stranger affect the relative positions of the parties to this record on that day?

ence.

WILLES, J.-I am of opinion that the rule to enter a nonsuit should be made absolute. The horse in question had belonged to the plaintiff's nephew, John Felthouse. In December, 1860, a conversation took place between the plaintiff and his nephew relative to the purchase of the horse by the former. The uncle seems to have thought that he had on that occasion bought the horse for 30%, the nephew that he had sold it for 30 guineas: but there was clearly no complete bargain at that time. On the 1st of January, 1861, the nephew writes, "I saw my father on Saturday. He told me that you considered you had bought the horse for 301. If so, you are labouring under a mistake, for, 30 guineas was the price I put upon him, and you never heard me say less. When you said you would have him, I considered you were aware of the price." To this the uncle replies on the following day,-"Your price, I admit, was 30 guineas. I offered 301.; never offered more: and you said the horse was mine. However, as there may be a mistake about him, I will split the differIf I hear no more about him, I consider the horse mine at 307. 15s." It is clear that there was no complete bargain on the 2d of January and it is also clear that the uncle had no right to impose upon the nephew a sale of his horse for 301. 158. unless he chose to comply with the condition of writing to repudiate the offer. The nephew might, no doubt, have bound his uncle to the bargain [*876 by writing to him: the uncle might also have retracted his offer at any time before acceptance. It stood an open offer: and so things remained until the 25th of February, when the nephew was about to sell his farming stock by auction. The horse in question being catalogued with the rest of the stock, the auctioneer (the defendant) was told that it was already sold. It is clear, therefore, that the nephew in his own mind intended his uncle to have the horse at the price which he (the uncle) had named,-301. 15s.: but he had not communicated such his intention to his uncle, or done anything to bind himself. Nothing, therefore, had been done to vest the property in the horse in the plaintiff down to the 25th of February, when the horse was sold by the defendant. It appears to me, that, independ ently of the subsequent letters, there had been no bargain to pass the property in the horse to the plaintiff, and therefore that he had no right to complain of the sale. Then, what is the effect of the subsequent correspondence? The letter of the auctioneer amounts to nothing. The more important letter is that of the nephew, of the 27th of February, which is relied on as showing that he intended to accept and did accept the terms offered by his uncle's letter of the 2d of January. That letter, however, may be treated either as an acceptance then for the first time made by him, or as a memorandum of a bargain complete before the 25th of February, sufficient within the Statute of Frauds. It seems to me that the former is the more likely construction: and, if so, it is clear that the plaintiff cannot

But, assuming that there had been a complete parol bargain before the 25th of February, and that the letter of the 27th was a mere expression of the terms of that prior bargain, and not a bargain

then for the first time concluded, it would be directly *contrary

*877] to the decision of the Court of Exchequer in Stockdale v. Dunlop, 6 M. & W. 224,† to hold that that acceptance had relation back to the previous offer so as to bind third persons in respect of a dealing with the property by them in the interim. In that case, Messrs. H. & Co., being the owners of two ships, called the Antelope and the Maria, trading to the coast of Africa, and which were then expected to arrive in Liverpool with cargoes of palm-oil, agreed verbally to sell the plaintiffs two hundred tons of oil,-one hundred tons to arrive by the Antelope, and one hundred tons by the Maria. The Antelope did afterwards arrive with one hundred tons of oil on board, which were delivered by H. & Co. to the plaintiffs. The Maria, having fifty tons of oil on board, was lost by perils of the sea. The plaintiffs having insured the oil on board the Maria, together with their expected profits thereon,-it was held that they had no insurable interest, as the contract they had entered into with H. & Co., being verbal only, was incapable of being enforced.

BYLES, J.-I am of the same opinion, and have nothing to add to what has fallen from my Brother Willes.

KEATING, J.—I am of the same opinion. Had the question arisen as between the uncle and the nephew, there would probably have been some difficulty. But, as between the uncle and the auctioneer, the only question we have to consider, is, whether the horse was the property of the plaintiff at the time of the sale on the 25th of Febru ary. It seems to me that nothing had been done at that time to pass the property out of the nephew and vest it in the plaintiff. A proposal had been made, but there had before that day been no acceptance binding the nephew.

