an act or law of [our province of the Massachusetts bay,] made &c., entitled, "an act in addition to an act made to prevent the destruction of the fish called alewives, and other fish;" whereby an action hath accrued to the plaintiff who sues as aforesaid, to have and demand of the said D and E, the sum of $-, the one half thereof to the use of the poor of the town of H aforesaid, and the other half to himself; yet the said D and E, or either of them, have not paid it, though often requested, but unjustly deny to pay it; to the damage of the plaintiff, who sues as aforesaid, &c.

FARNHAM. NOTE. This act, 15 G. II, is unrevised and unrepealed. It may be found in the Appendix to the edition of the laws (1800,) p. 1020.

Another.

For that the said D on &c., was, and ever since hath been, the owner and occupant of a certain mill-dam, long before that time made and erected across a certain stream, in &c., known by the name of &c., being a stream where the salmon, shad, alewives, and other fish usually passed up into their natural pond above, to cast their spawn; but the said D hath never made a sufficient passage-way for the fish to pass up the said stream, either through or round the said dam, from &c. to &c.; by reason whereof, the said fish during all that time and season, were wholly prevented from passing up the said stream, contrary to an act &c., entitled &c.; whereby an action hath accrued to the plaintiff, who sues as aforesaid, to demand and have of the said D, the sum of $-, one half thereof to the use of the plaintiff, and the other half thereof to the use of the poor of the town. of, &c. R. DANA. NOTE. Prov. Law, 15 G. II, ch. 14; M. O. C. L. 327, unrepealed; APPENDIX to the Mass. Laws, (Edition 1800,) 1020.

For a penalty for taking fish at unlawful places and times.

For that the said C, on &c., at &c., did take divers, viz. three alewives, and also did there, on &c., take divers other alewives, to wit, thirty alewives, in a certain stream which empties itself into Ipswich bay, so called, in said &c., not in the proper place or places, upon the said stream appointed, on &c., last past, for taking alewives and other fish that usually pass up the said stream, to their natural ponds, to cast their spawn, by the person, appointed in said town of &c., to see that the passage-way

for alewives and other fish be kept open; and not on any day appointed by law for taking said alewives and fish ; whereby and by force of a law of this commonwealth, made &c., entitled &c., and by force of another act, made &c., the said C hath forfeited the sum of ten shillings for each offence, amounting in the whole to -; and an action hath accrued, &c.

NOTE. These acts are unrevised. See APPENDIX to Mass. Laws, (1800,) p. 1020, 1022; 15 G. II.

Though the statute, on which the following Declaration is grounded is now repealed, it may not be amiss to insert it, as being short, and the only one in the book, grounded on the statutes of the commonwealth on the subject.

Qui tam for usury.

For that whereas on &c., at &c., it was corruptly and unlawfully agreed between the said T and one W, of &c., that the said T should bargain and loan to the said W, the sum of $200, and should allow and give to the said W, day of payment therefor for the space of one year from that time, and that the said W, at the end of the same term of one year, should corruptly and unlawfully pay him, the said T, more interest therefor, than interest at the rate of $6, for the forbearance or giving day of payment for $100 for one year, viz. that the said W should, at the end of the said term of one year from the day aforesaid, give and corruptly pay the said T $60 for the forbearance and giving day of payment, for the said sum of $200, loaned as aforesaid, for one year next after the day abovementioned. And the plaintiff further avers, that there, on &c. the said W did corruptly and unlawfully pay the said T, and the said T did then and there unlawfully and corruptly receive of the said W, the sum of $60 according to the corrupt agreement aforesaid, between them made for the said forbearance and giving day of payment, for the sum of $200 aforesaid, loaned as aforesaid for the space and term of one year only, as aforesaid; all which was against the statute in such case made and provided. By means whereof the said T hath forfeited and ought to pay the sum of $200, being the value of the money loaned as aforesaid, one moiety thereof to the use of the commonwealth, and the other moiety to the use of the plaintiff, who sues for the same as aforesaid, and whereof the said T hath had due notice; yet he hath never

paid the same though requested, but owes and unjustly detains it.

The two following forms are introduced for the purpose of showing the manner of declaring in Debt, on penal statutes, as practised in England. Declaration qui tam, on the 9th Ann, against defendant for winning of one A. B., at a game called Fives.

Middlesex, to wit. R S, who sues as well for the poor of the parish of &c., in &c., as for himself, in this behalf complains of IM, being in the custody &c. of a plea, that he render to the poor of the said parish, and to the said R, who sues as aforesaid, eight hundred pounds of lawful money &c., which he owes to and unjustly detains from them.

