K. B. 1 P. W. 782. S. P. Ryal & al 20 G. 2. K. B. Abfolem and 16 G. 2. C. B. Gower and Ux. v. Hunt, 1 B. 204. his bankruptcy to Scott, and Scott's hand was proved to the indorsement to the defendant, but no proof was given when it was indorfed, upon which the plaintiff called two witnefles, who gave ftrong evidence to fhew it was after the bankruptcy; however the defendant had a verdict; but a new trial was granted, becaufe fuch indorfee ought not to be in a better condition than the drawee, who would only have come in as a creditor under the commiffion. To an action of indebitatus affumpfit by the affignees of a bankrupt, for goods fold by them to the defendant, he pleaded that Harveft before his bankruptcy, (viz. 21 Apr. 1740.) was indebted to the defendant by bond in 100l. conditioned to pay 50l. which exceeded the 137, mentioned in the declaration; and upon demurrer it was halden, that the statute for fetting off mutual debts does not extend to affignees of bankrupts, and that these can never be confidered as mutual debts, for where there are mutual debts, there must be mutual remedies, which is not the cafe here. But by the 5 Geo. 2. c. 30. f. 28. Where it shall appear to the commiffioners that there has been mutual credit given by the bankrupt, and any other perfon, or mutual debts between the bankrupt and any other perfon, at any time before fuch perfon became bankrupt, the commiffioners, or the affignees of the bankrupt's eftate, fhall ftate the account between them, and one debt may be fet against another; and what fhall appear to be due on the balance, and no more, shall be claimed, or paid, on either fide. In replevin, the avowant juftified under a distress for rent; the plaintiff at Nifi Prius infifted, 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 G. 2. did not extend to the cafe of a diftrefs, for that is not an action, but a remedy without fuit; they likewife declared, that it did not extend to deținue, and the like actions of wrong. In covenant upon an indenture for non-payment of rent, the defendant pleaded non eft factum, and gave a notice of set-off, Mr. J. Denton at the affizes was of opinion he could not upon this iffue; but upon a motion for a new trial, the court held the evidence ought to have been received, for the general issue mentioned mentioned in the act must be understood to be any general iffue, and accordingly ordered a new trial. 2 Leon. 11. If a man accept a bond for a legacy, it is an extinguish- 6 Co. 44 ment of the legacy; fo if a man accept an obligation for a debt due by fimple contract; otherwife for a debt due by fpecialty; but if a ftranger give a bond for a debt due by fimple contract from another, it will be no extinguishment. So if a man after an act of bankruptcy committed, give a Str. 1042. bond for a fimple contract debt, it will not fo far extinguish the fimple contract as to deprive the creditor of petitioning for a commiffion. Cr. El. 920. Co. L. 172. a Shipway, at If an infant become indebted for neceffaries, and give a bond in a penalty for the money, it will not extinguish the fimple contract debt, for the bond is void, aliter if it be a single obligation in the very fum. The plaintiff gave a note of hand for rent arrear, and Harris and took a receipt for it when paid, the defendant afterward diftrained for the rent, the plaintiff brought trefpafs; and it was holden, that notwithstanding this note, the defendant might diftrain, for it is no alteration of the debt till payment. But if A. indorfe 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 loft, it will extinguish the precedent debt, and in an action he would be nonfuited. 1744, per Clifton, Andr. 190. 3 Danv. 507% If a landlord accept a bond for the rent, this does not extinguifh it, for the rent is higher, and the accepting of a fecurity of an equal degree is no extinguishment of a debt, as a ftatute-ftaple for a bond. But a judgment obtained 6 Co. 44. upon a bond is an extinguishment of it. PART PART III. Containing ONE BOOK. Of Actions given by Statute. H INTRODUCTION. AVING in the two former parts of this work treated of fuch 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 ftatute law; and they are of two forts: 1. Such as are given to the party grieved. 2. 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 fet down fuch as are in most frequent ufe; taking notice likewise of such general rules as are applicable to all actions upon ftatutes. СНАР CHAPTER I. Of Actions upon the Statute of Hue and Cry. Y the ftatute of Winton, c. 2. the hundred within which BY any robbery is committed fhall be anfwerable for the fame. No robbery will make the hundred liable, but that which is done openly and with force and violence; therefore if a Stile 427. carrier's fon or fervant confpire to rob him, the hundred is not answerable. By the fame ftatute, if the robbery be done within the di- Hut. 125. vifion of two hundreds, both fhall be answerable. If robbers affault a perfon in one hundred, and he flies 2 Salk. 615. into another, where he is purfued and robbed, the last hun dred is liable. So if a perfon be carried out of the highway in the hundred 2 Raym. 826. 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. But if one be taken in the hundred of A. and carried into the hundred of B. into a manfion-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 Carth. 71. no occafion 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, elfe the plaintiff will be nonfuited. Proving that the robbery was committed in a private way, will be fufficient to charge the hundred. A robbery upon the Lord's Day by 29 Car. 2. c. 7. will not charge the hundred. But that ftatute only extends to the case of travelling, therefore where the plaintiff was robbed in going to church on a Sunday he recovered. And upon any other day if there be as much light as a man's countenance might be difcerned by, though before fun-rife or after fun-fet, the hundred fhall be liable. So if robbers oblige the waggoner to drive his waggon from the highway. by day, but do not take any thing till night. By 27 El. c. 13. No perfon fhall have an action against the hundred, unless he fhall, with as much convenient speed as may be, give notice to fome of the inhabitants of fome town, village or hamlet near to the place where the robbery was committed. Far. 160. Tehmaker. Hund. Edmon ton, M. 7 G. 1. Str. 406. 7 Co. 6. Cr. J. 106, By Ball v. Hund. Noy 52. Cr. Car. 47. By 8 G. 2. c. 16. No person shall have an action against the hundred, unless befide the notice required by 27 El. c. 3. he fhall, with as much convenient fpeed as may be, give notice to one of the conftables of the hundred, or to fome conftable, borfholder, headborough or tything-man of fome town, parish, village, hamlet or tything near unto the place. where, &c. or fhall leave notice in writing of fuch robbery at the dwelling-houfe of fuch conftable, &c. defcribing in fuch notice to be given or left, fo far as the nature and circumftances of the cafe will admit, the felons, and the time and place, together with the goods and effects where of he was robbed. B. was robbed a little after fix in the morning, his ftirrups cut, his bridle and faddle thrown into a ditch, his horse turned loofe, 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 conftable 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 conftable at Northampton, which was the perfon it might have been given to with moft convenient fpeed: but it was anfwered that it was put in the alternative, and the conftable of the hundred was the moft proper, and this was done with all reasonable speed it was faid that perhaps he went to Northampton for advice, for men do not carry the act of parliament in their pocket. Notice given to the next village forward in the road is good, though it be in another hundred, and though there were another village a latere nearer in the fame hundred. The word in the act is near, not neareft, and five miles have been reckoned fufliciently near and it is good though the village is in a different county. By 27 El. c. 13. The party robbed fnall not have any action, except he firft, within 20 days before fuch action. be brought, be examined upon oath before fome juftice of the peace of the county where the robbery was committed, inhabiting within the faid hundred or near the fame, whether he knew the parties that committed the robbery, or any of them; and if upon examination it be confeffed that he does know the parties, that then he fhall, |