412 Superior Courts: Equity Exchequer. As to the second question, his Lordship recommended an application to the Stamp Office, for the value of the spoiled stamps. New v. Jones.-Sittings in Gray's Inn Hall, August 8, 1833. TITHES.-TURNIPS SEVERED. Held, that turnips severed from the ground for sheep to feed on, though not removed from the spot where they grew, are subject to tithes in kind, and not to agistment tithe, like tares and vetches. Semble, such tithes are to be set out, as the farmer sets out the turnips for himself. The plaintiff is vicar of the parish of EastMeer in the county of Southampton; and the bill was filed against the defendant, to recover tithes of turnips grown upon land which he occupied in that parish. The defendant by his answer, and by his counsel at the bar, admitted the plaintiff's right to the small tithes of this parish, and also that turnips were, like other roots, subject to the payment of tithes; but he insisted, by way of defence to the suit, that his turnips were grown for the purpose of being depastured on by his sheep; that his sheep did in fact feed on them in the ground, or pulled up for them, and that turnips so fed on were subject only to the tithe of agistment, where such tithes were by custom payable. 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 of tithe; and the question here is, whether turnips picked up are liable to the payment of tithe where they were consumed by cattle or sheep in the manner described. The use to which the turnips were applied, being consumed by sheep, did not render them less liable to the payment of tithe, and that circumstance alone would not meet the plaintiff's demand. There is a number of cases to which reference had been made, where turnips had been severed from the ground for the purpose of then being eaten by cattle, as in this case. One of the cases referred to was in Burn,--that of Eckard v. Brown and Dowsey, where the defendant Dowsey admitted that several loads of turnips had been severed and drawn away, but were fed upon by cattle. The plaintiff had received tithe for calves and cattle, but demanded an account of tithe for turnips severed and drawn; and it was ruled, that turnips thus drawn and disposed of did not deprive the plaintiff of his right to tithe. Dr. Burn, who was himself a high authority, stated, that if cattle were fed on the unsevered turnips, there could only be an agistment tithe; but if they were severed, there In addition to that case, which was decided in must be a tithe in kind paid by the severers. the time of William III., three other cases were referred to on the same point; one was Humphreys v. Stopher,a 4 Anne, where after a long 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 judgment, comprehending all the material farm, were due in kind. In another case, facts of the case and the arguments upon them. No question arises as to that portion of the turnips which were fed off in the ground, and of which the roots when fed off were picked up. But another portion of the turnips is of a different that is, where persons were emdescription; ployed to pick turnips in advance of the hurdles, before the whole flock of sheep were turned in It appeared that some sickly sheep had been turned in before this operation commenced, and that some lambs had entered through the gate, and were also fed. From the evidence it also appeared, that turnips in this way were severed to a considerable extent; it was also distinctly sworn to, that as much as was necessary for the consumption of one, two, or three days, were picked up and severed before the entire flock had been turned in; the sickly sheep only had been turned in, and the lambs had found an opportunity of running in through the gates; this was sworn to by several witnesses on the part of the plaintiff, and was not contradicted by the witnesses for the defendant, who, as far as their evidence went, confirmed the statement. There is then no dispute, that Ringstead v. Young and others, after it had been ordered to stand over for the purpose of searching for precedents, the Court, after mature consideration, declared that for turnips drawn and severed from the ground, and fed on by profitable or unprofitable cattle, tithes in kind were due: the same inference might be drawn from the case of Blaney v. Whittaker, which is cited from a MS. note in Newman v. Morgan, 10 East, 5. in which Mr. Justice Le Blanc decided, where the only question agitated was as to the mode in which such tithes were to be set out. The principle was clear, that the circumstance of the turnips having been drawn and severed for sheep, did not deprive the plaintiff of his right to tithe. It was said that they were fed upon the same spot where they grew, and a distinction was attempted to be set up on these grounds; but it did not appear to him that any distinction could a 1 Wood's Tithe Cases; 2 Gwyl. 592; and 1 Eagle and Young, 675. bi Wood's Tithe Cases, and 1 Eagle and Young, 690. Superior Courts: Equity Exchequer; K. B. Practice Court. be made as to where the feeding took place: whether the turnips were fed on where they grew, or where they were severed, or whether they were removed to a different part of the farm, it did not appear that it could make any difference, nor was there any case cited to shew such difference. It did not appear, on looking over the case, that any reliance could be placed, or any distinction drawn on these grounds. It seemed, therefore, that the turnips having been severed before the entire flock were turned in,-they having been turned in afterwards, and the turnips fed on by the sheep,-the tithes in kind must be paid. There was one argument as to the difficulty of this mode of taking tithes, but it did not appear