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412

Superior Courts : Equity Eschequer.

point of prudence and propriety, and as a turnips, to a considerable extent, in advance guard over the estate, I am of opinion that it of the hurdles, had been picked up and severed would not be proper that a solicitor who was from the ground before the flock was turned a trustee, should be distinguished from an or. in; and the question is, whether, under such, dinary trustee. If a trustee, who is a solicitor, circumstances, these turnips were liable to the acted as a solicitor, he is not entitled to charge payment of tithe. There could be no doubt, as for his labour; he is entitled only to be paid a general question, that where turnips were his costs out of pocket ; this rule applies to severed from the ground, as in this case, and the present case.

drawn away, they were subject to the payment As to the second question, his Lordship re- of tithe ; and the question here is, whether commended an application to the Stamp Office, 1 turnips picked up are liable to the payment of for the value of the spoiled stamps.

tithe where they were consumed by cattle or Nero v. Jones.-Sittings in Gray's Inn Hall, sheep in the manner described. The use to August 8, 1833.

which the turnips were applied, being consumed by sheep, did not render them less liable

to the payment of tithe, and that circumstance TITHES.-TURNIPS SEVERED.

alone would not meet the plaintiff's demand. Held, that turnips severed from the ground There is a number of cases to which reference

for sheep to feed on, though not removed had been made, where turnips had been severed from the spot where they grew, are subject from the ground for the purpose of then being to tithes in kind, and not to agistment tithe, eaten by cattle, as in this case. One of the cases like lares and vetches.

referred to was in Burn,--that of Eckards. Broren Semble, such tithes are to be set out, as the and Dousey, where the defendant Dowsey

farmer sets out the turnips for himself. adınitted that several loads of turnips had been The plaintiff is vicar of the parish of East. severed and drawn away, but were fed upon by Meer in the county of Southampton; and the

d the cattle. The plaintiff had received tithe for bill was filed against the defendant, to recover

calves and cattle, but demanded an account of tithes of turnips grown upon land which he tithe for turnips severed and drawn; and it was occupied in that parish. The defendant by his ruled, that turnips thus drawn and disposed of answer, and by his counsel at the bar, admitted did not deprive the plaintiff of his right to the plaintiff's right to the small tithes of this

es of this tithe. Dr. Burn, who was himself a high parish, and also that turnips were, like other authority, stated, that if cattle were fed on roots, subject to the payment of tithes: but he the unsevered turnips, there could only be an insisted, by way of defence to the suit, that his agistment tithe; but if they were severed, there turnips were grown for the purpose of being

must be a tithe in kind paid by the severers. depastured on by his sheep; that his sheep

In addition to that case, which was decided in did in fact feed on them in the ground. or the time of William III., three other cases were pulled up for them, and that turnips so fed on

that turning so fed on referred to on the same point; one was Hun. were subject only to the tithe of agistment,

Iphreys v. Stopher,a 4 Anne, where after a long where such tithes were by custom payable.

debate, and a search after precedents, it was The Lord Chief Baron having taken time to ordered and directed, that tithes for turnips consider the case, and to look into the autho-drawn and severed from the ground, and given rities that were cited, delivered the following to dry or milch cattle, although on the same iudgment. comprehending all the material | farm, were due in kind. In another case. facts of the case and the arguments upon them. I Ringstead v. Young and others", after it had No question arises as to that portion of the

| been ordered to stand over for the purpose turnips which were fed off in the ground, and of of searching for precedents, the Court, after which the roots when fed off were picked up. But mature consideration, declared that for turanother portion of the turnips is of a different

nips drawn and severed from the ground, and description ; that is, where persons were em

| fed on by profitable or unprofitable cattle, ployed to pick turnips in advance of the hurdles,

tithes in kind were due : the same inference before the whole flock of sheep were turned in might be drawn from the case of Blaney v. It appeared that some sickly sheep had been

