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situ; but it was holdenm, that there was an executed delivery, and that the plaintiff having given notice to the defendants, that I. S. had sold the property to him, and his then marking it as his own, made an end of the transit, and the defendants could no longer retain or stop the timber. Lord Ellenborough, C. J. observed in this case, that the change of mark from A. to B. on bales of goods in a warehouse, had been holden by the House of Lords, in a late case, to operate as an actual delivery of the goods. Where goods are delivered to a vendee at a wharf, who afterwards ships them there, no subsequent stoppage of the goods in transitu can take place.

4. How far the Negotiation of the Bill of Lading may tend to defeat the Right of stopping in Transitu.-Where the property in goods has passed to a vendee, subject only to be divested by the vendor's right to stop them while in transitu, such right must be exercised, if at all, before the vendee has parted with the property to another for a valuable consideration, bona fide, and by indorsement of the bill of lading (without notice of such circumstances as render the bill of lading not fairly and honestly assignable,) has given him a right to recover them°; for the indorsement of a bill of lading for a valuable consideration, and without notice to the indorsee of a better title, passes the property. The legal title, however of the indorsee of a bill of lading, may be impeached on the ground of fraud P; but the mere circumstance of the indorsee knowing at the time when the bill of lading was indorsed and delivered to him, that the consignor had not received money-payment for his goods, but had only taken the consignee's acceptances, payable at a future day not then arrived, is not sufficient to invalidate the title of the indorsee, in a case where the absence of fraud and mala fides is found¶. Where the vendor's legal right of stopping in transitu had been determined by the indorsement of the bill of lading, but such transfer had been made only as a security for advances made by the indorsee, it was holden', upon reference to an arbitrator, that in a court of equity, such transfer would be treated as a pledge or mortgage only, and that the vendor had an equitable quasi right of stoppage in transitu, subject to the

m Stoveld v. Hughes, 14 East, 308.
n Noble v. Adams, 7 Taunt. 59.
o Lickbarrow v. Mason, 2 T. R. 63.
See the argument of Buller, J. 6 East,
21. n.

p Wright v. Campbell, 4 Burr. 2046.
Salomons v. Nisson, 2 T. R. 674.

q Cuming v. Brown, 9 East, 506. See further on this subject, Coxe v. Harden, 4 East, 211. Waring v. Cox, 1 Campb. 369. and Barrow v. Coles, 3 Campb. 92.

r In re Westzinthus, 5 B. & Ad. 817; 2 Nev. & M. 644.

previous right of the indorsee to be repaid his advances. A. being indebted to B. on the balance of accounts, including bills of exchange still running, accepted by B. for A., consigned goods to B. on account of this balance. It was holden, that A. was not entitled to stop the goods in transitu, upon B. becoming insolvent before the bills were paid; because the goods being consigned to B. on account of the balance which then existed in B.'s favour, the property vested in B. absolutely. So if the purchaser of goods to be paid by bill, after giving his acceptance, during the time of credit, and while the goods are in transitu, sells them to a third person for a valuable consideration, without transferring any bill of lading to him, the right of the original vendor to stop the goods in transitu is taken awayt. By the usage of trade, West India Dock warrants" indorsed, bona fide, and for good consideration, transfer the property in the goods, like a bill of lading, and prevent the exercise of the right of stopping in transitu. A., by contract, sold to B. a quantity of tallow then lying at a wharf, at so much per cwt.; and on the same day gave a written order upon the wharfinger to weigh, deliver, transfer, and rehouse the same. B., having entered into a contract to sell tallow to C., obtained from the wharfingers, and gave to C., a written acknowledgment that they had transferred the tallow to the account of C., and that C. was to be liable to charges from a given date. B. having stopped payment, A. gave notice to the wharfingers not to deliver the tallow to B.'s order: it was holden, in an action of trover by C. against the wharfingers, that after their acknowledgment, they held the tallow as agents of C., and that they could not therefore set up as a defence a right in A. to stop it in transitu. But the delivery of a shipping note by the consignee of goods to a third person, with an order to the wharfinger to deliver the goods to such third person, does not pass the property in them so as to prevent a stoppage in transitu by the consignory. The unpaid vendor of goods remaining in his own warehouse rent-free, may stop them in transitu, although he has given the vendee a delivery order, under which part of the goods have been removed. This was the case of pipes of wine at Liverpool.

s Vertue v. Jewel, 4 Campb. 31.
t Davis v. Reynolds, 4 Campb. 267.
u Zwinger v. Samuda, Holt, N. P. C.
395. per Park, J. but see the case in
banc. 7 Taunt. 265. and Lucas v.
Dorrien, 7 Taunt. 278.

x Hawes v. Watson, 2 B. & C. 540.

y Akerman v. Humphrey, 1 C. and P. 53. recognized by Park, J. delivering judgment in Tucker v. Humphrey,* 4 Bingh. 522, 3.

z Townley v. Crump, 5 Nev. & M. 606. 4 Ad. & Ell. 58.

CHAP. XXXVIII.

TITHES.

I. Definition. Of the Remedies in the Common Law Courts for the Recovery of Tithes, or the Value thereof.

II. Debt on Stat. 2 & 3 Edw. 6. c. 13. for not setting out Tithes. Of the Provisions of the Statute, and the Construction thereof.-Of the Persons to whom Tithes are due.-Of the Persons by whom and against whom an Action on the Statute may be brought.-Of the Declaration.-Pleadings, and herein of the Statutes of Limitation.- Evidence.-Verdict.-Costs.Judgment.