that there was any difficulty which was not pointed out in the case of Blaney v. Whittaker. The rule was this-that in those cases, where the farmer, with respect to his own turnips, and for his own use, puts them in heaps, if he does, he must take care either to heap the tithe for the parson, or throw aside every tenth turnip so drawn. In that case, the turnips were drawn to feed cattle, and every tenth turnip was thrown aside; and the question was, whether they had been properly set out, or, as the parson contended, they ought to be gathered into heaps. The Court decided, that as the farmer set them out for himself, so he must set them out for the parson; therefore, any difficulty as to the mode of tithing, which had been contended for in the argument, did not appear to exist here, which was not pointed out in the case of Blaney v. Whittaker. There was another argument, that this bore analogy to the case of Lewis v. Young. As to the tithe of tares and vetches cut green, and given and carried off for the feeding of cattle and husbandry horses; in that case it was decided that it was in the nature of agistment tithe. It was said this case was like that; but the case of Lewis v. Young was founded on the dictum of Chief Baron Richards, and also on the case of Dormer v. Seures. The main ground on which Chief Baron Alexander decided was, the difficulty of treating articles of this description, as grass and hay, and the impracticability of setting it out in the shape of tithe. This difficulty was the main cause of coming to the conclusion, that it was in the nature of agistment tithe. Afterwards, when the question came before me, in the case of Allnut v. Allen, I considered myself bound by that decision. 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 exist in this case; therefore, the principle of that decision cannot be made use of as a valid argument for the defendant in the present cause. It appears to me, therefore, that the claim of the plaintiff is founded on law, supported by concurrent decisions which have not been impeached, and that as there are no valid grounds to oppose this claim, there must be an account for the c 10 East, 5. 43 Price, 394; S. C. 1 M'Cle. 113. * 6 Price, 338. 413 tithes of such turnips as were severed in advance of the hurdles, and before the entire flock of sheep had been turned in. The costs to be paid, so far as they relate to the part of the case to which the account is directed. Kemp v. Pechell.-Sittings in Gray's Inn Hall, August 3, 1833. Quare, Whether the case of Lewis v. Young was not reversed in the House of Lords, though not as to the point for which it is above cited. King's Bench Practice Court. SERVICE OF PROCESS.-RULE TO COMPUTE. What is equivalent to personal service of process. On moving for a rule nisi to compute principal and interest on a bill of exchange, an application was made to the Court, to allow the service of the rule to be on the porter of the Junior United Service Club. It appeared that the bill had been orriginally accepted, payable at the club; that the process commencing the suit had been personally served on the porter, who stated that the defendant was in the habit of sending his servant every day to receive the messages and communications which might be left for him at the club. Taunton, J., permitted the service of the rule nisi to compute the service, to be on the porter. Rule nisi granted.—The rule was afterwards made absolute on this service. Ridgway v. Baynton, T. T. 1833, K. B. P. C. SERVICE IN EJECTMENT. What is a sufficient service in ejectment. Application for judgment against the casual ejector. The affidavit on which the motion was made, stated the serving of the declaration, properly explained, on the servant of the tenant in possession, and that he promised that the tenant should have it. The deponent further went on to state, that he had seen that declaration so served on the servant in the hands of the tenant's attorney on the same day. Taunton, J., allowed the rule for judgment to be taken. Rule granted. Doe v. Roe, T. T. 1833, K. B. P. C. SUMMONS.-UNIFORMITY OF PROCESS ACT. It is only necessary to pursue the form of a summons given in the schedule to the Uniformity of Process Act. On application to set aside a writ of summons the motion stated, was, that the name of the on the ground of irregularity, the ground of chief clerk of the King's Bench was omitted on the writ. It appeared, however, that the copy served strictly pursued the form given in the schedule of the 2 & 3 W. 4. c. 39, the Uniformity Process Act. It was contended, in support of the motion, that although the name 414 Superior Courts: K. B. Practice Court. of the chief clerk was not introduced in the form, yet it was still necessary that it should be introduced. Taunton, J., was of opinion that it was quite sufficient for persons suing out writs of summons, to adopt the form given in the schedule of the act. The forms given by the 1 & 2,W. 4. c. 39, were given as a guide to practitioners in the mode of conducting proceedings. It would be difficult to know what ought to be introduced into a writ, if pursuing the form given by the act did not suffice. Rule refused. Wilson v. Joy, T. T. 1833, K. B. P. C. No statement however was made in the affidavit, that any notice had been given to the bail, or that any attempts had been made to give such notice. Patteson, J., thought it was necessary, where the bail resided out of the county of Middlesex, according to 1 Reg. Gen. H. T. 2 W. 4, to give notice to the bail of the proceedings against them, before judgment was signed, or at least that some attempts should be made for that purpose. Rule refused.-Winnall v. Cock and another, bail of Cock, T. T. 1833, K. B. P. C. ORDER OF COURT.