Bellasis vers BURBRICHE deny birch v wright t r S C Lutw plead Lutw vol in  case for the rescue of a distress intend for sale the plaintiff need not state  that he give notice of the distress nor if the rend become due upon a lease  for year aver occupation nor though the rend be Payable only during occupation  show any thing must than the lessee entry the venue may come from the will  where the rescue be without join either the will where the demise be make or  the distress take see now g c S this be a penal action a lease for a year and  so from year to year Interrog  c be a lease for two year and afterward at will  S C salk pl r send for post d send for   Litt b say vide salk pl post salk pl  term Rep Bl case for rescous the plaintiff declare that he the that of march  demise a message and land lie in holme Berkley and north b in Yorkshire to  Robinson for one year and so from year to year Interrog  both birth to please  render per annum rend so long as the lessee shall occupy the premise that  Robinson army dimission to go into et to be ind possessionatus and that the  plaintiff the that of November seize five quarter of barley c in et super to  send forward surrender nomin severity for rend of one year and a half end at  Michaelmas and that the plaintiff impound this corn in in storehouse  praemissor and have a design to sell it accord to the statute but the  defendant the that of November at holme aforesaid the corn in the barn be do  rescue and carry away not guilty plead verdict for the plaintiff and in  Michaelmas term last pass wright sergeant move in arrest of judgement diverse  exception Lord Raymond l Exc that the plaintiff have not say that he give  notice of this distress and without notice he can not sell it by the statute S  d non allocatur for the plaintiff do not say that he sell it for that the  rescue prevent the sale but that he intend to sell so that if the defendant  have not rescue the corn the plaintiff may have give notice sufficient to make  legal sale within the intent of the Act Exc it appear that the plaintiff  distrain for the rend of a year after the year be determine which he can not  do since it be but a lease at will say non allocatur for it be a good lease  for two year and after that at will Exc it do not appear when the tenant enter  or how long he occupy say non allocatur for in case of lease for year the rend  become due from the lease and not from the entry and he have no need to aver  occupation because the lessee be liable to pay the rend whether he occupy or  not but in case of lease at will occupation must be aver Exc in this very  lease the word be render rend so long as the lessee shall occupy and then  modus et assembly vincu law say non allocatur for since it be say that the  lessee enter army dimission et to be possessionatus it shall be intend after  verdict that he occupy for so long time as the plaintiff have declare that the  rend be arrear Exc that there be not here any good venue for the demise be lie  in three will holme Berkley and north b and the plaintiff say that he take the  corn in et super lowered to send forward which extend to all the three and  that he impound it in in storehouse praemissor which also extend to all the  three and the whole Lord Raymond er p be in issue as well the demise take c as  the rescue and therefore the venue ought to come out of all three and this be  warrant by cro Elizabeth action v Barham which be a case in point and it be  manifest that the demise c be in issue for if there be no demise then there  can be any rend if no rend no distress if no distress no rescous this be not  aid by the verdict by James cap because it be a penal action and penal action  be except out of that Act it be a penal action because Triple damage be give  in it by the new statute which be not recoverable by the commonlaw and it be  such a penal action as the statute of Jeofails have no design to aid as appear  by car cap where debt for tithe be except out of the proviso by which it  appear that the parliament be of opinion that otherwise debt for tithe Lord  Raymond will have be within the proviso and thereby exclude from the benefit  of that Act for the prevent of which they except it out of the proviso now  this action be not less penal than the action of debt and consequent be within  the proviso since there be no exception to exempt it and as to this point the  whole court be of opinion that it be a penal action but Powell justice say  that it will be a question whether penal action shall be construe to extend to  case where the party grieve bring the action or whether it shall be extend  only to common informer it be adjudge in this court Trinity term last that  where the party grieve bring the action upon a penal law he shall have cost if  he recover but contra if it be bring by a common informer but as to the  exception of the venue Lutwyche sergeant argue that the venue be well lie for  which he cite cro Elizabeth Sydenham v robin case for obstruct of a way the  plaintiff declare that he be seize in fee of a house in d and that he and all  those c have a way over the defendant close in b c not guilty plead the venue  be from b and object that it ought to have be from both will but adjudge good  for upon not guilty plead the obstruction be proper in issue but if the issue  have be upon the prescription it have be otherwise and Noy ban case but this  Hilary term the court give their opinion that the venue be well enough for  though the demise which be of land in Berkley holme and north b rend distress  c be in issue at the trial and ought to be prove yet the principal affair in  question for which this action be bring be the rescue which be at holme and  from thence the venue come well enough and the V cite hob Strede v Hartley hut  clerk v wood cro James Dalton Barnard cro Elizabeth Leeds case but Treby chief  justice say that he have a manuscript report of the case in cro Elizabeth roll  and that by his report which be much preferable to the print book that  judgement be arrest but in the principal case judgement be give for the  plaintiff for the reason aforesaid