act was only directory in that respect.-Lake v. Croydon Hundred, H. 1774. The oath may be taken before a justice of the county, though not in the county at the time of administering it, for he acts only as a ministerial officer, and therefore an action would lie against him if he refused to take the examination.-Helier v. Benhurst Hundred, E. 1631. W. Jo. 239. Cro. Car. 211. Green v. Buckland Hundred, 1 Leon. 323. It is sufficient for the plaintiff to prove that he who took the affidavit, acts as a justice of the peace, and it shall be read upon proof that it was delivered by his clerk to the person producing it, without proving the justice's hand.-Per Parker, C. J. at Hertford, 1722. It is not necessary for the justice to take the examination in writing, but if he appear at the trial, and depose the substance of the usual affidavit, it is sufficient.-Graham v. Becontree Hundred, per Wythens, J. Essex, 1683. (a) But if the justice have taken the substance of the usual affidavit in writing, and that is produced in evidence, he shall not be permitted to give evidence at the trial of any thing else the plaintiff said on his examination, viz. any description of the robbers or robbery different from what he shall give on the trial.-Kemp v. Stafford Hundred, T. 19 Geo. II. C. B. By 8 Geo. II. c. 16. The party robbed must, within 20 days after the robbery committed, insert an advertisement in the Gazette, describing the felons, the time and place of the robbery, together with the goods and effects taken. Chandler was robbed (inter al') of 15 bank bills, he knew the value of each bill, and the dates and numbers of nine, but not knowing the dates and numbers of the other six, in the advertisement he only inserted the value, and not the dates or numbers of any; upon this a case being reserved for the opinion of the court of C. B. they were equally divided upon the question, whether he ought to recover for what was well described, viz. his watch, money, and the six bills, of which the dates and numbers were not known, and thereupon the postea could not be delivered out; Willes, C. J. and Burnet, J. for the defendant, Abney and Burch, J. for the plaintiff.-Chandler v. Sunning Hundred, Berks, 1748. (a) Neither is it necessary that the declaration should set forth the oath to be taken before a justice of the hundred. Dowly v. Odiam Hundred, 2 Salk. 614. This case being attended with many suspicious circumstances, and for so large a sum of money, occasioned the act of 22 Geo. II. c. 24, whereby no person shall recover against the hundred in any action on [*187 ] any of the statutes of Hue and Cry more than £200, unless at the time of the robbery there be two present at least to attest the truth of his or their being so robbed. (a) By the same act of the 8 Geo. II. the party must, before any action commenced, enter into a bond in the manner therein mentioned, to the high constable of the hundred, for the payment of costs, &c. By the 27 Eliz. c. 13, the action must be commenced within a year after the robbery committed, for which reason the plaintiff must produce a copy of the original, to shew the action commenced within the time, ast also that the oath of the robbery was within 20 days before the teste. (b) (a) This case, on the statutes of Hue and Cry, was reserved, because the whole sum, of which the plaintiff was robbed, was not mentioned in the Gazette, and most materially because it appeared on the trial, that one of the robbers had red eyebrows, which, not being noticed in the advertisement, was held a defective description, and therefore defendants had judgment. Whitworth v. Grimshoe Hundred, 2 Wils. 109. (b) And the day on which the robbery was committed, is to be included within the year. Vide Rex v. Adderley, 2 Dougl. 449. (465.) S. P. and Bellasis v. Hester, 1 Ld. Raym. 280, therein cited, to S. P. See also Norris v. Gautris Hundred, 2 Rol. Abr. 520, pl. 8. 1 Brownl. 156, which was an action against the hundred on this statute, and the robbery was laid and proved to have been committed on the 9th October, 13 Jac. I. and the writ was tested on 9th October, 14 Jac. I. Held, that under the words of the statute, 27 Eliz. the day when the robbery was committed, should be included within the year, and that the action was brought too late, whereupon judgment was arrested after verdict. Vide etiam S. C. more fully reported in Hob. 139, where it is said, that the plaintiff could never have his judgment; but in the report of S.C. Furthermore, in the case of Castle By By the same act, if any one of the offenders be taken by pursuit, the hundred shall not be liable, and by 8 Geo. II. it is sufficient if he be apprehended within 40 days after notice in the Gazette. But this must be pleaded, and not given in evidence on the general issue. If a servant be robbed, in the absence of his master, of his master's money, either the master or the servant may bring the action, but thẻ servant must take the oath: (Combs v. Bradley Hundred, E. 5 & 6 W. & M. Salk. 613.) but if he be robbed in the presence of his master, of his master's money, the master must bring the action, and his sath alone will be sufficient.