For that one W P, from and after the first day of May, A. D. 1711, that is to say, on &c., to wit, at &c., did at one and the same time, by playing at a certain game called Fives, lose to the said I M a large sum of money, to wit, the sum of £100 of lawful money &c., and did then and there pay the same to the said I M; and the said R S, who sues as aforesaid, in fact saith, that the said W P, who lost the said sum of £100 as aforesaid, did not within the time in that behalf limited and prescribed, that is to say, within three months then next, sue or with effect prosecute, for the said sum of £100, so by him lost and paid as aforesaid; whereby and according to the form of the statute in such case made and provided, an action hath accrued to the said R S, who sues as aforesaid, to sue for and recover of and from the said I M, the said sum of £100, and treble the value thereof, making together the sum of £400, parcel of the said sum of £800 above demanded; and the said Richard, who sues as aforesaid, further saith, that the said I M, after the said 1st day of &c., that is to say, on &c., to wit, at &c., received to the use of the said W P the further sum of £100 of like lawful money, &c., then and there lost by the said W P to the said I M, at one and the same time, by playing at a certain other game called Fives, and then and there paid by the said WP to the said I M. And the said R S, who sues as aforesaid in fact further saith, that the said W P, who so lost the said last mentioned sum of £100 as aforesaid, did not within the time in that behalf limited and prescribed, that is to say, within three months then next, sue or with effect prosecute for the said last mentioned sum of £100, so by him lost and

paid as aforesaid, whereby and according to the form of the statute in such case made and provided, an action hath accrued to the said R S, who sues as aforesaid, to sue for and recover of and from the said I M, the said last mentioned sum of £100, and treble the value thereof, making together the sum of £400, residue of the said sum of £800 above demanded, yet the said I M, although often requested, hath not yet rendered the said sum of £800 above demanded, or any part thereof, either to the poor of the said parish, being the parish where the said several offences were committed, or to the said R S, who sues as aforesaid, but to render the same, or any part thereof, he, the said Richard, hath hitherto wholly refused, and still refuses so to do.

Declaration qui tam, for usury on the statute, 12 Ann, ch. 16, for the forbearing a sum of money paid, at three different times.

And whereas the said T G, after the 29th day of September, A. D. 1714, and before the day of exhibiting the bill of the said I P, who sues as aforesaid, to wit, on &c., at &c., by and upon a certain other corrupt contract and agreement, made by and between the said T G, and the said T E and I M, after the said 29th day of September,. A. D. 1714, aforesaid, to wit, on &c., at &c., did take, accep, and receive from the said T E and I M the sum of £9, 18s. 7d. of lawful money &c., for the said T G's forbearing and giving to the said T E and I M day of payment to the said T G, of the sum of £560, 18s. before then to wit, on the said 16th day of June, A. D. 1784, aforesaid, at L aforesaid, lent by the said T G to the said T E, and I M, from the said time of the said lending thereof, in manner and form following, to wit, the sum of £300, part thereof, until the 12th day of September, A. D. 1780, the sum of £60, 18s., other part thereof, until the 17th day of September, in the year last aforesaid, and the sum of £200, residue thereof, until the 22d day of September, in the year last aforesaid, which said sum of £9, 18s. 7d., so taken, accepted, and received by the said T G, of and from the said T E and I M as last aforesaid, on occasion and for the forbearance last aforesaid, exceeds the rate of £5 for forbearing of £100 for one year, contrary to the form of the statute in such case made and provided; by reason whereof, and by force of the statute in such case made and

provided, the said T G hath forfeited for his said last mentioned offence, the sum of £1682, being the treble value of the said £560, 18s. so lent and foreborne as aforesaid, by reason of which said premises, and by force of the statute in such case made and provided, an action hath accrued, &c. &c.

DETINUE.

(See Com. Dig. Detinue; also Pleader, (2 X.)

THIS action, which is now nearly obsolete, lies to recover specific articles, detained without right. It may be brought by him who has only a special property, as a bailee or by him who has the general property; and even although he has never been in possession; as, by the heir for an heir-loom. But where A bails goods to B, and afterwards gives them to C, C cannot maintain this action against B to recover them. Detinue does not lie against him, who has never been in possession of the goods; as, against an executor, upon a bailment to the testator, if the executor has never come to the possession of the goods. The reason of which is, that, as the judgment in Detinue is, that the plaintiff shall recover the specific articles of the defendant, it would be unreasonable, that such a judgment should be recovered of one, who has never been in possession of them. If the defendant has been once in possession of the goods, though he delivers them over to a third person before action brought, this action may be sustained against him. But it seems, if the defendant finds goods, and afterwards, before demand, loses them by accident, Detinue cannot be sustained against him. In order to maintain this action, in strictness, the property should be susceptible of a description so certain as to distinguish it from other property of a similar kind; and therefore, it will not lie for money generally, because one piece of money is like another. Nor for wheat out of a bag, or the like. But for property which can be identified, so as to be taken in satisfaction of the judgment, this action will lie. As, for money taken in a bag; or, taken in the view of another, though not in a bag; so, for money marked. It is said, that Detinue will not lie, where the defendant commits a trespass in taking the goods; because, by the tortious taking, the property of the plaintiff is devested. But quære of this, for the plaintiff may waive the Trespass; and, if a tortious taking is sufficient to prevent the plaintiff from recovering, because it devests the property; then, if the defendant is lawfully in possession, and afterwards, upon demand made, he refuses to deliver, and claims the goods as his own, the property of the plaintiff would, in like manner, be devested, and consequently he could not then maintain this action. But, in such case, the plaintiff can maintain no action, until after demand made, and then Detinue is a proper form of action; and, where the recovery of the specific article, and not damages, is the object of the suit, is almost the only action that affords this peculiar remedy. For the action of Replevin was originally intended to afford redress in cases of an unlawful taking only; and even now the law does not seem entirely