Whittaker, which is cited from a MS. note in turned in before this operation commenced, and Neuman v. Morgan, 10 East, 5. in which Mr. that some lambs had entered through the gate,

Justice Le Blanc decided, where the only quesand were also fed. From the evidence it also

tion agitated was as to the mode in which such appeared, that turnips in this way were severed

tithes were to be set out. The principle was to a considerable extent; it was also distinctly

clear, that the circumstance of the turnips sworn to, that as inuch as was necessary for

having been drawn and severed for sheep, did the consumption of one, two, or three days,

not deprive the plaintiff of his right to tithe. It were picked up and severed before the entire was said that they were fed upon the same flock had been turned in; the sickly sheep spot where they grew, and a distinction was atonly had been turned in, and the lambs had tempted to be set up on these grounds; bu found an opportunity of running in through did not appear to him that any distinction could the gates ; this was sworn to by several witnesses on the part of the plaintiff, and was not a 1 Wood's Tithe Cases ; 2 Gwyl. 592; and contradicted by the witnesses for the defendant, | | Eagle and Young, 675. who, as far as their evidence went, confirmed b Wood's Tithe Cases, and i Eagle and the statement. There is then no dispute, that Young, 690.

Soperior Courts : Equity Exchequer; K. B. Practice Court.

413

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be made as to where the feeding took place : tithes of such turnips as were severed in adwhether the turnips were fed on where they | vance of the hurdles, and before the entire grew, or where they were severed, or whether flock of sheep had been turned in. The costs they were reinoved to a different part of the to be paid, so far as they relate to the part of farın, it did not appear that it could make any the case to which the account is directed. difference, nor was there any case cited to kemp v. Pechell. Sittings in Gray's Inn shew such difference. It did not appear, on Hall, August 3, 1833. looking over the case, that any reliance Quære, Whether the case of Lercis v. Young could be placed, or any distinction drawn was not reversed in the House of Lords, though on these grounds. It seemed, therefore, not as to the point for which it is above cited. that the turnips having been severed before the entire fock were turned in,-they having been turned in afterwards, and the turnips fed King's Bench Practice Court. on by the sheep, the tithes in kind must be paid. There was one argument as to the diffi

Service OF PROCESS.-RULE TO COMPUTE. culty of this mode of taking tithes, but it did What is equivalent to personal service of not appear that there was any difficulty which process. was not pointed out in the case of Blaney v. On ipoving for a rule nisi to compute prinWhittaker.c The rule was this—that in those cipal and interest on a bill of exchange, an cases, where the farmer, with respect to his application was made to the Court, to allow the own turnips, and for his own use, puts them in service of the rule to be on the porter of the heaps, if he does, he must take care either to heap Junior United Service Club. It appeared that the tithe for the parson, or throw aside every the bill had been orriginally accepted, payable tenth turnip so drawn. In that case, the turnips at the club; that the process commencing the were drawn to feed cattle, and every tenth suit had been personally served on the porter, turnip was thrown aside; and the question was, who stated that the defendant was in the habit whether they had been properly set out, or, as of sending his servant every day to receive the the parson contended, they ought to be ga- messages and communications which might be thered into heaps. The Court decided, that as left for him at the club. the farmer set them out for himself, so he must Taunton, J., permitted the service of the set them out for the parson; therefore, any rule nisi to compute the service, to be on the difficulty as to the inode of tithing, which had been contended for in the argument, did not Rule nisi granted. The rule was afterwards appear to exist here, which was not pointed out made absolute on this service. in the case of Blaney v. Whittaker.

er.

