1805. LAKE v. SMITH. and that the second count was bad for want of averring such demand: that the words of the statute (a) were, "that if any tenant should hold over after demand made and notice in writing given for delivering possession, he shall pay to the person kept out of possession double the yearly value." And although Lord Mansfield had decided in the case of Wilkinson v. Colley, 5 Burr. 2694. that a notice in writing was itself a sufficient demand, yet that decision was not applicable to the present case, where the notice was given to one party, and an action for the double value brought against another; that although the statute was in some respects to be considered as a remedial law, the action being given to the party grieved, yet that it also operated as a penal law upon the tenant, double rent being in the nature of a penalty, consequently the tenant could never be made a delinquent without a de-. mand; that no inconvenience could arise from requiring such a demand, since it would not be necessary that such demand should be made till the expiration of the tenancy, and the Plaintiff would have no more difficulty in ascertaining upon whom to make the demand than against whom to bring his action. Marshall Serjt. contra was stopped by the Court. Sir JAMES MANSFIELD Ch. J. I do not think that it was necessary to make a demand on the husband; the husband and wife are one person the husband comes in under the wife; he takes her estate, and can only take it in the same right in which she had it. If a woman, being tenant from year to year, receive six months' notice to quit at the expiration of the year, and then marry, can it be said that the husband has a right to hold over after the expiration of the year? The 4 G. 2. has been considered to be a remedial law. Lord Mansfield, in the (a) 4 Geo. 2. c. 28. s. 1. case case of Wilkinson v. Colley, said that it was not like a penal law where a punishment is imposed for a crime,but that a remedy was given to the party grieved. Great inconvenience might arise to landlords if a fresh demand were deemed necessary, since they may not know whether their tenant is married or not. In the common case, if a tenant receives notice to quit,and does not comply with it, he is liable to pay double the yearly value for every year that he holds over, and this is recoverable by action. If a man marry a woman, who is tenant to another, he is bound to enquire under what conditions she holds the estate, whether from year to year, when the year ends,and whether she has received any notice to quit. The obligation of the woman to pay double the yearly value, in case the notice be not complied with, can never be got rid of by the husband's omitting to make inquiry, or the wife deceiving him, or concealing the notice to quit. As to a demand upon the husband, after the expiration of the year, it does not occur to me how it can operate; the offence is complete, if at all, at the end of the year, and if the husband be not then liable, I do not see how he can be made so afterwards. CHAMBRE J. The case strikes me rather differently; I am not aware that any delay or inconvenience can arise from requiring a fresh demand to be made upon the husband. Whomsoever the landlord finds in possession he may require to deliver up the premises. The words of the statute require a demand to be made; they are, "after demand made and notice in writing given for delivering possession." The case of Wilkinson v. Colley was a strong decision in the landlord's favour. I think, however, that the Court was right in considering the statute as a remedial law. They [therefore held that a notice to quit included a demand. But still it appears to me that a demand ought to be made upon the party against whom whom a penal action is to be brought. This is not an action for double rent, but for double the yearly value. There is a distinction between the 4 G. 2. and the 11 G. 2. The 4 G. 2. relates to notice given by the landlord, where it may be presumed that the premises are of greater yearly value than the rent paid. The 11 G. 2. relates to notice given by the tenant, and that statute gives a remedy by distress which might affect the property of other persons. This circumstance operates strongly on my mind. For the two statutes being in pari materiû, may be considered as throwing light on each other. (a) It seems to me, therefore, that a demand ought to have been made upon the husband. HEATH J. I cannot see any reason for two demands. The act speaks of one only, and that may be made before the expiration of the term, and that has been made. The estate of the husband is a continuation of the wife's estate. The double value has been called a penalty, and it is so in some degree, but the law is also a remedial law. ROOKE J. If the case of Wilkinson v. Colley be law, I think that it decides the present case. That case has determined that nothing more is required than that a notice to quit should be given to the tenant; and if he do not quit, he is liable to pay double the yearly value; and the statute was there considered as a remedial rather than a penal law. The act indeed does give a penalty, but it is to the party grieved; and this is a distinction which has often been taken between remedial and penal laws. Here the tenant receives a notice to quit, and then marries. (a) See the case of Timmins v. Rowlison, 3 Burr. 603. where the two acts of 4 G. 2. and 11 G. 2. were much considered and commented upon by the Court,and were held not to be so far acts in pari materiû as to make a notice in writing necessary under the latter act because required by the first. How How is the landlord to know whether his tenant be married or not, and if the demand be not made before the expiration of the term, the penalty is not saved. The husband, when he marries, takes his wife with all her debts; he is quite as likely to know this obligation to deliver possession, as the bond and simple contract debts of his wife, and yet it is not necessary to make a demand upon him before an action is commenced for such debts. For these reasons, I think that judgment should be given for the Plaintiff. Judgment for the Plaintiff. 1805. LAKE บ. SMITH. SCOTT and Another v. THOMPSON. TH at o of Feb. 8th. Policy on goods on board a particular ship from 4. to B.“ against searisk and fire only;" in the course of the voyage from A. to B. the ship was carried out of the course of the voyage by a king's ship, but being afterwards released, she proceeded on the voyage insured, and while so proceeding, the goods insured sustained sea-damage: held that the under writers were liable for this loss. 1805. SCOTT and Another v. THOMPSON. of the insurance. On the 22d September 1801, the said vessel and cargo sailed from Liverpool upon the said voyage, staunch, strong, in good order and condition, and well and sufficiently provided in all respects. About 10 A. M. on the 1st October, in the course of the said voyage, the said vessel was boarded by his majesty's brig Raven,commanded by Captain James Saunders, who took possession of the Sophia Frederica,and carried her,against the will of the captain and crew, out of the course of her voyage to Amsterdam, into Falmouth, where she arrived about 12 at night, the same day, in possession of and under the direction of the officers of his majesty's said ship the Raven, who moored and detained her there until the 12th November 1801. On the 12th November, she was released and immediately proceeded from Falmouth for Amsterdam. On the 20th November, being off the coast of Holland, she was there detained by tempestuous weather until the 24th, during which time she sprung a leak, and on the 24th November she arrived at Amsterdam, and unloaded her cargo, which was found to have sustained sea-damage; but it was admitted on the part of the Plaintiff, that no part of such sea-damage happened before her detention by the brig Raven. When the said vessel sailed from Liverpool, she was furnished with all the proper documents for the said voyage, which were on board her at the time of the said detention. On the part of the Defendant, it was contended that the said ship, being so taken out of the course of her voyage to Amsterdam into Falmouth, was a deviation and put an end to the insurance. The question for the opinion of the Court was, Whether, under the circumstances of this case, the Plaintiffs were entitled to recover? If the Court should be of opinion that the said goods were covered by the insurance, after the ship was so taken out of the course of her voyage, a verdict was to be entered for the Plaintiffs for such damages as the arbitrator should find due. If the Court |