fhall, before the action commenced, enter into a bond before the faid juftice effectually to profecute the perfon fo known. Though the robbery were 20 miles from the place where the juftice lived, and though it were proved that there were many juftices lived nearer, yet Abney J. held it fufficient on a cafe referved, saying the act was only directory in that refpect. Cr. Car. 211 The oath may be taken before a juftice of the county, Jones 239. though not in the county at the time of adminifiring it, for he acts only as a ministerial officer, and therefore an action 1 Leon. 323. would lie against him if he refused to take the examination. It is fufficient for the plaintiff to prove that he who took the affidavit acts as a juftice of the peace, and it fhall be read upon proof that it was delivered by his clerk to the perfon producing it, without proving the juftice's hand. It is not neceflary for the juftice to take the examination in writing, but if he appear at the trial, and depofe the fubftance of the ufual affidavit, it is fufficient. But if the justice have taken the fubftance of the ufual affidavit in writing, and that is produced in evidence, he fhall not be permitted to give evidence at the trial of any thing elfe the plaintiff faid on his examination, viz. any defcription of the robbers or robbery different from what he fhall give on the trial. By 8 G. 2. c. 16. The party robbed muft, within 20 days. after the robbery committed, infert an advertisement in the Gazette, defcribing 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 9, but not knowing the dates and numbers of the other 6, in the advertisement he only inferted the value, and not the dates or numbers of any; upon this a cafe being referved 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 defcribed, viz. his watch, money, and the 6 bills of which the dates and numbers were not known, and thereupon the poftea could not be delivered out; Willes Ch. J. and Burnet, J. for the defendant, Abney and Burch J. for the plaintiff.. This cafe being attended with many fufpicious circumstances, and for fo large a fum of money, occafioned the a&t of 22 G. 2. c. 24. whereby no perfon fhall recover against the hundred Per Parker Ch. J. at Hertford, 1722. Graham v. contree, per Hund. of Be. Wythens J. Kemp. v. Hund. of Stafford, Tr. 19 G. 2. C. B. Chandler Salk. 613. 2 R. A. 686. Owen 70. Per Holt. 5. ftone. in any action on any of the ftatutes of hue and cry more than 2007. unless at the time of the robbery there be two present at least to attest the truth of his or their being fo robbed. By the fame act of the 8 Geo. 2. the party muft, before any action commenced, enter into a bond in the manner therein mentioned to the high conftable of the hundred, for the payment of cofts, &c. By the 27 El. the action must be commenced within a year after the robbery committed, for which reafon the plaintiff must produce a copy of the original, to fhew the action commenced within the time, as alfo that the oath of the robbery was within 20 days before the tefle. By the fame act, if any one of the offenders be taken by purfuit, the hundred fhall not be liable, and by 8 G. 2. it is fufficient 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 iffue. If a fervant be robbed in the absence of his master, of his mafter's money, either the mafter or the fervant may bring the action, but the fervant must take the oath: bu: if he be robbed in the prefence of his mafter, of his master's money, the mafter muft bring the action,, and his oath alone will be fufficient. The party robbed may be a witnefs ex neceffitate, and by 8 G. 2. a hundredor may likewife be a witnefs for the hundred. If the mafter bring an action on the robbery of his fervant, he may be a witnefs to prove the delivery of the money to him. The plaintiff need not prove the robbery in the place or in the parish alledged in the declaration, if it be proved within the fame hundred. 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. By 27 El.c. 13. The inhabitants of every hundred, wherein negligence of fresh fuit after hue and cry shall happen to be, fhall 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. СНАР. CHAPTER II. Of Actions upon the Statute of E. 6, for not fetting out of Tithe. HE ftatute of the 2 & 3 Ed. 6. c. 13. directs the tithe THE to be fairly fet out under the pain of forfeiture of treble value, without mentioning to whom; but that has been al- 2 Inft. 650. ways conftrued to be the proprietor of the tithe, as he is the party grieved. In this action therefore the plaintiff must prove himself en titled to the tithe, the taking away by the defendant, and the value; but as the action is founded on the tort, the plaintiff Cr. J. 437. may declare as firmarius vel proprietarius without fhewing any particular title. The plaintiff declared as a farmer of the rectory of Frihuft, Selwin and and proved himself leflee of one Bellow, who was leffee to the Baldy. dean and chapter to whom the rectory belonged, and produced the leafe from Bellow, but not from the dean and chapter to him; however upon proving that he received tithe of others as farmer, it was holden fufficient by Pemberton Ch. Juft. in Sufex 1682; and at the fame afizes the plaintiff being farmer under Hartridge. the dean and chapter of Canterbury, and proving he had received tithes for fome years as fuch, it was holden fufficient without producing any leafe. So if the plaintiff claim as parfon, if the title be not in queftion, it is fufficient if he prove himself in quiet poffeffion; but if the title be in queftion, he must prove his ordination by the bifhop, his inftitution and induction, fubfcription to the declaration in the act of uniformity in the prefence of the bishop, &c. and his reading the 39 articles within two months, and declaring his affent to them. Gibbs. Debt upon the ftatute against three; upon nil debet pleaded, Carth. 