for his costs and charges, by him laid out and expended, in [For the description of a judgment of nonpros [Same as for not or on VI. ON STATUTES. By party grieved. 28. Landlord against tebant, on stat. 4 Geo. II. c. 28. s. 1. for [Commencement in debt as usual, anie, 141.] For that whereas the said C D before and at the time of the giving of the notice, and making the demand as hereinafter mentioned, and from thence until and upon the day of A. D. [the day when the tenancy determined,] held and endouble value joyed a certain messuage and lands, and premises, with the apfor not quit- purtenances, situate, &c. as tenant thereof to the said AB, that ting in pursuance of the is to say, as tenant thereof from year to year, for so long time landlord's notice. (8) as they the said A B and C D should respectively please, the reversion 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 the said CD so held and enjoyed the tenements, with the appurtenances, 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,] (8) When the tenant gives the notice to quit, he forfeits double rent, under the 11 Geo. II. c. 19. recoverable either in assumpsit or debt. But the 4 Geo. II. 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 Rep. 174. and 7 Wentw. Index, 564, 565. at, &c. he the said A B gave a notice in writing() to the said CD, and then and there demanded(u) and required him the said CD 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 CD in the said tenements, with the appurtenances, determined, to wit, at, &c. Nevertheless the said CD, 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.(x)— And the said A B avers, that the said tenements with the appurtenances, during the said time of holding over the same, (t) A notice in writing is necessary, by the express words of the statute, 1 New Rep. 180. n. a. Burr. 603. (u) 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 Bin fact saith, that after the determination of the said term of the said CD as aforesaid, and whilst the said (x) The precedents in 5 Burr. By party grieved. * 184 By party grieved. 29. On 2 and 3 Edw. VI. c. 13. s. treble value of tithes not set out.(y) *and keeping the said B out of the possession thereof, as aforesaid, were of great yearly value, to wit, of the yearly value of . 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 said A B a large sum of money, to wit, the sum of. 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 CD, the said sum of ―. 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, as ante, 141.] for that whereas the said A B before, and at the several 1. for times hereinafter mentioned, was and still is farmer, (or “ rector," or "vicar,") and proprietor(z) of the tithes of corn, grain and hay, yearly arising, growing, renewing and happening in, upon, and from divers, to wit, -(a) acres of land, situate, lying and being in the parish of, in the county of and within the bounds, limits and tithable places of the same parish, and the said CD, 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, now of the said C' D, within forty years next before, and on the fourth day of November, in the second year(b) of the reign of Edward VI. late (y) See precedents, 5 T. R. 260. 7 Wentw. Index, 558, 559. (z) As to this allegation and the evidence, 4 Mod. 422. 3 T. R. 635. n. a. 4 T. R. 367. (a) Any quantity sufficient to cower that occupied by the defendant. (b) See 1 Saund. 139. It is im-. proper to state that the statute was passed on the 4th of November, in the 2d and 3d, &c. Sce Com. Dig. Action on Statute, I. Moore, 302Cowp. 474. king of England, &c. of right, ought(c) to have been set out By party and paid in kind to the farmer or proprietor of those tithes, grieved. for the time being, to wit, at the parish, &c. aforesaid. And the said A B so being farmer and proprietor of the said tithes, and the said CD so being the occupier of the said land as aforesaid, he the said CD heretofore, to wit, on, &c, and on divers other days and times, between that day and the day of in the same year did reap, mow and cut down, certain corn and grain, to wit, acres of wheat, &c. then growing upon the said land, the tithe whereof 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, nor fearing the penalties therein contained, after the said reaping, mowing and cutting down, of the said corn and grain, and before the exhibiting of the bill of the said A B, against the said CD in this behalf, to wit, on, &c. aforesaid, and on the said several other days and times aforesaid, at the parish, &c. aforesaid, did take and carry the said corn and grain from the said land, where the same had so grown, and been so reaped and cut down, and where the same ought to have been tithed, (the tenth part thereof, or any part thereof not having been separated, divided, or set out from the nine parts thereof, nor any composition or agreement made for the tithe thereof, or of any part thereof, with the said A B,) contrary to the form of the statute in such case made and provided.(d) And the said A B in fact saith, that the tenth part of the said corn and grain 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 7. 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 CD, the said sum of 1. parcel of the said sum above demanded, being treble the value of the said tenth part of the said corn * 187 (c) As to this allegation, see 5 T. R. 260. (d) As to this allegation, see ante, 184. n. (x). By party grieved. and grain, so taken and carried away as aforesaid. [Add a count in debt for tithes, as ante, 18. and conclude in debt, as ante, 144.] 11. By com mon inform ers. 30. On 5 Ann. e. 14. against an unqualified person for using a gun to kill game. (e) * 188 [The commencement is as ante, 141. the penalty being given entirely to the plaintiff, 2 Geo. III. c. 19. 8. 5. When the plaintiff sues qui tam, the commencement is different: see The Forms of Court.] For that he the said C D, within the space of six(ƒ) months next before the commencement of this suit, to wit, on, &c.(g) at the parish of,() &c. in the county of, &c. did use(i) a certain gun, (or "greyhound,")(k) to kill and destroy() 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(m) for killing and destroying of such game (n) and he the said CD not then being a person qualified (0) by the laws and statutes of this realm, or any of them so to do, (e) This statute was made perpetual by 9 Aan. c. 25. The 8 Geo. I. c. 19. gives double costs; the 2 Geo. III. c. 19. gives the whole penalty to the informer when he proceeds by action. See the precedents for different offences, 7 Went. Index, 561, 562. (f) This allegation seems unnecessary, though the action must be brought within six lunar months, 2 East, 353. 362. () As the statute only specifies particular dogs, viz. greyhounds, setting-dogs and lurchers, it is necessary so to describe the dog. A conviction for using a hound was quashed, Burns' Justice, tit. Game, III. 2 Stra. 1126. Com. Rep. 576. (1) This is the language of the 5 Ann. c. 14. s. 4. Pleader's Assistant, 296. (m) As to this allegation, see Com. (g) The precise day is not ma- Rep. 524. 576, 577. Cowp. 825. terial. (h) The name of the parish is not material in a penal action, unless a part of the penalty be given to the poor thereof, 3 Esp. Rep. 218. (i) As the keeping of a gun is prima facie lawful, seems unnecessary to insert a count for keeping a gun for the destruction of game, 1 Wils. 315. 2 T. R. 18. but in case of dogs and snares, &c. it is usual to insert two counts, one for keeping, and the other for using the same for the destruction of game. (n) Id. ibid. Com. Rep. 577. (0) It is not necessary in a declaration to negative particularly the qualifications mentioned in 22 and 23 Car. II. c. 25. and the general averment of the defendant's not being qualified is sufficient, 2 Com. Rep. 524. 576. 1 East, 649. Nor is it necessary for the plaintiff to negative the qualifications in evidence, 1 B. & P. 468, 469. but this is otherwise in the case of a conviction, 1 East, 639. 3 East, 192. 197, 198. 200. 3 B & P. 307. 1 T. R. 648. |