There

There Ridgway v. Baynton, T. T. 1833, K. B. P.C. was another argument, that this bore analogy to the case of Lewis v. Young.d As to the tithe of tares and vetches cut green, and given

SERVICE IN EJECTMENT. and carried off for the feeding of cattle and husbandry horses; in that case it was decided

What is a sufficient service in ejectmenl. that it was in the nature of agistment tithe. Application for judgment against the casual It was said this case was like that; but the case ejector. The affidavit on which the motion of Lewis y. Young was founded on the dictum was made, stated the serving of the declaration, of Chief Baron Richards, and also on the case properly explained, on the servant of the teof Dormer v. Seures. The main ground onnant in possession, and that he promised that which Chief Buron Alexander decided was, the the tenant should have it. The deponent difficulty of treating articles of this descrip- further went on to state, that he had seen that tion, as grass and hay, and the impracticability declaration so served on the servant in the of setting it out in the shape of tithe. This hands of the tenant's attorney on the same difficulty was the main cause of coming to day. the conclusion, that it was in the nature of | Taunton, J., allowed the rule for judgment agistment tithe. Afterwards, when the question to be taken. came before me, in the case of Allnut v. Allen, Rule granted. — Doe v. Roe, T. T. 1833, I considered myself bound by that decision. K. B. P. C. If the case rested on the difficulty or imposibility of setting out the tithe in the ordinary way, it would then be different; but that does not

SUMMONS.—UNIFORMITY OF PROCESS ACT. exist in this case; therefore, the principle of It is only necessary to pursue the form of a that decision cannot be made use of as a valid summons given in the schedule to the Uniargument for the defendant in the present cause. formity of Process Act. It appears to me, therefore, that the claim of the On application to set aside a writ of summons plaintiff is founded on law, supported by concur- on the ground of irregularity, the ground of rent decisions which have not been impeached, the motion stated, was, that the name of the and that as there are no valid grounds to oppose chief clerk of the King's Bench was omitted this claim, there must be an account for the

on the writ. It appeared, however, that the

copy served strictly pursued the form given in c 10 East, 5.

the schedule of the 2 & 3 W. 4. c. 39, the Uni. d 3 Price, 394 ; S. C. 1 M'Cle. 113. formity Process Act. It was contended, in e 6 Price, 338.

support of the motion, that although the name

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Superior Courts : K. B. Practice Court.

of the chief clerk was not introduced in the No statement however was made in the affiform, yet it was still necessary that it should davit, that any notice had been given to the be introduced.

| bail, or that any attempts had been made to Taunton, J., was of opinion that it was quite give such notice sufficient for persons suing out writs of sum- Pritteson, J., thought it was necessary, where mons, to adopt the form given in the schedule the bail resided out of the county of Middleof the act. The forms given by the 1 & 2 W. 4. sex, according to I Reg. Gen. H, T. 2 W. 4, c. 39, were given as a guide to practitioners in to give notice to the bail of the proceedings the mode of conducting proceedings. It would against them, before judgment was signed, or be difficult to know what ought to be intro- at least that some attempts should be made duced into a writ, if pursuing the form given for that purpose. by the act did not suffice.

1 Rule refused.-Winnall v. Cock and another, Rule refused. Wilson v. Joy, T. T. 1833, bail of Cock, T. T. 1833, K. B. P. C. K. B. P. C.

ADMISSION OF ATTORNEY.-ARREARS OF DUTY. ORDER OF COURT.-ATTACHMENT.-COSTS. An absolute order of Court and not a condi- Where an attorney may be re-admitted scith

ditional one, can be enforced by attachment. I vut payment of arrears of duty or fine. A rule nisi was obtained for attachment, for On an application to re-admit an attorney, not paying certain costs, pursuant to a Judge's the affidavit produced stated, that the appliorder. The defendant had obtained an order cant had been regularly admitted, and confor striking out a plea on payment of costs to tinued to take out his certificate for several the plaintiff. He struck out the plea, but years; but that from circumstances which had omitted to pay the costs. Under these cir- taken place, he had ceased for some time to cumstances, the plaintiff applied to the Court take out his certificate. During this latter for a rule nisi for an attachment, for not paying period he had ceased to practise ; and the apthose costs. On shewing cause against the rule, plication now made was, that he might be reit was contended, that the defendant could not admitted without payment of fine, ur arrears be liable to an attachment for the non-obedi- of duty. ence to an order which was only conditional. Trunton, J., granted the application, and diThe order was in fact no order at all, until rected that he should be re admitted without that was done, which rendered the payment of payment of fine or arrears of duty. the costs necessary. Therefore, disobedience Rule granted.-E.r parte Thompson, T. T. to that order could not be construed into a 1833, K. B. P. C. contempt, and without a contempt there could be no remedy by attachment. Although the defendant in this case had not paid the costs,