―Jones v. Bromley Hundred, and Bird v. Ossulston Hundred, cited in Ashcomb v. Elthorn Hundred, Carth. 147. (a) The party robbed may be a witness ex necessitute, and by 8 Geo. II. c. 16. s. 15, a hundredor may likewise be a witness for the hundred. If the master bring an action on the robbery of his servant, he may be a witness to prove the delivery of the money to him.-Bennet v. Hertford Hundred, M. 1650. 2 Rol. Abr. 686. The plaintiff need not prove the robbery in the place or in the parish alledged in the declaration, if it be proved within the same hundred. (Per Holt, 5 Aun. at Maidstone.) So hue and cry need not be proved by the plaintiff though alledged in his declaration, for it is the part of the hundred to levy it.-Bucknall's Ca. T. 29 Eliz. Owen 7. By 27 Eliz. c. 13. The inhabitants of every hundred, wherein negligence of fresh suit after hue and cry shall happen to be, shall answer the one half of the damages recovered against the hundred, &c. to be recovered by action of debt, &c. in the name of the clerk of the peace of the county, for the use of the inhabitants of the hundred in which, &c. (b) (a) In an action on this statute, for the robbing of a servant, the declaration may alledge that the thieves robbed the servant, though it state that the master was in company. Willan v. Stancliffe Hundred, 2 Raym. 904. (6) And as to who shall be chargeable to the hundred, on this act, vide Leigh v. Chapman, 2 Saund. 423. As to the evidence necessary to support this action, it may, in a great degree, be gathered from the cases in the text; but as that material part of this subject is not distinctiy treated, the editor has 'considered, that it would tend more to the convenience of the reader to reduce it to a methodical form: first, then it was held in Ashpole's Case, cited in Sendell's Case, 7 Co. 6, that the plaintiff must prove he was robbed in the day-time, i. e. when there was day-light enough to see a man's face; but the robbery need not be in a highway. Couper v. Basingstoke Hundred, 2 Saik. 615. It must also be committed on a working-day, or on going to or from church, if on a Sunday. Teshmaker v. Edmonton Hundred, Stra. 406. Though by the stat. 27 Eliz. c. 13. s. 11, the plaintiff must prove, that so soon as he could, after the robbery, he gave notice to some inha bitant of some town, village, or hamlet, near the place of the robbery, yet it need not be the nearest. Odander v. Grodby Hundred, Noy. 52; nor in the same hundred. Tutter v. Dracon Inhabitants, Cro. Car. 41. So by statute, 8 Geo. II. c. 16. s. 1, plaintiff must prove, that with all convenient speed, after the robbery, he also gave notice of it to one of the constables of the hundred, or to some constable, &c. of some town, parish, &c. near the place of robbery, or that he left notice in writing at the house of such constable, &c. he, describing, as far as he could, the felon or felons, and the time and place of the robbery. And he is not obliged to go to the nearest constable. Ball v. Wymersley Hundred, Stra. 1170. And by the same statute, plaintiff must prove, that within 20 days, next after, &c. he caused a notice to be given in the London Gazette, describing, as far as he could, the felon, &c. and the time and place, &c. together with the goods and effects stolen: to do which, he must produce the Gazette, and the notice therein, which should contain every material description of the robber. Whitworth v. Grimshtve Hundred, 2 Vils. 105, 109. Chandler v. Sunning Hundred, Berks, 1748. As to what notice is sufficient to ground an action, vide Shrewsbury v. Ashton Hundred, 4 Leon. 18. Compton's Ca. Noy. 155. March 10. Hall v. Skarrock Hundred, 2 Sid. 45. So by statute, 27 Eliz. c. 13. s. 11, it is required, that the party robbed shall, within 20 days, &c. be examined on oath before some justice, &c. near the same hundred; and if upon such examination, he confesses he knows the robber or robbers, he shall enter into a recognizance to prosecute him or them. prove this, plaintiff must produce the affidavit he made before the justice, though he need not prove the signature of the justice, nor that he was a justice, but only that he acted as such. Per Parker, C. J. at To Hertford, 1722. And thre magistrateg if he be so, may take the oath out of the county. Helier v. Benhurst Hundred, Cro. Car. 211. W. Jo. 259. But if no examination be taken in writing, the magistrate may give verbal evidence at the trial of the substance of the usual affidavit. Graham v. Becontree IIundred, per Wythens, J. Essex, 1683. And the examination may be taken by a magistrate 20 miles distant from the place of robbery, though many others live nearer. Lake v. Croydon Hundred, H. 1774. But the affidavit must be made by the person actually robbed, whether he be master or servant. Green's Ca. Cro. Eliz. 142. And if two servants, or a servant and a stranger, to whom the money was entrusted, are robbed together, both should take the oath, so that the master may maintain his action; for if one only be examined, the master can only recover so much as was taken from him. Ascomb v. Spelholm Hundred, 2 Salk. 613. Aishcome v. Spelholme Hundred, 1 Show. 94. 