*WILLES, J.-Coats v. Chaplin, 3 Q. B. 483 (E. C. L. R. vol. *878] 43), 2 Gale & D. 552, is an authority to show that John Felthouse might have had a remedy against the auctioneer. There, the traveller of Morrisons, tradesmen in London, verbally ordered goods for Morrisons of the plaintiffs, manufacturers at Paisley. No order was given as to sending the goods. The plaintiffs gave them to the defendants, carriers, directed to Morrisons, to be taken to them, and also sent an invoice by post to Morrisons, who received it. The goods having been lost by the defendants' negligence, and not delivered to Morrisons, it was held that the defendants were liable to the plaintiffs. Rule absolute.

END OF HILARY VACATION.

ADDITIONAL CASES

FROM

CONTEMPORANEOUS REPORTS.

Re WINTRINGHAM TITHES, Ex parte LORD CARRINGTON. May 9, 1862.(a)

By a private Act of Parliament, passed in 1762, for carrying into effect an agreement between the landowner and rector for the commutation of tithes on certain lands in the parish of W., it was declared that certain rents therein specified should be vested in the rector, in lieu of and as full compensation for all tithes of corn, grain, hay, wool, lamb, and all other tithes whatsoever, except as after mentioned, arising from all or any of the lands in the said parish, save and except marriage, churching, and burial fees, "provided that nothing in the Act should prejudice the right of the said rector, or his successors, to any marriage, churcbing, or burial fees, nor the right of tithes and customary stocking" in certain specified lands, "the modus in the Groves and Ancient Closes adjoining to the town, and all other petty and personal tithes not herein mentioned and relinquished, all which the said rector reserves, and they are hereby reserved to him and his successors in full right and in as ample manner as they have always been enjoyed." The Assistant Tithe Commissioner having decided that the said lands, called the Ancient Closes," were not exempt from tithes,-Held, on motion for a prohibition, that the tithes of "the Ancient Closes" were not commuted or extinguished by the private Act of 1762, and therefore the jurisdiction of the Commissioners was not taken away by section 90 of the Tithe Commutation Act, 6 & 7 W. 4, c. 71.

Semble-that, even if the tithes of wool and lamb were not included in the modus reserved to the rector, and were, therefore, extinguished by the Act of 1762, such partial extinguishment of tithes arising out of the lands would not satisfy section 90, so as to deprive the Commissioners of jurisdiction.

IN this case a rule had been obtained, on the part of Lord Carring ton, as the owner of certain lands in the parish of Wintringham, Lincolnshire, called the Ancient Closes, calling on the Tithe Commissioners to show cause why a prohibition should not issue to restrain them from proceeding with the commutation of tithes payable out of such lands.

The rule was obtained on the ground that the Tithe Commissioners. had no jurisdiction, as the tithes in respect of these lands had been extinguished, or commuted, by a private Act of Parliament, and section 90 of the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, exempts from the operation of that Act "any lands or tenements the tithes whereof shall have been already perpetually commuted or extinguished under any Act of Parliament." The private Act relied on by Lord Carrington was an Act passed in 1762, for giving effect to an agree ment therein recited as having been made between the Countess Dowager of Scarborough and the Earl of Scarborough, the then landowners, of the one part, and the Rev. Thomas Adam, the then rector,

(a) 31 L. J. 274; 9 Jurist 277; 6 L. T. 820.

(879)

of the other part, by which certain lands were to be allotted to the rector, and certain rents were to be paid him annually in lieu of all the tithes, great and small, and of all the wool and lamb within the parish, except the meadow and pasture lands called the Composition, and the marsh, and of all right of common therein, except as thereinafter excepted. The first clause of the Act ratifies this agreement, and a subsequent clause, after declaring that the lands given to the rector are in satisfaction and compensation for all glebe lands and right of common whatsoever belonging to him or his successors, states that the annual rents are "to be vested in him in lieu of and as an equivalent and full satisfaction and compensation of and for all tithes and tenths of corn, grain, hay, wool, lamb, and all other tithes and payments whatsoever, excepting as herein before or after mentioned, growing, arising, renewing, or increasing out of or from all or any of the lands or grounds lying in the said parish of Wintringham, save and except marriage, churching, and burial fees, and other surplice fees." There is then the following proviso: "Provided always, that nothing in this Act contained shall prejudice the right of the said rector or his successors to any marriage, churching, or burial fees, or any other surplice fees, nor the right of tithes and customary stocking in the meadow grounds called the Composition, including the lands there embanked from the Humber, the right of tithes in the low pasture, the modus in the Groves and Ancient Closes adjoining to the town, and all other petty and personal tithes not therein mentioned and relinquished, all which the said Thomas Adam reserves, and they are hereby reserved to him and his successors in full right and in as ample manner as they have always been enjoyed."