2: ATTORNEY AND AGENT. - ATTORNEY AND having struck out the plea, such conduct only

CLIENT. amounted to a breach of promise, but not to a contempt. If the defendant had given an un If an agent of an attorney misconducts hiindertaking to pay these costs absolutely, the self, the remedy of the client is against the case might have been different; no under attorney, and not against the agent. taking had been given, and therefore no re

An application was made on the part of a medy by attachment could exist. In support of the rule it was contended, that

client against the agent of his attorney, for the as the defendant had struck out the plea, and

purpose of compelling the agent to pay over a

sum of money which it was alleged had come thus obtained all the advantage accruing from the Judge's order, he ought to pay the costs ;

note. wrongfully into his hands.

il Taunton, J., refused to interfere, on the and if he did not, and could not be compelled

I ground that there was no privity between the by this means, great injustice would be done to the plaintiff.

| client and the agent; and observed, that if the

agent mis-conducted himself, and any injury Taunton, J., was of opinion, that as the order here was only conditional, the plaintiff was no:

accrued to the client, the remedy of the latter

was against the attorney. entitled to his remedy by attachment. Ruledischarged, without costs. Rex v. Fenn, I KR

Rule refused.-Ex parte Smith, T. T. 1833,

K. B. P. C. T. T. 1833, K. B. P. C.

a A different construction of the statute at SCI. FA.-BAIL.-JUDGMENT.

one time prevailed from that which is recogWhat steps must be taken before judgment nized by the above case; and it was usual for

can be signed on a sci. fa. against bail. the Court in all such cases to require the payOn application to sign judgment on a sci. fa. ment of the duty in arrear, notwithstanding against bail, it appeared from the affidavit on the party had ceased to practise since the exwhich the motion was founded, that the pro- piration of his certificate. The practice has ceedings had been regular, and the sci. fui re- however on different occasions varied; but the turned nihil. It also appeared that the bail above decision is in conformity with the prewere resident out of the county of Middlesex. sent fixed practice of the Courts.

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POSTEA ON ISSUES UNDER THE demise, all actions of covenant or debt upon LAW AMENDMENT ACT. any bond or other specially, shall be com

menced and sued within twenty years after the

cause of such actions or suits, but not after." The following is an authorized form : | This statute is in force at present. My ques

tion is, What does all this mean? J.C.. “Afterwards, that is to say, on the day of

1833, [stating the day of trial,] before me E. F., Esq., Sheriff of the

INFANT.-MARRIAGE. P. 400. county of , according to the furm of the statute in such case made and pro

1. In Starkie on Evidence, p. 724, Part 4, vided, came as well the within named A. B.

I find the following answer to 0. P.Q. “Al

| though the promise of an infant will not bind as the said C. D., by their respective at- him. encen

him, except for necessaries, yet he may take torneys, and a jury being chosen tried and advantage of any promise made to him, alsworn, as within commanded, the same though the consideration were merely the injury upon their oath say,” &c. [as in the fant's promise, as in an action of mutual propresent cases].

mises to marry.

C. G. W. 2. An action for a breach of promise of marriage will not lie against an infant, nor

indeed against a person of full age, on a proANSWERS TO QUERIES.

mise made by him during infancy; for such | an action must be laid in (assumpsit, wherein | the plea of infancy is a defence. It is obsery

able also, that if the plaintiff reply that the Practice.

| defendant ratified his promise after he came PRACTICE.-costs. 2 W.4. c. 39. § 11. P. 400. of age, such ratification must be in writing, The act 2 W. 4. c. 39.8 11. renders the days by 9 Geo. 4. (Lord Tenterden's act).

