In replevin, the avowant justified under a distress for rent; the plaintiff at Nisi Prius insisted, that there was more due to him than the rent amounted to, and Denison, J. refused the evidence, and upon motion for a new trial, the court held that 2 Geo. II. did not extend to the case of a distress, for that is not an action, but a remedy without suit; they likewise declared, that it did not extend to detinue, and the like actions of wrong.-Absolom v. Knight, E. 16 Geo. II. C. B. In covenant upon an indenture for non-payment of rent, the defendant pleaded non est factum, and gave a notice of set-off, Mr. J. Denton, at the assizes, was of opinion he could not upon this issue; but upon a motion for a new trial, the court held the evidence ought to have been received, for the general issue mentioned in the act must be understood [182] to be any general issue, and accordingly ordered a new trial.-Gower & Ux'. Hunt, 1 Barnes, 204. If a man accept a bond for a legacy, it is an extinguishment of the legacy; so if a man accept an obligation for a debt due by simple contract; otherwise for a debt due by specialty; but if a stranger give a bond for a debt due by simple contract from another, it will be no extinguishment. Higgin's Ca. 3 Jac. I. 6 Co. 44. Hooper's Ca. T. 29 Eliz. 2 Leon. 110. So if a man, after an act of bankruptcy committed, give a bond for a simple contract debt, it will not so far extinguish the simple contract as to deprive the creditor of petitioning for a commission.-Ambrose v, Clendon, E. 9 Geo. II. Stra. 1042. (a) If an infant become indebted for necessaries, and give a bond in a penalty for the money, it will not extinguish the simple contract debt, for the bond is void, aliter if it be a single obligation in the very sum.→ Ayliff v. Archdale, H. 45 Eliz. Cro. Eliz. 920. (b) The (a) Where a man by deed assigns certain premises as a security for a simple contract debt, which deed was afterwards set aside under a commission of bankrupt, on the ground of a prior act of bankruptcy, it was held not so far to extinguish the original debt as to prevent the creditor's proof of it under the com. mission. Gray v. Fowler, 1 H. Bla. 462. (b) As to a single bill, vide Russell v. Lee, 1 Lev. S6. Roles v. Roleswell, 5 T. R. 538. Walcot v. Goulding, 8 T. R. 126. It seems doubtful, however, whether such an obliga- The plaintiff gave a note of hand for rent arrear, and took a receipt for it when paid, the defendant afterwards distrained for the rent, the plaintiff brought trespass; and it was holden, that notwithstanding this note, the defendant might distrain, for it is no alteration of the debt till payment." (Harris v. Shipway, at Monmouth, 1744, per Abney, J. Exer v. Lady Clifton, C. B. T. 1735. S. P.) But if A. indorse a note to B. for a precedent debt, and B. give a receipt for it as money when paid, yet if he neglect to apply to the drawer in time, and by his laches the note is lost, it will extinguish the precedent debt, and in an action he would be nonsuited.-Smith v. Wilson, E. 1738. Andr. 190. If a landlord accept a bond for the rent, this does not extinguish it, for the rent is higher, and the accepting of a security of an equal degree is no extinguishment of a debt, as a statute-staple for a bond. (3 Danv. Abr. 507, A. (1)) But a judgment obtained upon a bond is an extinguishment of it.-Higgins' Ca. 3 Jac. I. 6 Co. 45. Salk. 279, and Tapper v. Davenant, as reported in 3 Keb. 798. (though differently stated ante, p. 155 a n. (c)) it was held that such objections are only voidable. In Fisher v. Mowbray, 8 East, 330, however, it was held that an infaut can on no account bind himself in a bond with a penalty, and payable with interest. ᏢᎪᎡᎢ PART III. CONTAINING ONE BOOK OF ACTIONS GIVEN BY STATUTE. INTRODUCTION. HAVING in the two former parts of this work treated of such actions as are founded either upon Torts or upon Contract, it is now proper to take notice of such actions as are given by the statute law; and they are of two sorts: I. Such as are given to the party grieved. II. Such as are given to the common informer. It would be endless to mention all the acts of parliament that give actions; I will therefore only set down such as are in most frequent use; taking notice likewise of such general rules as are applicable to all actions upon statutes. CHAPTER I. OF ACTIONS UPON THE STATUTE OF HUE AND CRY. By the statute of Winton, 13 Ed. I. c. 2, the hundred within which any robbery is committed shall be answerable for the same. No robbery will make the hundred liable, but that which is done openly and with force and violence; therefore if a carrier's son or servant conspire to rob him, the hundred is not answerable.-Mathew v. Godalming Hundred, M. 1654. Sty. 427. By the same statute, if the robbery be done within the division of two hundreds, both shall be answerable.-Deane's Ca. M. 10 Car. I. Hut. 125. If robbers assault a person in one hundred, and he flies into another, where he is pursued and robbed, the last hundred is liable.