm, or any of them so to do, contrary to the form of the statute (c) in such case made and provided, whereby and by force of the statute in such case made and provided, the said C. D. forfeited for his said offence the sum of L.5 (d), and thereby and by force of the statutes (e) in such case made and provided, an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L- -, so forfeited as aforesaid, parcel of the said sum above demanded. by 9 Ann. c. 25. The 8 Geo. 1 c. 19. (s) This allegation seems unnecessary, (w) As the keeping of a gun is prima (x) As the statute only specifies particular dogs, viz. grey-hounds, setting-dogs, and lurchers, it is necessary so to describe the dog.-A conviction for using a hound was quashed, Burn's Justice, tit. Game III. 2 Stra. 1126. Com. Rep. 576. (y) This is the language of the 5 Ann. c. 14. s. 4. Pleader's Assistant, 296. (2) As to this allegation, see Com. Rep. 524. 576, 7 Cowp. 825. (a) Id. Ibid. Com. Rep. 577. (b) It is not necessary in a declaration to negative particularly the quali fications mentioned in 22 & 23 Car. 2. c. 25; and the general averment of the defendant's not being qualified is suf ficient. 2 Com. Rep. 524. 576. 1 East. 649. Nor is it necessary for the plaintiff to negative the qualifications in evidence. 1 B. and P. 468, 9; but this is otherwise in the case of a conviction. 1 East. 639.-3 East. 192. 197. 8. 200. 3 B. & P. 307. 1 T. R. 648. (c) 5 Ann. c. 14. Com. Rep. 578. (d) 5 Ann. c. 14. As to what penalty is recoverable against several persons, or for several acts on the same day. 4 T. R. 809. Cowp. 646. 10 Mod. 26. 5 T. R. 510. (e) As one statute makes the offence, and another statute, 2 Geo. 3. c. 19. gives the whole penalty to the plaintiff, this allegation, in the plural number, is correct, 2 East. 333. but it would suf specially, 4 Johns. Rep. 193. 197. The provision of the statute must be set forth, and there must be a direct allegation that the offence was committed against the form of the statute. 10 Mass. Rep. 39. |