so as aforesaid being occupier of the said last-mentioned land, and the plaintiff so being proprietor of the said tithe as last aforesaid, heretofore, to wit, on the said &c., the defendant the wood and underwood in and upon the said last-mentioned land then growing, and being coppice wood, and under the growth of twenty years, did cut down and lop, the tithes of which said wood and underwood, in and upon the said last-mentioned wood and underwood, did belong and of right ought to have been paid and yielded to the plaintiff, so being such proprietor thereof as aforesaid, nevertheless the defendant, being a subject of this kingdom, after the said cutting and lopping and topping of the said wood and underwood as aforesaid, that is to say, on the &c., and on the several other days and times aforesaid, took and carried away the said wood and underwood from the places where the same were so cut down, lopped, and topped as aforesaid and where the same ought to have been tithed (the tenth part thereof not having been separated, divided, thrown out, set out, or set forth by the defendant from the nine parts, residue thereof, nor any agreement or composition made by the defendant with the plaintiff for the tithe thereof,) contrary to the form &c.; and the plaintiff avers, that the tenth part of the said last-mentioned wood and underwood and bark, so as aforesaid taken and carried away as aforesaid, was of the value of £, whereby, and by force, &c. [actio accrevit] for treble value, other parcel, &c. [Add a count for tithes bargained and sold generally, if there be any doubt as to there being a composition, and conclude as ante, 286.

BY PARTY
GRIEVED.

The precedent of a declaration on the 5 Geo. 3, c. 14, s. 3, by the owner of By owner of a a fishery, for £5 penalty against a person fishing there, inserted in the first four fishery for a £5 penalty. editions of this work, is omitted in this, that statute being wholly repealed by the 7 & 8 Geo. 4, c. 27, and none of the re-enactments of the 7 & 8 Geo. 4, c. 29, enable a party to sue for any penalty (not more than £5,) the sum being recoverable only before magistrates, see the 7 & 8 Geo. 4, c. 29, s. 34; and Burn's J. tit. "Fish," vol. 2, 27th edit.

See form, Robinson v. James, 1 Dow. N. R. 756.

For the reco

very of poor

rates from the landlord of premises under the provisions of the 11 Geo. 4, c. 10, the local act for regulating the affairs of the parishes of St. Giles'-in-the-Fields and St. George's, Bloomsbury.

Commencement in debt, ante, 284.] For that the defendant, within three On the 9 Anne, months next before the commencement of this suit, to wit, on &c. [any day the loser, for c. 14, s. 2, by within three months before the date of the writ], was indebted to the plaintiff money lost at in the sum of [£20], by force of the statute made and passed in the ninth play at one year of the reign of our late Queen Anne, intituled "An Act for the

(b) The statute allows a general form of declaring at the suit of the party grieved, see forms, 2 Wils. 36; 2 H. Bla. 308; Lil. Ent. 168; and money lost at play cannot be recovered back in a common law form of action of debt for money had and received, not founded on the statute, and the plaintiff must declare particularly on the act; 1 M. & Sel.

500.

In such an action a defendant may plead in abatement, that the money was due from

others as well as himself, and that they are
not, but ought to have been, made parties; 7
T. R. 257.

But a stakeholder, upon a wager on a
horse-race for £20, or other illegal wager, is
liable to a common law action for money had
and received, if the money be demanded be-
fore he pays it over to the winner; 6 D. & R.
26.

The right to sue is a vested interest, and on bankruptcy passes to the assignees; 2 Ves.

sitting, to recover it back

from the winner. (b)

BY PARTY
GRIEVED.

The like in

betting at a horse race.

On 29 Eliz. C.