J.S. between the 10th August and 24th October, with regard to the filing and delivery of ded) 3. Where there are mutual promises to clarations or pleading after declaration dies marry between two persons, one of the age of non, although an appearance sec. stat. may be

twenty-one, and the other under that age, the entered for the defendant upon a writ served

od | first is bound by the contract, and on the side between the above mentioned days. If an

of the minor-it is voidable ; or for a breach attorney, therefore, is not entitled to declare,

of the promise on the part of the person of full he is not in a situation to charge for the draw

| age, the minor may maintain an action, and ing and copying declaration, though he may,

recover damages : but no action can be mainI conceive, for instructions for declaration.

tained for a similar breach of the contract on E.

the side of the minor. Bruce v. Waruick, 2 M. & S. 205 ; 6 Taunt. 118.

W. D.

SATISFACTION ON JUDGMENT. P. 400.
If the action is in the Common Pleas, a

Law of Attorneys. warrant of attorney is necessary; see Impey's costs.-UNQUALIFIED ATTORNEY. P. 400. Prac. C. P. “ Satisfaction ;” but in the Ex

1. I refer H. P. D. to the decisions on the chequer or King's Bench, it may be done by

law of unqualified attorneys practising in the the attorney on the record signing a satisfac

Exchequer, in Vol. 6, No. 156, p. 278, of the tion piece; but if plaintiff's attorney demands,

Legal Observer, where he will find the best he has the right to enter the satisfaction, and the defendant must pay his costs, which

ich decisions on the subject I am aware of.

C. G. W. amount on taxation to about 41. 10s.

C. G. W.

2. No attorney, not admitted of the Court of Exchequer, can practise in his own name;

and though the Court will not set aside the Common Law.

proceedings taken by him, unless it appear

that the client was aware of the fact, yet the LIMITATION OF ACTIONS.-RENT. P. 377.

| proceedings will be stayed until a proper at. I cannot answer your correspondent.“ Stu- torney be appointed. But an attorney admit. dent,” but I will carry his question further. ted in either of the Superior Courts, having By the 42d sect. of the stat. cited by him, and duly obtained his certificate, may practise in which will come into operation on the 31st the Court of Exchequer in the name of an ad. December next, “no arrears of rent shall be mitted and certificated attorney; but such perrecovered by any distress, action, or suit, but mission inust be in writing, and the proceedwithin six years next after the same shall have lings must all appear in the name of the latter. become due,” &c. See sect. I of the stat. for 2 Geo. 2. c. 23; and Dax's Practice, 2d ed. the meaning of the word "rent.” By the 3d (p. 25 & 26. It is the usual practice to dissect. of the stat, 3 & 4 W. 4. c. 42. (for the allow the costs, if the attorney has not been further amendment of the law, &c.), “ all ac- admitted, and has not such consent in writing, tions of debt for rent upon an indenture of

E.

416

Queries.- Editor's Letter Box.

QUERIES.

of A.'s witness. A verdict was then taken by

consent. Was the cvidence aforesaid sufficient Practice.

to establish a conversion, the same being a BVIDENCE.-DAY.-PERJURY.

qualified refusal? See l Esp. R. 83; 2 Buls. A declaration in trover stated that the plain-312; B. N. P. 46; 3 Camp. 215; 5 B. & A. tiff, on the 5th day of May, 1833, was lawfully 247; 1 Camp. 409. And has the Court power possessed of the goods, and being so possessed to infer a conversion ; or must it not, in all on the day and vear lasi aforesaid, lost the said cases, be found by the jury? See 2 Mod. 242: goods. On the trial of the cause the plaintiff's | 10 Coke, 57; 2 Roll. Abr. 693; 1 T. R. 478: witness swore that it was on the 5th, and the Hob. 181. And provided the above did not counsel in his speech to the jury stated it to be amount to a conversion, ought there not to be on that day that defendants went to plaintiff's a new trial without the payment of costs, or house and induced him to deposit them. Now, should a nonsuit be entered ? as it was on the 4th of May, could the defend. ants be relieved in any way? and will it amount

PARISH REGISTRY.-STAMP. to perjury in the witness, especially as the whole

1 Some clergymen refuse to give a marriage

s of his evidence vas altogether maliciously pulse, I certificate except on a stamp. In the last act or will the day be considered immaterial, and

relating to parish registry, 52 G. 3. c. 146, it a mere crror on the part of the witness ?