361, the jury found that the defendant Hancock debet 181. but quoad the other defendants nil debent; and upon motion in arreft of judgment, because it was an action of debt founded on a contract which is intire; the court held it was founded on a tort, and therefore one may be found guilty and the other acquitted, as in other actions upon torts; and upon the authority of this cafe cafe the court of K. B. determined the cafe of Hardman v. Ibitacre al' M. 22 G. 2. which was an action of debt against nine for keeping a lurcher contrary to 8 G. 1. c. 19. All pleaded nil debent, and verdict as to fix, quod debent 5 l. and Cro. Eliz. 480. as to the three others nil debent. Only one penalty can be recovered againft all. & Keb. 45° r Lev. 185. 2 Co. 458 Feb. 297. Upon nil debet a lay perfon cannot give a non decimando in evidence, but the king or a spiritual perfon may, without fhewing any caufe why difcharged; for it fhall be intended by lawful means: But where a fpecial verdict found that the abbot of Abington was feifed in fee, and that he and his predeceffors held it difcharged, and granted it to All Souls college, it was holden that the prefeription was perfonal, and determined by the alienation, and that it could not be intended to be a difcharge by a real compofition, it not being pleaded or found by the jury to be fo. And this leads me to take notice of the construction of the ftatute of 31 H. 8. c. 13. as to discharges of payment of tithe. At common law temporal perfons had only two ways to dif charge tithe; the first was by grant of the parfon, patron and ordinary; the other by a prefcription fub modo, but not by an abfolute prefcription. Spiritual perfons had four ways of difcharge. 1. Bull of the pope. 2. Compofition. 3. Prefcription, all which were abfolute. 4. Order, viz. Ciftertians, Templers, and Hofpitallers of Jerusalem, and was limited to fo long as the land remained in their own manurance. Then came 31 H. 8. and enacted that as well the king, as all and every perfon which fhall have any hereditaments which belonged to monafteries or other religious or ecclefiaftical houses, shall retain, keep, and enjoy the fame according to their eftates and titles, difcharged and acquitted of payment of tithes, as freely and in as large and ample manner as the faid late aboots, &c. occupied, poffefled or enjoyed the fame at the days of their diffolution. This claufe hath continued the difcharge by bull, compofition and order, which was before the act, and which elfe would have been diffolved with the fpiritual bodies to which they were annexed. It hath likewife continued the difcharge by prefeription, which though it would otherwile have continued in the king, whe who is perfona mixta, and therefore capable of such a discharge It hath alfo created a new difcharge, and that is unity of But to make this unity a good difcharge within this act, it Hob. 298, muft be a perpetual one, i. e. a tempore cujus, &c. till the diffolution; and though it be perpetual, yet if the abbot, or his farmer, paid tithe before the diffolution, that would destroy the prefcription, becaufe it would prove there was no real difcharge, for an unity by prefcription is not itfelf a perfect difcharge, but from thence the law will prima facie prefume one, though it cannot be found; and therefore if the jury find nothing but a perpetual unity, it is found against the pleader, and therefore in pleading fuch an unity you must add, that ratione inde they held difcharged of payment of tithe time out of mind, for that fixes it to the ftatute; yet the unity and not the conclufion must be traverfed. Ingram and Thackiton in Scac. 1748. From hence it appears, that if the appropriation were made 11 Co. 14. within time of memory, upon the point of unity the ftatute will be of no avail; but in fuch cafe he may alledge the faid branch of the act, and that the abbots, &c. a tempore cujus till the diffolution, held the land difcharged of tithe, and give fuch evidence that he may approve it, which must be a pofteriori. But if the abbey were founded within memory, or the land purchased to the abbey within memory, then he cannot prefcribe; but if the abbey had been time of mind, and an appropriation fince, yet he may prefcribe in a general difcharge; for that may be, though an unity came after. Of the other ways of difcharge continued by this act, it is Hob. 296. only neceffary to say, they must be properly pleaded, for tithe of right belongs to the church, and if you will discharge a just demand, you must fatisfy the court of your discharge. But note, this claufe of difcharge in 31 H. 8. extends only a Co. 47. to fuch religious houfes as came to the king by virtue of that act, or by 32 H. 8. c. 24. and not to fuch which came to him Raym, 225. either by virtue of 27 H. 8. or 1 E. 6. Where the discharge is by order only, it is limited to fo long Ingram and Thackston, as the land is in the occupation of the owners, but if the land |