4, and 43 Geo. 4, c. 46, s. 5, against the she

riff for extortion on final process. (c)

better preventing of excessive and deceitful Gaming," being money then lost and paid by the plaintiff to the defendant, and by the defendant then won of the plaintiff, by playing with dice at a certain unlawful game, commonly called or known by the name of [French hazard,] at one sitting, contrary to the form of the said statute in such case made and provided, whereby and by force of the statute an action hath accrued to the plaintiff to demand and have of and from the defendant the said sum of £20, parcel of the said sum above demanded. [Before the pleading rules, Hil. T. 4 W. 4, reg. 5, prohibiting more than one count on the same transaction, it was usual to insert a second count as follows :-

And also for that the defendant, within three months next before the commencement of this suit, to wit, on the day and year aforesaid, was indebted to the plaintiff in the further sum of £20, for monies then lost and paid by the plaintiff to the defendant, by [playing at a certain game, to wit, a game called French hazard,] at one sitting, [or "by betting on the sides of the persons playing at a certain game, to wit, a horse-race, at one time,”] contrary to the statute in that case made and provided, whereby, and according to the force of the said statute, an action hath accrued to the plaintiff to demand and have of and from the defendant the said sum of £20, residue of the said sum above demanded.

Commencement, ante, 284.] For that whereas A. B. heretofore, to wit, on [the day of signing final judgment], in the Court of our lady the queen, before the queen herself, [or if in C. P. say,

BY PARTY

GRIEVED.

cess.(i)

"in the Court of our lady the queen of the bench at Westminster, before the Honourable Sir Nicholas Conyngham Tindal, Knt., and his companions, then her said majesty's justices of the bench at Westminster, in the county riff for extortion on final proof Middlesex," or "in the Court of Exchequer of Pleas,"] by the consideration and judgment (k) of the same Court, recovered against the new Statement of the plaintiff a certain debt, [or if the judgment were in assumpsit, state it as ante, judgment. 338,] of £, and also £- - costs, which in and by the same Court were adjudged to the then plaintiff and with his assent for his damages, which he had sustained as well by occasion of the detaining of the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the now plaintiff was convicted, as by the record and proceedings thereof still remaining in the same Court at Westminster aforesaid will more fully appear. (1) And the plaintiff further saith, that the said judgment being in The writ of fieri full force, and the said debt and damages [or if in assumpsit, " damages,"] facias therein. remaining unpaid and unsatisfied, the then plaintiff, on &c. (m) for the obtaining satisfaction thereof, sued and prosecuted out of the said Court a certain writ of our said lady the queen, called a fieri facias, directed to the sheriff of -, by which said writ our said lady the queen commanded the said sheriff, (n) that of the goods and chattels of the said E. F. (the now

(i) The sheriff's right to poundage on executing a fi. fa. is not affected by the 1 Vict. c. 55, or the table of fees under it; Davies v. Griffiths, 4 M. & W. 377; but he is only entitled to his poundage under that statute, and to such fees as are allowed by the table of fees framed under 1 Vict. c. 55; Slater v. Hawes, 7 M. & W. 413. No poundage is now payable on executing a writ of capias ad satisfaciendum, but the sheriff is entitled to such fees only as may be allowed to be taken by sheriffs concerned in the execution of process under the sanction and authority of the judges of the Court of common law at Westminster, pursuant to the 1 Vic. c. 55.

This action may be supported against the sheriff, he being liable for his bailiff's acts; 2 T. R. 154. But where more than the sum allowed had been taken by an officer of sheriff, who kept a lock-up house, but who was not the officer to whom the warrant was directed, but to whose house the defendant was brought after the arrest, it was held that no action lay against the sheriff; 4 Esp. 63.

3

An action for money had and received may be maintained against the sheriff, to recover the surplus of excessive poundage taken; B. & B. 145; 6 J. B. Moore, 338, S. C.; 2 Bing. 255; 1 Stark. 345.

Where the sheriff retained out of the proceeds of a sale under an execution the expenses of keeping possession under an injunction out of Chancery, it was held that this being an indirect way of taking more than the poundage allowed by this statute, he thereby incurred the penalty of 29 Eliz. c. 4; 5 D. & R. 495; 3 B. & C. 688, S. C. And where it appeared by the sheriff's return of a writ of execution, that greater fees have been taken for the levy than are allowed by this statute, the sheriff was held liable to an action on the statute for treble damages at the suit of the party grieved; Woodgate v. Knatchbull, 2 T.

VOL. II.

R. 148. Under this statute the sheriff could
not take any other charge but for poundage,
id. ibid.

An action for money had and received at
the suit of the plaintiff, who has sued out a
fi. fa. lies against the sheriff who executed it,
if he retain more in his hands than he is en-
titled to do, the party injured not being bound
to proceed by motion in banc; 1 Stark. 345.