* A. .

is stated that no stamp shall be necessary on any certificate; but the last Stamp Act, 55 G. 3.

c. 184, requires a certificate of inarriage (ex. Common Law.

cepting soldiers, sailors, and marines,) to have PAWNBROKERS.

a bs. stamp. I can find no mention of a By the 39 and 40 Geo. 3. c. 99, § 17. “ All penalty attaching to the giving an unstamped goods and chattels pawned or pledged shall be copy. If only wanted for private evidence, deemed forfeited, and may be sold at the expi- the stamp would fix no importance to it. ration of one whole year, exclusive of the day Would it be necessary to have it stamped as of pawning.A person pawned an article for evidence in Court ? An unstamped certificate a sum less than 10s. on the 11th of August, has not been refused at the Master's Office to 1832, and did not apply for the article until the evidence a pedigree. Can then a clergymnau 12th of August in the present year. The pawn- | legally refuse to give a certificate unstamped? broker refused giving up the article, stating as

CLERICUS. a reason, that the year having expired the article was forfeited. It will be observed that the

Law of Property aud Canbeyancing. year expired on the night of the 11th of Au

PURCHASE BY CORPORATOR. gust; but that being Sunday, the pawner could

The burgesses belonging to the corporation not apply on that day for the pledge, but on the

of the town and county of S., are possessed of following morning, Monday, applied to redeem

considerable freehold property. Looking at the pledge, but the pawnbroker refused to give

the corporators in the light of trustees for the it up for the above reason. Under the circum

same town, have they the power to sell any of stances, was not the pawner in time?

H. H.

their freeholds to one of their own body, so as to make a legal title to him?

J. P. TIThE COMPOSITION. A parson of a parish enters into an agreement with the occupiers of the land for retain

THE EDITOR'S LETTER BOX. ing their tithes; can an action be maintained for not setting out the tithe until such agree

Part JI, of the “ Commentaries on the New ment is determined? and what is the requisite

Statutes,” effecting Alterations in the Law, notice from the parson to the occupiers of the

will be published on Saturday the 5th October, land, for the determination of the composition?

containing the Dower, Inheritance, and Fines and Recoveries Acts, with the Forms rendered

necessary by the Alterations, price 2s. Deposit.—TROVER.-CONVERSION.

The First Part, containing the Limitation of A. deposited goods with B., on the 4th of Actions Act, and the Law Amendment Act, May. On the 14th, A. made a personal de- may be obtained at the Publisher's, price 38. mand on B. for a return of the goods, when The Third Part will be published before the B. returned for answer the following qualified | Term. refusal: “ I shall refuse to deliver them up! We shall be happy to afford the earliest at. unless you pay me the money due to me, and tention in our power to J. W., on the tivo subfor which they were deposited, for six weeks.” Ijects on which he has addressed several comAn action in trover was immediately communications, and it may be well to keep alive menced, and on the trial, a witness swore that the attention of the public by an occasional the goods were obtained from A. by B. under notice; but some of the details may well be threats of violent proceedings; and another reserved until the approach of the next Parliawitness proved the above refusal. The Judgement. would not, therefore, allow the defence to be The Queries and Answers of S.; C. G, W.: entered upon; and as B. was taken by sur-J. S.; E.; Anon.; W. D. ; T.M.; E.J. “A prise, he had no witness to rebut the evidence Subscriber ;” and J. K., shall be attended to.

W.

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