241; or Ashcomb v. Elthorn Hundred, Carth. 145. If a servant, however, be robbed of his master's money, in his absence, either the master or servant may bring the action, though the servant must make the oath. Combs v. Bradley Hundred, Salk.613. But if he should be robbed of his master's moncy, in his presence, the master alone may make the oath, and bring the action. Jones v. Brom. ley Hundred, infra. And a robbery of the servant of his master's goods in his presence, is a robbery of the master. IWright's Ca. Sty. 156. Crosthwayt v. Lowdon Hundred, ibid. 319. And, in order to shew that the oath was taken within 20 days before theaction brought, the original writ must be produced. Jones v. Bromley IIundred, cited in Carth. 147. Finally, the statute 8 Geo. II. c. 16, requires proof, that before the action brought, the plaintiff went before either the chief clerk, or secou dary, the filazer of the county, where the robbery was, the clerk of the pleas wherein the action is commenced, CHAPTER II. OF ACTIONS UPON THE STATUTE OF 2 & 3 EDW. VI. c. 13, FOR NOT SETTING OUT OF TITHE. THE statute of the 2 & 3 Ed. VI. c. 13, directs the tithe to be fairly set out under the pain of forfeiture of treble value, without mentioning to whom; but that has been always construed to be the proprietor of the tithe, as he is the party grieved.—2 Inst. 650. (a) menced, or their respective deputies, or before the sheriff of the county wherein the robbery was, and entered into a bond for £100 to the high constable of the hundred, with two sureties, approved by those officers for payment of the costs in case of failure in the action, which bond must be produced and proved by a subscribing witness. Peake's Erid.282. Secondly, as to the competency of a witness in this action, the general rules of law have been obliged to give way to necessity, as in Bennet v. Hertford Hund. 2 Rol. Abr. 686, where the master having brought an action on the robbery of his servant, he was allowed to prove the delivery of the money to him, and on the authority of that case, Chambre, J. in Porter v. Ragland Hund. Pcake Evid. 150, (n.) allowed the plaintiff to prove the quantity of corn which was on board his own barge at the time of a robbery by a mob, which robbery was first proved by the plaintiff's servant. So by stat. 8 Geo. II. c. 16. s. 15, the party robbed may be a witness ex necessitate, and so may a hundredor be a witness for the hundred. But, no action can be brought against the hundred, where the sum lost exceeds £200, unless the truth of the robbery be attested at least by two persons present. Vide Chandler v. Sunning Hund. Berks, 1748, and the stat. of 22 Geo. II. c. 24, which was passed in consequence of the peculiar circumstances of that case. In (a) An action on this statute is the proper remedy for predial tithes, and it is for predial tithes only that it lies in cases where there is no existing contract, and the farmer has neglected to set out his tithes, or has made a colorable severance, and carried them away, but where the defendant has taken tithes under a composition and agreement with the plaintiff, assumpsit on the contract is the proper remedy, to support which the plaintiff need only prove defendant's occupation, his contract and the retaining his tithe in pursuance thereof. This action lies also at the suit of the rector, or by one or more farmers of the rectory. Day v. Peckwell, Mo. 915. Kent v. Penkevon, Cro. Jac. 70; if, therefore, the rector be entitled to two parts of the tithe, and the vicar to a third, and the parson and vicar severally demise their shares to a third person, such lessee may bring this action for all the tithes. As the right to tithes accrues immediately on the severance, this action must be brought by the person entitled to them at that time, therefore a lessee after severance cannot sue even though the tithes were not carried away when the lease was granted. Wyburd v. Tuck, 1 Bos. & Pull. 458. Neither can any but the party aggrieved maintain this action. Johns v. Carne, Mo. 911. Cro. Eliz. 621. Where A. had a lease of tithes in right of his lease as executrix to her |