Shapcott v Mugford
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | High Court |
English Reports Citation: 91 E.R. 1021
COURTS OF KING'S BENCH AND COMMON PLEAS
shapcott vers. mugford. Intr. Trin. 8 Will. 3, C. B. Rot. 1091. Cook. Case lies against the proprietor of tithes for not taking them away, and the plaintiff may declare with a per quod the grass did riot grow where the tithes lay, and he could not put his cattle into the close to depasture the residue of the grass, lest they should hurt the tithes. Case. The plaintiff declares, that he was possessed of divers closes in B. which he sowed with corn, and when it was ripe, he reaped it, and made it into sheaves, and duly severed the tithes thereof from the other nine parts; that the defendant was proprietor of the tithes; that the plaintiff'required the defendant to take away the tithes off his land, but that the defendant did not take them away in convenient time, but suffered them to continue there upon the land from [188] the fourth of June 6 Will. 3, until the suing of this action ; per quod per totam tempus prsedictam the grass did not grow where the corn ky, and the plaintiff lost the benefit of the residue of the grass in that close, because he could not depasture his cattle, for fear of doing damage to the corn. Nob guilty pleaded. Verdict for the plaintiff and intire damages given. Serjeant Gould moved in arrest of judgment, that the action will not Tie, because the plaintiff might have prevented any injury which this corn could do him. For as soon as the tithes are duly severed, the property of them is vested in the parson ; Then if upon notice he does not carry them away, they may be distrained as damage feasant, or trespass will lie against him. As where an executor does not remove the goods of the testator in convenient time after his death, the owner of the house, where they are, may have trespass against him. Cro. Jac. 204, Stodden v. Harvey. Then when the law has prescribed a remedy, the party must be content with it, and shall not have any other. And therefore in thia Court in a case between Thornton and Austen, intr. Hil. 4 & 5 Will. & Mar. C. B. Rot. 1051, the plaintiff brought case against the defendant, and declared that he was possessed of a close, and the defendant dug pits in it, &c. per quod, &c. and after verdict for the plaintiff it was adjudged, that the action will not lie; because the cause of action was properly trespass, for which the party might have an action of trespass, but could not turn it into an action upon the...
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