Bourscough v. Afton, per Dolbin J. 1693. Inft. 656. Stockwell and Wit and Bucks, Cr. E. 475. 2 Inft. 648,649. have never paid tithe, though it be proved never to have been in tenants hands, yet the general presumption of a total difcharge fhall prevail. In debt upon the ftatute 2 E. 6. the defendant pleaded not guilty, and infifted on the provifo of barren lands; the cafe was, he ploughed and denfhired an ancient warren and sheepwalk, in which were fome furzes, and the first crop upon 107 acres was of the value of 240%. and upon this, without more evidence, the judge thought it fufficient to fhew the land was not fuapte naturâ barren, but profitable land. So if a wood be stubbed and grubbed, and made fit for the plough and employed thereunto, yet it fhall pay tithe presently, for wood ground is terra fertilis et fecunda. Lord Hardwicke held fuch land only within the clause of the ftatute, relating to barren land, as over and above the neceffary expence of inclofing and clearing, required alfo expence in manuring, before they could be made proper for agriculture, and therefore decreed tithe upon its being proved, that the land bore better corn than the arable land in the parish, without any extraordinary expence in manure, &c. and that it had paid tithe of milk, wood, &c. before. Note; in the fame caufe it appearing that a modus of 131. was paid for the tithe of Grange farm, to which there was common appurtenant in the land inclofed, a parcel of which was allotted by the act for inclofing to the farm, the chancellor held the modus extended to fuch inclofed land. If one do gain land from the sea and plow it, he shall pay tithe, for the land is not fuapte natura barren. So of any other land covered with water. This ftatute extends only to predial tithe, i. e. ex fructibus prædiorum ut blada, fænum, &c. feu ex fructibus arborum, ut pema, pyra, &c. but tithe of cheese, milk, calves, lambs, &c. are not predial but mixed; and therefore in an action brought for not fetting out tithe of cheese, milk, &c. after verdict for the plaintiff, judgment was arrested. CHAP THE CHAPTER III. Of Actions upon 5 Eliz. HE 5 Eliz. c. 4. enacts, That no perfon fhall exercife any trade who has not ferved as an apprentice for 7 years, under the penalty of 2 1. per month, to be recovered by whoever will fue for the fame, None but what were trades at the time of making this fta- Salk. 611: tute are within it, therefore it ought to be averred in the declaration (or indi&ment) that it was a trade at the time of making the act, and it is a good exception in arreft of judgment, that it is not, fo averred; unless it be a trade within the very words of the act, and then no fuch averment is neceffary. And note; it must be averred to be a trade ufed within the Queen v. Rorealm (or kingdom) of England or IVales at the time of mak ing the act. Mono, Rex b.nton, Tr. 13 An. Only fuch trades are within the equity of the act as require Salk. 611. fkill; but whether it were a trade or not at the time of making the itatute, or whether any fkill be requifite to the exercise of it, is matter of fact proper for the determination of the jury. It has been objected, that the ufing a trade in a country vil- Mod. 26. lage is not within the flatute, and in the cafe of Rex v. Langley H. 6 G. 2. Mr. J. Page faid he had often known indictments quashed upon fuch exception: However, I do not apprehend it would now be allowed for in fuch cafe at the fittings at Westminfer it was mentioned, but Lord Ch. J. Lee made flight of the objection. On motion to quash an information against the defendant for exercifing the trade of a baker without having ferved an apprenticeship at the parish of S. in Kent. The first objection was, that it did not appear that the offence was committed in the city, borough, or market town. Secondly, that it did not, appear but that the defendant exercifed this trade when the act was made. But the court held that neither the enacting part of the ftatute, nor the preamble, gave any foundation for the first objection, and that the offence was clearly well laid; though they faid, if it came out in evilence that he followed the business only in a fmall village, it had been the common practice O 3 8 C. 129. 11 Co. 84. Ball, who, &c. 2. Cobus, Tr. 30 & 31 G. 2. B. R. Salk. 67. Peaks and miniter, Salk. MSS. Reg v. Drif. field, 18 G. 2. per cur'. practice to find for the defendant. As to the fecond objection, the court faid, it must be prefamed at this length of time, tho' the objection would have held whilst the law was recent. It has been holden that ferving feven years as an apprentice. beyond fea, without being bound, is fufficient, and therefore an indictment was quashed, because it only faid he had not served as an apprentice infra regnum Angliæ aut Walliam. In an action qui tam for exercifing-a trade, the question arose What should be a fervice? On which Holt Ch. J. cited a cafe between Hopkins and Young in B. R. on a special verdict, where it was adjudged, that if a perfon ferving seven years in the exercife of his trade to any perfon exercising that trade, though that perfon have no right to use that trade, yet being employed in it feven years, that shall be a good service though he were not an apprentice; alfo he faid he had holden that if a woman marry a tradefman, and be employed therein seven years, and then the husband die, the may ufe that trade after her hufband's death; and alfo if the marry a fecond husband, she may continue to exercife that trade, and if fhe die her husband may continue to exercife it, provided he were employed in the