austin versus BURSCOE stat e c not set out tithe c error of a judgement in c b  in debt for the Triple value of tithe upon the stat e it be move for error  that the single value lie in the declaration be and the Triple value lie to be  l whereas it real be l and the juror find l part of the l and trinder urge  that where a man shall demand a entire duty and demand but part the party may  be double vex d cur No matter for the single value the action be for the  Triple value where the sum be certain as upon bind or for a quarter S rend if  one demand but and do not show how the rest be pay it be nought but here the  value be uncertain and to be ascertain by the jury who be not bind by the sum  lie in the declaration c but the most material exception be that it be not  aver d in the declaration that the defendant have not agree with the parson  for the not agree be in the same clause which give the action for Triple value  the bare not set they out no sufficient cause of action cro dag and ken versus  Penkevon moil and ewer hall contra the case in cro show only that it may come  in on the other side so make nothing for they and cro be not to the purpose  trinder say he cite it only for a precedent of the declaration but that it  ought to come in on the other side he cite I Leon sir John smith and pear S  case smith and Kirfoot chamberlain and Thorp hob Mod jordan and Martin march  tailor S case Leon Elizabeth dorm S case Plowd in stowel and zouch S case holt  Ch I I doubt the case cite be not alike in case of a fine and nonclaim one  needs not aver that the Comberbach party nonclaiming be of full age c for that  be not the enact clause but in the proviso of the statute but here this in the  same enact clause which make the difference as to the case of smith and  Kirfoot it be the common way of declare upon a award and must come in upon  evidence whether the award be good a award be not as a specialty as to saint  John and saint John S case the statute be but directory and if a stranger take  upon he to be the proper officer a action lie in the case of recusancy it must  come on the other side for it be not intendible that one have a lawful excuse  unless he show it as to cro a agreement with one be a agreement with both I  think this will have be ill upon demurrer eyres I think it be sufficient to  declare in a summary way the action be find upon the tort and the excuse put  into the defendant S mouth but admit it to be ill upon demurrer then it be  debate whether it be aid by the verdict note it be say in dr Hussey S case cro  that this be not such a penal law but that the statute of jeofails extend to  it holt Ch I if the plaintiff can not recover without give it in evidence it  be help d at the commonlaw by the verdict here it be on the defendant S part  and though it be object that the defendant may make default at the trial and  then the plaintiff may recover on a faulty declaration without such evidence  if so it must be the defendant S own fault but however the plaintiff must duly  entitle himself and prove his cause of action in the case of Bickerstaff and  Purdney which be report after a manner in side debt be bring by a executor for  rend incur after the death of the testator upon non to hold off plead and  verdict for the plaintiff it be move in arrest of judgement that by common  intendment the testator be tenant in fee and a particular estate shall not be  presume yet it be hold to be help d by the verdict for it must have appear at  the trial so want of attornment be belp d by verdict et adjourn and now hall  cite Mod lee versus Edward Nosworthy versus wildman sand Stennel versus Hogg  side Coomber versus Wotton fruen versus porter and apply they that the right  be here try it can be intend after verdict that there be any agreement or  satisfaction holt Ch I the not agree c be a most material part of the  declaration but Comberbach er p it be certain the plaintiff can not have have  a verdict if there have be any agreement he cite Buxton and Bateman S case  side in point judgement affirm nisi