III. Of the Stat. 6 & 7 W. 4. c. 71, for the Commutation of Tithes, in England and Wales, amended by Stat. 7 W. 4. and 1 Vict. c. 69.

I. Definition. Of the Remedies in the Common Law Courts for the Recovery of Tithes, or the Value thereof.

DEFINITION-TITHES are a tenth part of the annual increase of land, or of beasts, &c. on the land, and of the labour and industry of the occupier, payable to the parson of the parish for his maintenance. They are an incorporeal ecclesiastical inheritance, collateral to the estate of the landa. For small quantities involuntarily left in the process of raking, tithe is not payable; otherwise, if there be any particular

a 11 Rep. 13. b.

fraud or intention to deprive the parson of his full right. The parson's right is to a tenth of the corn, to be taken generally, when it comes to such a state or stage as that the parson may see he has his fair tenth. As to the time of the introduction of tithes into England, and their being claimed as a civil right, with the history of them before their legal establishment, see Selden's History of Tithes. Before the stat. 32 H. 8. c. 7, an action for tithes could not have been maintained in the temporal courts; but by the 7th section of that statute it is enacted, "that any persons having an estate of inheritance, freehold, term, or interest in tithes, and being disseised, or otherwise kept or put out of possession thereof, shall have such remedy in the temporal courts for recovering the same as the case may require, in like manner as they may for lands, tenements, and other hereditaments." By force of this statute, tithes have at this day all the incidents belonging to temporal inheritances. Hence an ejectment may be maintained for tithes. Where the person

entitled to tithes agrees by parol with the occupiers of the land that they shall hold the lands discharged of tithes for a certain time, or during the life of the tithe-owner, in consideration of the payment of a certain sum annually, an action of indebitatus assumpsit may be maintained by the titheowner, against the occupier, for the non-payment of the sum agreed on. In order to support this action, the plaintiff must prove the occupation of the defendant, the agreement, and the retainer of the tithes under that agreement. To this action the defendant cannot set up as a defence, that the plaintiff was simoniacally presentede. Tithes being an incorporeal hereditament cannot pass by parol, but by deed only. Hence where by an instrument, not under seal, A. agreed to let to B. on lease, the rectory of L. and the tithes arising from the lands in the parish of L., and also a messuage used as a homestead for collecting the tithes, at the yearly rent of £200; and the rent being in arrear A. distrained, whereupon B. brought trespass; it was holden, that the distress was altogether unlawful, because the agreement not being under seal, it did not operate as a demise of the tithes, and consequently there was no valid demise of the whole subject matter, nor was there any distinct rent reserved for that part of the subject matter, viz. the homestead for which there might have been a legal distress.

b Per cur. Glanvill v. Stacey, 6 B. & C. 543.

c Priest v. Wood, Cro. Car. 301.

d Peake's Evid. 411. ed. 2d.

e Brooksby v. Watts, 2 Marsh. 38. 6 Taunt. 333. S. C.

f Gardiner v. Williamson, 2 B. & Ad.

336.

By stat. 7 & 8 W. 3. c. 6, (made perpetual by stat. 3 & 4 Ann. c. 18. s. 1. and amended by stat. 7 Geo. 4. c. 15.) a summary method of proceeding before two J. P. is prescribed for recovering small tithes under the value of 40s. (1) But this statute contains a provisos, that if the party complained of shall insist before the J. P. upon any prescription, composition, modus, agreement, or title, and deliver the same in writing to the J. P. subscribed by him or her, and shall give security to the complainant to pay such costs as, upon a trial at law, shall be given against him, in case the prescription, &c. be not allowed, then the J. P. shall forbear to give judgment, and the complainant may prosecute the adverse party for the subtraction of tithe in any court, as before this act. The 9th section directs the judgment given by virtue of this statute to be enrolled at the next general quarter sessions, and after enrolment, and satisfaction made, the judgment shall be a bar to conclude the party entitled to the tithes from any other remedy. And by stat. 53 G. 3. c. 127. s. 4, the jurisdiction of the said justices was extended to all tithes, oblations, and compositions subtracted or withheld, where the same should not exceed £10 from any one person; and by stat. 5 & 6 W. 4. c. 74, "for the more easy recovery of tithes," s. 1, it is enacted that proceedings for the recovery of any tithes, &c. under the yearly value of £10 (except in the case of quakers,) shall be had only under the powers of the two foregoing acts; with a proviso, that nothing in this act contained shall extend to any case in which actual title to any tithe, &c. shall be bonâ fide in question. And by stat. 7 & 8 W. 3. c. 34, (made perpetual and extended to all customary payments belonging to any church or chapel by 1 Geo. 1. stat. 2. c. 6.) the like remedy is extended to all tithes due from quakers, and two J. P. are empowered to ascertain what is due, and to order payment, so as the sum ordered does not exceed £10, extended to £50 by stat. 53 G. 3. c. 127. s. 6. These statutes were made in favourh to, and for the ease and g S. 8. h See R. v. Wakefild, 1 Burr. 487, Burn's J. tit. Tithes, S. C.

(1) As to the principle of the stat. 7 & 8 W. 3. c. 6, it is clear that this act was intended to apply only to those cases in which the tithes are actually due, independently of any dispute upon matters of law, either with regard to the person receiving them, or the manner of receiving them. The object of it was to give to the owner of tithes an expeditious mode of recovering them, &c. &c. By Abbott, C. J. in R. v. Jeffery, 2 Dow. and Ry. 860.

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