"find the amends fo tendered to have been fufficient; then "they fhall give a verdict for the defendant." It likewife enacts, "That no action fhall be brought against any con

1 Bl. R. 284.5.5.

ftable or other officer, or any other perfon acting by his "order, for any thing done in obedience to a Juftice's war"rant, until demand made of the perufal and copy of fuch "warrant, and the fame has been refused for the space of "fix days; and in cafe the warrant be fhewed and a copy "taken, and afterwards an action be brought against the "conftable, with making the Juftice a defendant, the jury "fhall, on producing the warrant, find a verdict for the defendant, notwithstanding any defect of jurisdiction in the "Juftice; and if such action be brought jointly against the Juftice and him, upon producing the warrant, the jury "fhall find for him; and if they find against the Justice, the plaintiff shall recover the cofts he is to pay to fuch defend"ant against the Juftice, with a provifo,that if the Judge cer “tify that the injury was wilfully and maliciously com"mitted, the plaintiff fhall be entitled to double cofis: and a provifo likewife, that fuch action fhall be commenced "within fix calendar months after the act committed."

66

66

The above A&t extends only to actions of tort. The officer muft prove that he acted in obedience to the warrant, and where the Juftice cannot be liable, the officer is not within the protection of the act.

If a man be imprisoned on a Juftice's warrant on the first day of January, and kept in prifon till the first day of February, he will be in time if he brings his action within fix months after the first of February; for the whole imprifonment is one entire trespass. The Juftice having pleaded tender of amends, the plaintiff obtained a rule for the defendant to bring the money into Court for the plaintiff to take the fame, upon difcontinuing his action.

An overfeer of the poor who diftrains for a poor's-rate under a Juftice's warrant, is an officer with the protection

of the Act.

No action of debt will lie for a poors-rate.

Whether the reprefentative of a party affeffed to the poors-rate be liable to a diftrefs for the rate, feems doubtful, though the rate, being in refpect of the occupation,

the

the weight of argument feems to be in favour of his liability, notwithstanding the party who has made himself liable to a diftrefs is termed an "offender;" for a bankrupt, though in early ftatutes he was confidered as a criminal, has long fince ceafed to be fo regarded. It seems clear that the representative ought to have a notice before his teftator's goods be diftrained upon; in order that he may have the same means of exonerating them, as his teftator would have had.

An individual may be subject to the repair of the aisle, MSS. Eaft. T. 40 G. 3. or any other part of a church by prescription; fo com. femb. of the whole church, fo that the parishioners may not be rateable, and fo of a corporation. If therefore certain funds, vested in a corporation who have always been accuftomed to the repair of the church, prove inadequate to that purpose, the inhabitants are not com. femb. liable to a rate, but the funds must be applied as far as they will go, and the aid of Parliament he resorted to for relief in respect to the fum wanted; in which cafe Parliament would pro- Cro. Eliz. 659bably create a rate on the parishioners, if any, and if there

were none, would grant a certain fum.

An individual may have a prefcriptive right to a seat, Cro. Jac. 366. &c. in a church which might be in refpect to his house,

and its inhabitants, even though it be fituated in another parish; and not in respect to his lands, and the sheep and horfes thereon but the right to repair a part or the whole of the church may well be in respect of lands.

Of common right, that is, by the antient canon and civil 12 Mod. 83.

law, the parfon ought to have repaired the whole church;

and it is by the cuftom of England only that the parish repairs the body.

ADDENDA.

ADDEND A.

ΤΗ

HE furrender by an infant leffee deed is void; but Infant. furrender in law by the acceptance of a new leafe Cro. Car. 501. is good, if fuch new lease increase his term or decrease his

rent.

A diftrefs taken for rent, accrued after the expiration of Notice to quit the notice to quit, is a waiver of that notice; for though in 1 H. Bl. R. 311. the mere acceptance of rent, the quo animo is to be left to the jury, (for the acceptance of money is equivocal, it may be in fatisfaction for a trespass, or it may be for rent,) yet a distress is an act not to be qualified, and amounts to a confirmation of the tenancy.

The three month's notice required by fect. 38 of flat. Party Walls. 14 G. 3. c. 78. is only neceffary where the person, who at the 5 T. R. 130. time when it is neceffary to build, &c., is liable to pay,

cannot agree with the owner of the adjoining houfe.

To trefpafs for breaking and entering, &c. and pulling Fixtures. down and taking away certain buildings, &c. the defend- 1 East's R. 88. ant, as to the breaking and entering, fuffered judgment by default, and pleaded not guilty as to the refl. . It was held, that fuch plea was fuftained by fhewing that the building taken away, which was of wood, was erected by him as tenant of the premiffes on a foundation of brick for the purpose of carrying on his trade, and that he ftill continued in poffeffion of the premiffes at the time when, &c. though the term was then expired. Lord Kenyon, C. J. obferved, That the old cafes upon this subject leant to confider as realty whatever was annexed to the freehold by the occupier; but in modern times the leaning has always been the other way in favour of the tenant, in fupport of

the

Holding over. 5 Mod. 384. Partition.

12 Mod, 202.

the interests of trade, which is become the pillar of the ftate. What tenant will lay out his money in coftly im provement of the land, if he must leave every thing behind him which can be faid to be annexed to it? Shall it be faid, that the great gardeners and nurserymen in the neigh bourhood of this metropolis, who expend thousands of pounds in the erection of green-houses and hot-houses, &c. are obliged to leave all these things upon the premisses, when it is notorious that they are even permitted to remove trees, or fuch as are likely to become fuch, by the thoufand, in the necessary course of their trade? If it were otherwife, the very object of their holding would be defeated. This is a description of property divided from the realty; and fome of the cafes have even gone further in favour of the executor of tenant for life againft the remainder-man, between whom the rule has been holden ftri&ter; for it has been determined that the executor of tenant for life was en. titled to take away the fire-engine of a colliery. The cafe of Fitzherbert v. Shaw (1 H. Bl. R. 258. vide ante, p. 206.) turned upon the conflruction of an agreement that fuch things fhould be left on the premiffes, and decided nothing against the general principle. Here the defendant did no more than he had a right to do: he was in fact still in poffeffion of the premiffes at the time the things were taken away, and therefore there is no pretence to say that he had abandoned them.

Leffee holding over is not a trefpaffer till entry. See 4 G. 2. c. 28. ante p. 329.

In cafe partition be made, returned, and filed, the te nants before divifion are to remain tenants, under the same conditions, and the landlords, &c. are to make good to their tenants the faid parts as before partition made. Stat. 8. & 9. W. 3. c. 31. S. 4.

In cafe of partition, if rent be affigned for owelty, [equality] of partition, if there be three parceners and rent affigned to two, if it were a grant they would be joint-tenants, and the rent would furvive: whereas it being but an appoint ment, if either of them die, the rent fhall go to the heir of the deceased, and not furvive.

APPENDIX.