-ATTACHMENT.-COSTS. An absolute order of Court and not a condiditional one, can be enforced by attachment. A rule nisi was obtained for attachment, for not paying certain costs, pursuant to a Judge's order. The defendant had obtained an order for striking out a plea on payment of costs to the plaintiff. He struck out the plea, but omitted to pay the costs. Under these circumstances, the plaintiff applied to the Court for a rule nisi for an attachment, for not paying those costs. On shewing cause against the rule, it was contended, that the defendant could not be liable to an attachment for the non-obedience to an order which was only conditional. The order was in fact no order at all, until that was done, which rendered the payment of the costs necessary. Therefore, disobedience to that order could not be construed into a contempt, and without a contempt there could be no remedy by attachment. Although the defendant in this case had not paid the costs, having struck out the plea, such conduct only amounted to a breach of promise, but not to a contempt. If the defendant had given an undertaking to pay these costs absolutely, the case might have been different; no undertaking had been given, and therefore no remedy by attachment could exist. In support of the rule it was contended, that as the defendant had struck out the plea, and thus obtained all the advantage accruing from the Judge's order, he ought to pay the costs; and if he did not, and could not be compelled by this means, great injustice would be done to the plaintiff. Taunton, J., was of opinion, that as the order here was only conditional, the plaintiff was not entitled to his remedy by attachment. Rule discharged, without costs. Rex v. Fenn, T. T. 1833, K. B. P. C. SCI. FA.-BAIL.-JUDGMENT. What steps must be taken before judgment can be signed on a sci. fa. against bail. On application to sign judgment on a sci. fa. against bail, it appeared from the affidavit on which the motion was founded, that the proceedings had been regular, and the sci. fu. returned nihil. It also appeared that the bail were resident out of the county of Middlesex. ADMISSION OF ATTORNEY.-ARREARS OF DUTY. Where an attorney may be re-admitted without payment of arrears of duty or fine. On an application to re-admit an attorney, the affidavit produced stated, that the applicant had been regularly admitted, and continued to take out his certificate for several years; but that from circumstances which had taken place, he had ceased for some time to take out his certificate. During this latter period he had ceased to practise; and the application now made was, that he might be readmitted without payment of fine, or arrears of duty. Taunton, J., granted the application, and directed that he should be re admitted without payment of fine or arrears of duty. Rule granted.-Ex parte Thompson, T. T. 1833, K. B. P. C. If an agent of an attorney misconducts himself, the remedy of the client is against the attorney, and not against the agent. An application was made on the part of a client against the agent of his attorney, for the purpose of compelling the agent to pay over a sum of money which it was alleged had come wrongfully into his hands. Taunton, J., refused to interfere, on the ground that there was no privity between the client and the agent; and observed, that if the agent mis-conducted himself, and any injury accrued to the client, the remedy of the latter was against the attorney. Rule refused.-Ex parte Smith, T. T. 1833, K. B. P. C. a A different construction of the statute at one time prevailed from that which is recognized by the above case; and it was usual for the Court in all such cases to require the payment of the duty in arrear, notwithstanding the party had ceased to practise since the expiration of his certificate. The practice has however on different occasions varied; but the above decision is in conformity with the present fixed practice of the Courts. Afterwards, that is to say, on the 1833, [stating the day of pro 415 demise, all actions of covenant or debt upon INFANT.-MARRIAGE. P. 400. "Al day of trial,] before me E. F., Esq., Sheriff of the county of , according to the form of the statute in such case made and 1. In Starkie on Evidence, p. 724, Part 4, vided, came as well the within named A. B.I find the following answer to O. P. Q. as the said C. D., by their respective at-him, except for necessaries, yet he may take though the promise of an infant will not bind torneys, and a jury being chosen tried and sworn, as within commanded, the same jury upon their oath say," &c. [as in the present cases]. ANSWERS TO QUERIES. Practice. advantage of any promise made to him, al- 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 promise made by him during infancy; for such an action must be laid in assumpsit, wherein the plea of infancy is a defence. It is observable also, that if the plaintiff reply that the defendant ratified his promise after he came of age, such ratification must be in writing, by 9 Geo. 4. (Lord Tenterden's act). J. S. PRACTICE. COSTS. 2 W. 4. c. 39. §11. p. 400. The act 2 W. 4. c. 39. § 11, renders the days between the 10th August and 24th October, with regard to the filing and delivery of de3. 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 first is bound by the contract, and on the side between the above mentioned days. 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, tained for a similar breach of the contract on recover damages: but no action can be mainI conceive, for instructions for declaration. the side of the minor. Bruce v. Warwick, 2 M. & S. 205; 6 Taunt. 118. W. D. If an E. SATISFACTION ON JUDGMENT. P. 400. Law of Attorneys. COSTS.