-Cowper v. Basingstoke Hundred, H. 1702. 2 Salk. 615. Se [184] [185] So if a person be carried out of the highway in the hundred of A. and robbed in a coppice in the highway in the hundred of B. it will be sufficient to charge the hundred of B.-Cowper v. Basingstoke Hundred, H. 1702. 2 Raym. 826. But if one be taken in the hundred of A. and carried into the hundred of B. into a mansion-house and robbed; or taken in the day-time in A. and carried to B. and there robbed in the night, it is not within the statute; for though there be no occasion to aver in the declaration that it was done in the highway, any more than that it was done in the day, yet it must be given in evidence on the trial, else the plaintiff will be nonsuited.-Young v. Tolscomb & Mudbury Inhabitants, M. 1 W. IIL Carth. 71. Proving that the robbery was committed in a private way, will be sufficient to charge the hundred.-Cowper v. Basingstoke Hundred, sup. 12 Mod. 160. S. C. A robbery upon the Lord's day, by 29 Car. II. c. 7, will not charge the hundred. But that statute. only extends to the case of travelling, therefore where the plaintiff was robbed in going to church on a Sunday he recovered. (Teshmaker v. Hundred of Edmonton, M. 7 Geo. I. Stra, 406.) And upon any other day, if there be as much light as a man's countenance might be discerned by, though before sun-rise or after sun-set, the hundred shall be liable. (Sendell's Ca. T. 1585. 7 Co. 6.) So if robbers oblige the waggoner to drive his waggon from the highway by day, but do not take any thing till night.May v. Morley Hundred, M. 1605. Cro. Jaç. 106. Cowper v. Basingstoke Hundred, sup. By 27 Eliz. c. 13. No person shall have an action against the hundred, unless he shall, with as much convenient speed as may be, give notice to some of the inhabitants of some town, village, or hamlet, near to the place where the robbery was committed. By 8 Geo. II, c. 16. No, person shall have an action against the hundred, unless beside the notice required by 27 Eliz. c. 13, he shall, with as much convenient speed as may be, give notice to one of the coustables of the hundred, or to some constable, borsholder, headborough, or tything-mau of some town, parish, village, hamlet, or tything, near unto the place where, &c. or shall leave notice in writing of such robbery at the dwelling-house of such constable, &c. describing in such notice to be given or left, so far as the nature and circumstances of the case will admit, the felons, and the time and place, together with the goods and effects whereof he was robbed. B. was B. was robbed a little after six in the morning, his stirrups cut, his bridle and saddle thrown into a ditch, his horse turned loose two miles and a half from Northampton. He went there after recovering his horse, &c. and gave notice to the inhabitants and to three men in the way, and then rode three miles farther, and left notice in writing with the high constable of the hundred in which, &c. and all this within two hours of the robbery: and upon a special case stated, had judgment, though it was objected that he had given no notice to the constable at Northampton, which was the person it might have been given to with most convenient speed: but it was answered that it was put in the alternative, and the constable of the hundred was the most proper, and this was done with all reasonable speed: it was said, that perhaps he went to Northampton for advice, for men do not carry the act of parliament in their pocket.-Ball v. Wymersley Hundred, T. 15 Geo. II. Stra. 1170. Notice given to the next village forward in the road is good, though it be in another hundred, and though there were other villages a latere nearer in the same hundred. The word in the act is near, not nearest, and five miles have been reckoned sufficiently near: and it is good though the village is in a different county.-Odander v. Grodley Hundred, Noy. 52. By 27 Eliz. c. 13. The party robbed shall not have any action, except he first, within 20 days before such action be brought, be examined upon path before some justice of the peace of the county where the robbery was committed, inhabiting within the said hundred or near the same, whether he knew the parties that committed the robbery, or any of them; and if upon examination it be confessed that he does know the parties, that then he *shall, before the action commenced, enter into a [ *186] bond before the said justice effectually to prosecute the person so known.-Tutter v. Dracon & Cash Inhabitants, M. 1626. Cro. Car. 41. (a) Though the robbery were 20 miles from the place where the justice lived, and though it were proved that there were many justices lived nearer, yet Abney, J. held it sufficient on a case reserved, saying the (a) If a statute provides that no action shall be brought for a particular cause, until a certain number of days have elapsed from the time when it accrued, and the de claration states merely that the act |