But this action cannot be maintained, if the tithe has not been duly set out; e. g. if the tithe of wheat has been set out in shocks or riders as they are termed in the north of England, instead of being set out in the sheaf as the common law requires or if the tithe of hay has been set out in the swath, instead of being set out in the cock; or if it be set out in grass cocks without having been tedded. In an action against the defendant for neglecting to take away the tithes of hay from the plaintiff's ground after the same had been duly set out, and notice given to defendant, by the plaintiff, it appeared in evidence, that the tithes were set out from the swath into grass cocks, without any tedding or making of the same; whereupon Heath, J. non-suited the plaintiff, on the ground that the plaintiff ought first to have tedded the grass. On motion to set aside the non-suit, the court of B. R. were of opinion, that Heath, J. had correctly laid down at the trial the common law principle as applied to this case; Lord Ellenborough, C. J. observing, "the rule is for the rector to take his tenth part in that first convenient stage of the process, when the subject matter may be equally divided, and that is when it is put into grass cocks in the common process of hay-making: and it is agreed on all hands, that the usual course is for the grass to be tedded after it is cut, before it is made into grass cocks. This may possibly not be necessary under extraordinary circumstances of weather; but where that is so, it ought to be shewn. Le Blanc, J. added, that the subject matter was not in a proper state to be tithed, until it came into grass cocks, in the ordinary course of the process of making it into hay; that is, by first turning over the swath, after it has been cut, that the under side may be exposed to the action of the sun and air, which he took to be tedding it; and in that state only (he did not speak of extraordinary cases,) can it properly be put in grass cocks. The same rule of law had been recognized in Blaney v. Whitaker, B. R. M. 23 Geo. 3. That was an ac tion on the case against the parson for not taking away the tithe of turnips after they had been set out. The turnips had been drawn to feed cattle, and every tenth turnip was thrown aside as drawn, on a ridge opposite, for the parson. f Shallcross v. Jowle, 13 East, 261. h Newman v. Morgan, 10 East, 5. adm. per Ld. Kenyon, C. J. 8 T. R. 76.; but he cannot justify turning in his cattle on the land, and thereby consuming the tithe. Williams v. Ladner, 8 T. R. 72. The question was, whether the tithe were properly set out? the parson contending, that the turnips ought to be set out in heaps, or at least gathered into heaps for him. Mr. Justice Ashhurst said, that in hay and corn, the farmer must put it into cocks and sheaves for his own benefit, and therefore he shall do the same for the parson; but that a man was not obliged to bestow more labour than the nature of the thing required for the benefit of the parson: and that this agreed with the cases. Mr. Justice Buller said, that he entirely agreed with his brother Ashhurst. That if the farmer put them into heaps for himself, he should do so for the parson; but if he did not do so for himself, he need not do so for the parson. That the rule of law was, that things should be tithed as soon as they were in a proper state to be tithed; the same was the case with hay and corn. In a subsequent case of Halliwell, Clk. v. Trappes, C. B. Trin. 49 G. 3. 2 Taunt. 55. from York assizes, it appeared, that on the same day on which the grass was cut, the owner tedded it abroad, and on collecting it together again into what were in that country called lap-cocks or foot-cocks, he set out every tenth cock. It was admitted, that the grass in that state was not fit to put into a stack, it was neither hay nor grass; and when the land-owner's hay was again spread out, there was not room for the tithe owner to spread out his tithe to dry without treading on the hay of the land-owner: as much space, however, was left for spreading out the tithe as the ground that the tithe had grown upon. It was holden by Lawrence, J. at the assizes, and afterwards by the court, that the tithe was duly set out. It was adjudged also in the same case that the common law mode of setting out the tithe of corn is in the sheaf, and not in the shock1. There is another general rule on this subject which ought to be mentioned, viz. that the tithe ought to be so set out, and the nine parts left so long that the parson may have an opportunity of judging by the view, whether the tithe is fairly set out or not* (8). Corn must be tithed in the first conve→ Shallcross v. Jowle, B. R. H. 51 G.3. k Admitted per Cur. in Halliwell v. 13 East, 201. S. P. Trappes, 2 Tauut. 