- -UNQUALIFIED ATTORNEY. If the action is in the Common Pleas, a warrant of attorney is necessary; see Impey's Prac. C. P. "Satisfaction;" but in the Exchequer or King's Bench, it may be done by the attorney on the record signing a satisfac-law of unqualified attorneys practising in the tion piece; but if plaintiff's attorney demands, Exchequer, in Vol. 6, No. 156, p. 278, of the he has the right to enter the satisfaction, and Legal Observer, where he will find the best the defendant must pay his costs, which decisions on the subject I am aware of. amount on taxation to about 47. 10s. Common Law. C. G. W. 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 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 atI cannot answer your correspondent" Stu-torney be appointed. But an attorney admitdent," 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 adDecember next, no arrears of rent shall be mitted and certificated attorney; but such perrecovered by any distress, action, or suit, but mission must be in writing, and the proceedwithin six years next after the same shall have ings must all appear in the name of the latter. become due," &c. See sect. 1 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. Practice. Queries.-Editor's Letter Box. BVIDENCE.-DAY.PERJURY. of A.'s witness. A verdict was then taken by consent. Was the evidence aforesaid sufficient to establish a conversion, the same being a qualified refusal? See 1 Esp. R. 83; 2 Buls. 247; 1 Camp. 409. And has the Court power to infer a conversion; or must it not, in all cases, be found by the jury? See 2 Mod. 242; 10 Coke, 57; 2 Roll. Abr. 693; 1 T R. 478; Hob. 181. And provided the above did not amount to a conversion, ought there not to be a new trial without the payment of costs, or A. * should a nonsuit be entered? 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 possessed of the goods, and being so possessed on the day and year last aforesaid, lost the said goods. On the trial of the cause the plaintiff's witness swore that it was on the 5th, and the counsel in his speech to the jury stated it to be on that day that defendants went to plaintiff's house and induced him to deposit them. Now, as it was on the 4th of May, could the defendants be relieved in any way? and will it amount to perjury in the witness, especially as the whole of his evidence was altogether maliciously false, or will the day be considered immaterial, and a mere error on the part of the witness? Common Law. PAWNBROKERS. * A. * PARISH REGISTRY.-STAMP. Some clergymen refuse to give a marriage certificate except on a stamp. In the last act relating to parish registry, 52 G. 3. c. 146, it is stated that no stamp shall be necessary on any certificate; but the last Stamp Act, 55 Ĝ. 3. c. 184, requires a certificate of marriage (excepting soldiers, sailors, and marines,) to have 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 clergyman 12th of August in the present year. The pawn-legally refuse to give a certificate unstamped? CLERICUS. broker refused giving up the article, stating as a reason, that the year having expired the article was forfeited. It will be observed that the year expired on the night of the 11th of August; but that being Sunday, the pawner could not apply on that day for the pledge, but on the following morning, Monday, applied to redeem the pledge, but the pawnbroker refused to give Under the circumit up for the above reason. stances, was not the pawner in time? TITHE COMPOSITION. H. H. A parson of a parish enters into an agreement with the occupiers of the land for retaining their tithes; can an action be maintained for not setting out the tithe until such agreement is determined? and what is the requisite notice from the parson to the occupiers of the land, for the determination of the composition? DEPOSIT.-TROVER.-CONVERSION. W. Law of Property and Canveyancing. PURCHASE BY CORPORATOR. The burgesses belonging to the corporation of the town and county of S., are possessed of considerable freehold property. Looking at the corporators in the light of trustees for the same town, have they the power to sell any of their freeholds to one of their own body, so as J. P. to make a legal title to him? THE EDITOR'S LETTER BOX. Part II. of the "Commentaries on the New Statutes," effecting Alterations in the Law, will be published on Saturday the 5th October, containing the Dower, Inheritance, and Fines and Recoveries Acts, with the Forms rendered necessary by the Alterations, price 2s. The First Part, containing the Limitation of Actions Act, and the Law Amendment Act, may be obtained at the Publisher's, price 3s. The Third Part will be published before the Term. We shall be happy to afford the earliest attention in our power to J. W., on the two subjects on which he has addressed several communications, and it may be well to keep alive the attention of the public by an occasional notice; but some of the details may well be reserved until the approach of the next Parlia 4. deposited goods with B., on the 4th of May. On the 14th, A. made a personal demand on B. for a return of the goods, when B. returned for answer the following qualified refusal: "I shall refuse to deliver them up unless you pay me the money due to me, and for which they were deposited, for six weeks." An action in trover was immediately commenced, and on the trial, a witness swore that the goods were obtained from 4. by B. under threats of violent proceedings; and another witness proved the above refusal. The Judgement. The Queries and Answers of S.; C. G. W.; would not, therefore, allow the defence to be entered upon; and as B. was taken by sur-J. S.; E.; Anon.; W. D.; T. M.; E.J. prise, he had no witness to rebut the evidence Subscriber;" and J. K., shall be attended to. A |