So if sheriff's officer takes money colore officii for any thing done in the course of his duty, and to which he is not entitled by law, though there is no evidence that the money came to his hands; 2 Esp. Rep. 507.

The statute was made at a session of parliament began on the 29th day of October, in the 28th year of the reign of Queen Elizabeth, and therefore where it was stated in a declaration to have been made at a session of par liament began on the 29th day of October, in the 29th year of her reign, the judgment was arrested; 2 Bing. 255.

The party grieved was entitled to recover treble the amount of damages found by the verdict; 6 D. & R. 1; 4 B. & C. 154, S. C.

(k) The judgment must be accurately described. As to what is a variance, see 5 B. & C. 339; 8 D. & R. 98, S. C.; 11 East, 516; 9 East, 298; 2 Campb. 525; 4 Taunt. 13.

(1) There seems to be no occasion to state, in an action for extortion, the original judgment; and it would suffice to state the issuing of the writ of execution. But before the recent pleading rules, if the judgment were stated, and nil debit pleaded, it must have been proved; 2 Bla. Rep. 1101; 6 T. R. 49. At all events, there is no occasion to refer to the record of the judgment by a prout patet per recordum; 3 B. & C. 2; 4 D. & R. 624, S. C.

(m) The teste of the writ.

(n) Examine the statement with the writ
A A

BY PARTY
GRIEVED.

Indorsement on writ what to levy.

The levy.

plaintiff,) in his the said sheriff's bailiwick, he should cause to be levied the
debt and damages [or if in assumpsit, "damages,"] aforesaid, and that he
should have that money before our said lady the queen [or if in C. P.
"justices of the bench,"] at Westminster aforesaid, on, (0) to render to
the said plaintiff for his debt and damages [or if in assumpsit, "damages,"]
aforesaid; and that the said sheriff should have there then that writ. Which
said writ afterwards, and before the delivery thereof to the said sheriff, as
hereinafter mentioned, to wit, on the said &c., was duly indorsed with a
direction for the said sheriff to levy £, besides sheriff's poundage,
officer's fees, and all other incidental expenses; (p) and which said writ,
so indorsed, afterwards, to wit, on &c. last aforesaid was delivered to the
now defendant, who then and from thence until and at and after the com-
mitting of the offence hereinafter mentioned was sheriff of the said county
of -
to be executed (q) in due form of law.* By virtue of which said
writ, the now defendant, so being sheriff of the said county of after-
wards, to wit, on &c. last aforesaid, and within his bailiwick, as such sheriff'
seized and took in execution divers goods and chattels of the now plaintiff (r)
of great value, to wit, of the value of the monies so indorsed on the said writ,
and directed to be levied as aforesaid, and then and there levied the same
thereout. Nevertheless the now defendant, not regarding his duty in that
behalf, nor the statute in such case made and provided, afterwards, to wit, on
the day and year last aforesaid, by reason and colour of his said office, under
and by colour of the said writ, wrongfully, illegally and oppressively, had, re-
ceived and took, of and from the now plaintiff, for the serving and executing
of the said writ of execution, and for poundage, fees and expenses of the same
execution and in respect and on account thereof, a much larger sum of
money, and more and other consideration and recompense than then was
or is by law allowed, limited or appointed in that behalf, that is to say, (s)
divers large sums of money, in the whole amounting to a large sum of
money, to wit, the sum of [10] more than and over and above the legal
and reasonable consideration and recompense for serving and executing the
said writ of execution, and for poundage, fees and expenses of the said
execution, and on account thereof in that behalf demandable, due and in-
curred, and over and above the said sum of £- so indorsed to be levied
as aforesaid, whereby the now plaintiff was and is damaged and aggrieved
to the amount of the said sum of money, to wit, to the sum of [10], con-
trary to the form of the statute in such case made and provided; and
thereby, and by force of the said statute, an action hath accrued to the now
plaintiff, to demand and have of and from the now defendant the sum of
£30, being treble the amount of the said damages, and parcel of the said
sum above demanded.

of fi. fa. For the different descriptions of
writs, see Tidd's Prac. Forms, and J. Chitty's
Forms, Index, tit. Fieri Facias.