59. (8) The same point was adverted to in Shallcross v. Jowle, where it seemed to be the opinion of the court, that after the land-owner had set apart the tenth sheaf, he ought to allow the remaining nine sheaves to remain on the ground a convenient time before he put them into shocks, in order that the tithe-owner might have an opportunity of judging whether his tithe had been fairly set out. nient state in which the tithe can be collected after the corn is cut, which is in sheaves; and if the farmer adopt any mode of tithing, which excludes or abridges the due means of the parson's comparing the tenth sheaf with the other nine, it is bad. The common law does not require any notice to the parson of tithe being intended to be set out, either of predial tithes, or of animals'; but there may be a special custom requiring such a notice", and notice should be given of tithe having been set out previously to bringing an action for not removing it. II. By whom and against whom an Action for a Nusance may be maintained. If the nusance be to the damage of the reversionary as well as the possessory interest, an action may be brought as well by the reversioner as by the tenant in possession, and each will be entitled to recover damages commensurate with the injuries, which their respective interests may have sustained. If the house, &c. affected by the nusance be aliened, the alienee, after request made to remove or abate the nusance, may maintain an action for the nusance". Tenants in common may join in an action to recover damages for a nusance, which concerns the tenements which they hold in common. The action may be maintained against the person who erects the nusance, or his alienee, who permits the nusance to be continued. If the party, against whom a verdict in an action of this kind has been recovered, does not abate the nusance, another action may be brought for continuing the nusance, in which the jury will be directed to give large damages. N. It is usual, in the first action, to give nominal 11Rol. Abr. 643. tit Dismes (X.) pl. 1. Body v. Johnson, Clerk, Somerset Summ. Assizes, 1815, Dampier, J. S. P. N. This was an action against the defendant for not taking away the title of lambs and calves, after the plaintiff bad set them out. Verdict for plaintiff 1s. for lambs, 1s. for calves. See also Kemp v. Filewood, m Butter v. Heathby, 3 Burr. 1891. p Penruddock's Case, 5 Rep. 101. a. damages only, which, however, entitle the plaintiff to full costs. Tenant for years erected a nusance', and afterwards made an under-lease to I. S. The question was, whether, after a recovery against the first tenant for years for the erection, an action would lie against him for the continuance, after he had made an under-lease? Et per cur. it lies; for he transferred it with the original wrong, and his demise affirms the continuance of it: he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. Vide Wm. Jones, 272. Receipt of rent is upholding. Cro. Jac. 373. 555. The action lies against either at the plaintiff's election. Case lies against the landlord of a house demised by lease, who, under his contract with his tenants employs workmen to repair the house, for a nusance in the house occasioned by the negligence of his workmen'. III. Evidence, &c. THE plaintiff must be prepared to prove his possession of the land, house, &c. affected by the nusance, and the continuance or erection of the nusance by the defendant, as the circumstances of the case may require, and also the injury thereby sustained. Where the plaintiff complains of an injury to an easement', it will be incumbent on him (unless he can shew an express grant) to carry his evidence of the condition of the land, &c. and the enjoyment of the right, as far back as possible, in order to raise a presumption of right by grant or prescription. This action being local in its nature, the nusance must be proved to have been committed in the county where the venue is laid". But it is not necessary that the_gravamen should be described with any local certainty. It is sufficient if the declaration point out the gravamen with certainty enough to enable the defendant to have notice of it. r Rosewell v. Prior, Salk. 460. u Warrel v. Webb, 1 Taunt, R. 379. x Mersey and Irwell Navigation v. Douglas, 2 East, 497. See also Jefferies v. Duncombe, 11 East, 220. The general issue to an action for a nusance is, not guilty, under which every thing that shews that the defendant did what he lawfully might do, may be given in evidence (9). Hence the defendant may prove that the plaintiff gave him leave to do the act which occasioned the nusance, and that it was done under that permission; for a licence executed is not countermandable, y Winter v. Brockwell, 8 East, 308. (9)" Evidence upon the general issue has of late been allowed in many cases, which in former times would not have been admitted," Per King, C. J, Anon. C. B. E. 4 Geo. 1. Comyns' R. 274; |