exercife of it seven years in his wife's life-time; he said he had mentioned all thefe opinions of his to the reft of the judges, who all concurred. The foregoing cafe fhews that the conftruction put upon this ftatute has been a very liberal one in favour of defendants; however, there has been no cafe which has been determined to be within the act, unless there have been in fome manner a fervice for seven years; therefore one who is a partner to a perfon qualified will not be within the act, unless he have ferved feven years. But if the defendant can in any manner prove the following of the trade for seven years, it will be fufficient without any binding (and he fhall be fuffered to make it out Raym. 1179. by months and weeks); yet the word apprentice is the very material word of the ftatute, and an indictment without it would be ill. Wallen v.Houlton, 1759. Tr. 9 G. 2. It has been holden to be fufficient if the defendant have followed the trade feven years as a mafter, without any profecu tion against him with effect. A perfon who follows a trade as a journeyman is not fubject to the penalties of this ftatute, though he has not ferved an apprenticeship. On On a special verdict the cafe was, The defendant was a Salk. 619. Turkey merchant, and exported woollen manufacture into Turkey; he employed clothiers that had ferved apprenticeships to work the cloth in his own houfe at his own charge, and with his own materials; and the court held that the defendant was the trader in this cafe, because he employed the rest who were but as fervants; they held likewife that this was trading within the ftatute, for whether the utterance be within the realm, or in Turkey, is not material. But where a special verdict found that the defendant was a money partner in the brewing trade with Cox, who was qualified; but that by agreement he was not to interfere in the trade, but that Cox had an allowance for that purpose, the court held it was not within the meaning of the ftatute. Note; Freemen and their wives cannot be witnefles, where part of the penalty goes to the city or town corporate where the offence is committed. Though the plaintiff in this action be not entitled to cofts if he recover, yet he must pay them if the verdict be found against him. Raynard v. Rex v. Sey mour, M. 6 G.2. per Raym G. Hall. Jeynes v. Stevenon. E. 10 G. 2. C. B. СНАРТER IV. General Rules concerning Actions on penal Statutes. Y 31 El. c. 5. it is enacted, That all actions, &c. brought made, whereby the forfeiture is limited to the king, fhall be brought within two years: And all actions upon any penal ftatute, the benefit whereof is limited to the king and to the profecutor, fhall be brought within one year. And in default of fuch purfuit, then the fame to be brought for the king at any time within two years after that year ended, And if any fuit upon any penal fatute made or to be made, cxcept the ftatute of tillage, fhall be brought after the time in that behalf before limited, the fame fhall be void and of none effect. O 4 Upon 4 Mod. 144. I Show. 353. Noy 71. Carth. 232. Ld. Raym. 78. Lookup who, &c. v. Sir T. Frederick. Mic. 6 G. 3. Carth. 232. Morris and Hick's cafe, Salk. 372. Upon this ftatute it has been holden, that if any offence prohibited by any penal fatute be alfo an offence at common law, the profecution of it as an offence at common law is not reftrained by this act. 2. That the defendant may take advantage of this ftatute on the general iffue, and need not plead it. 3. That the party grieved is not within this ftatute, but fue as before; but quære, where the suit is first given tɔ the party grieved, and then to the common informer? may On a cafe reserved it appeared that the action of debt was brought on 9 An. c. 14. by a common informer against Sir T. F. for winning 5251. of G. L. at cards. The money was loft and paid 11 March 1757, and the original not fued out till Mic. 1762. The court of C. B. held it a cafe within 31 El. though the action given in the first inftance to the party grieved, and afterward to the common informer for himtelf and the poor of the parifh: for fuch action would have been within the 7 H. 8. and the 31 El. was made to narrow the time given by that statute, and therefore could never mean to leave any actions unre trained in time; the latter part of the claufe must therefore be conftrued to extend to them. It has been determined that fuing out a latitat within the year, is a fufficient commencement of the fuit to fave the limitation of time. But if the writ were not fued out till after the year, though by relation it would be within the time, the plaintiff ought to be nonfuited. By 21 Jac. I. c. 4. All offences against penal statutes, for which any common informer may ground an action, &c. before juftices of excife, &c. (except offences concerning recufancy or maintenance of the king's cuftoms, or transporting gold and filver, ammunition or wool, &c.) fhall be commenced, fued, tried, recovered and determined by action, &c. before the juftices of affize, &c. or before juftices of the county, &c. and the like procefs in every popular action, &c. fhall be as in actions of trespass vi et armis at common law, and in all fuits on penal ftatutes the offence fhall be laid in the proper county; and if on the general iffue the offence be not proved in the fame county in which it is laid, the defendant shall be found not guilty. In the conftruction of this act it has been holden, that it does not extend to any offence created fince that ftatute, but that where a fubfequent statute gives an action of debt or other re medy |