(0) Examine with the writ of fieri facias.
(P) What a variance, 2 Bing. 255; 9
Moore, 425, S. C.; 5 Esp. Rep. 133; Ry. &
Moo. C. N. P. 291. Examine with the in-
dorsement on the writ.

(9) See the effect and proof of this aver-
ment, 2 Bing. 479; 10 Moore, 210, S. C.

(r) If the fi. fa. were against two, and it

be alleged that the goods of both were taken, it will suffice to prove that the goods of one were taken; 4 M. & Sel. 349.

(s) This is too general; Ashby v. Harris, 5 Dowl. 742; 2 M. & W. 673. If the action can now be sustained it should be alleged how much he took for poundage, and how much for the other expenses, and the excess should be clearly shown; see ante, 352, note (c).

BY PARTY
GRIEVED.

Another form
on the 29 Eliz.

c. 4, alone, for treble damages.

Commencement ante, 284.] For that whereas heretofore, to wit, on the day &c. [teste of fi. fa.] a certain writ of our lady the queen, called a fi. fa., was issued, &c. [here state fi. fa. and the delivery to the sheriff, ut supra,] by virtue of which said writ so indorsed, afterwards, to wit, on &c. last aforesaid, the now defendant, as such sheriff, seized and took in execution divers goods and chattels of the now plaintiff, and then levied the () said sum of money so indorsed. Nevertheless the now defendant, not regarding his duty in that behalf, nor the statute in such case made and provided, but contriving and wrongfully and injuriously intending to harass, oppress and injure the now plaintiff, heretofore, to wit, on &c. last aforesaid, wrongfully, illegally and oppressively took, had and received of the now plaintiff, for the serving and executing of the same execution, more and other consideration and recompence than by the statute in that behalf is allowed, that is to say, the sum of £10 more than in the said act is limited and appointed, contrary to the form of the statute in such case made and provided. By means whereof the now plaintiff was and is damaged and aggrieved to the amount of the said last-mentioned sum of £10, contrary to the form &c. [Conclude as in last precedent, and add the common count for money had and received, account stated, and usual breach, as ante, 286.

Against a sheriff's officer for taking a defendant to a public house, contrary to the

Commencement, ante, 284.] For that whereas heretofore, to wit, on the day of A. D. ——, there issued out of the Court of our lady the queen, before the queen herself, [or "C. P." or Exchequer of Pleas," according to the fact,] at Westminster, a certain writ of our lady the queen called a capias, whereby [state the writ and indorsement for bail according 32 Geo. 2, c. 28. to the fact, and see the statement, ante, 322,] and which said writ so in- (u) dorsed as aforesaid, afterwards and before the return thereof, to wit, on &c., was delivered to T. M., Esq., who then and from thence until and at and after the committing the offence hereinafter next mentioned was sheriff of the county of N., to be executed in due form of law; by virtue of which said writ the said T. M., Esq., so being sheriff of the said county of N. as aforesaid, afterwards and before the return thereof, to wit, on &c., in &c. aforesaid, for having execution of the said writ, duly made his warrant in writing directed to the defendant, who then and from thence until and at and after the committing of the offences hereinafter mentioned was bailiff of the said sheriff of the said county of N., by which said warrant the said sheriff of the said county of N. commanded the defendant to take the plaintiff, if he should be found in his bailiwick, and him safely keep, so that the said sheriff might have his body before the said justices of our said lady the queen at Westminster at the return of the said writ, to answer to the said W. V., A. W. and W. T. in the plea aforesaid, which said warrant was also then and there marked for bail for £and which said warrant so marked for bail, after and before the said return of the said writ, to wit, on &c. last aforesaid, in &c. aforesaid, was delivered to the defendant, then being one of the bailiffs of the said sheriff of the said county of N., to be executed in due form of law; by virtue of which said writ and warrant he the said defendant, afterwards and before the said

(t) See ante, 352, note (c), and ante, 354, note (s).

664; see form against the sheriff under the
same statute, Barsham v. Bullock, 10 A. &
E. 23.

(u) See form Dewhirst v. Pearson, 1 Dowl.