66

By a subsequent Act of 1795 certain annual rents were made payable to the then rector in satisfaction of the tithes arising out of certain homesteads, gardens, and orchards in the parish of Wintringham, save and except," inter alia, "the mod uses as mentioned, expressed, and described in an Act of Parliament passed," &c. (giving the title of the Act of 1762), “in a place in the parish of Wintringham aforesaid, called the Groves, and the Ancient Closes adjoining the said town of Wintringham, and the usual and accustomed Easter offerings, marriages, churching of women, surplice fees, and mortuaries."

No evidence was given before the Assistant Tithe Commissioner of the payment of the modus, but Lord Carrington's agent set up a claim for exemption from tithes over the Ancient Closes by virtue of the said private Acts. It was also contended by him before the Commissioner, that as the modus had not been paid for thirty years the lands were exempt from the payment. The Assistant Cominissioner decided that there was no such exemption from tithes as claimed, and he made his award accordingly.

Manisty (F. M. White with him) showed cause against the rule, and contended that the tithes of the lands in question had not been extinguished by the Act of 1762, such lands being excepted by the proviso.

The Court called on

Bovill and Stephenson to support the rule.-They contended that the Tithe Commissioners had no jurisdiction, as all the tithes had been extinguished by the Act of 1762, and the only right reserved to the

rector was a right to a then existing modus, and that at all events there was exemption from tithes in respect of wool and lamb, and that the 90th section of 6 & 7 Will. 4, c. 71, applied to deprive the Commissioners of jurisdiction over so much as related to the tithes for lamb and wool. They cited Re Appledore, 8 Q. B. 139 (E. C. L. R. vol. 55), s. c. 17 Law J. Rep. N. S. Q. B. 59, Bunbury v. Fuller, 9 Exch. 111, s. c. 23 Law J. Rep. N. S. Exch. 29, and Flanders v. Bunbury, 9 Exch. 141,† note to Bunbury v. Fuller.

ERLE, C. J.-In this case a rule has been moved for, for a prohibition to the Tithe Commissioners, whose Assistant Commissioner has made a decision respecting the tithe of certain closes, called "the Ancient Closes," in the parish of Wintringham, and the ground relied on in support of the rule is, that the tithes of the Ancient Closes have been commuted or extinguished by an Act of Parliament, and that the Commissioners have, therefore, no jurisdiction, because section 90, of the Tithe Commutation Act, 6 & 7 Will. 4, c. 71, says that nothing in that Act contained shall extend to lands the tithes whereof have been commuted or extinguished under some Act of Parliament. Then, have the tithes of the Ancient Closes been commuted or extinguished under any Act of Parliament? It has been contended that the Act of 1762 has that operation. That Act carries into effect an agreement made between the landowner on the one side and the then rector of the parish on the other side, and which may be taken to be an agreement for a commutation and full satisfaction for all the tithes on certain lands of the parish, except as therein excepted. Then follows a proviso, "that nothing in this Act contained shall prejudice the right of the said rector" to the modus in the Ancient Closes. Now it seems to ine that the Act does not extinguish the tithes of the Ancient Closes. It reserves the right of the rector and creates no new modus. Then, is there a modus in respect of the Ancient Closes? Now, if a party is entitled to receive a modus in lieu of tithes the burthen of proof to establish the existence of the modus is cast on the party who claims the exemption from tithes by reason of the modus. In the present case, if Lord Carrington intended to rely upon the modus, it was, as it seems to me, for Lord Carrington to establish that the modus existed. No evidence, however, was offered on the subject; but Lord Carrington claimed that the closes had become absolutely exempt by reason of the Tithe Prescription Act, which says, if nothing has been paid in lieu of tithes for thirty years or sixty years the land shall be absolutely exempt. In my view of the Act of 1762 the applicant failed to establish that the tithes of the Ancient Closes were perpetually commuted or extinguished by that Act of Parliament. If so, the Tithe Commissioners had jurisdiction, and then, as no evidence was offered, the Assistant Tithe Commissioner had, as it seems to me, a right to come to the decision he came to, namely, that it was not proved before him that the lands were exempt by Act of Parliament. The only point for us to consider is the jurisdiction of the Commissioners. We have nothing to do with the correcting of the decision which has been come to with reference to the claim of Lord Carrington, that under the Tithe Prescription Act the lands had become exempt, because nothing had been paid for thirty years. I think the decision of the Commissioner was a limited decision, deciding that there was no