Young and Another, Assignees of Ireland v Timmins and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | Exchequer |
English Reports Citation: 148 E.R. 1446
Exchequer Division
S. C. 1 Tyr. 226; 9 L. J. Ex. (O. S.) 68. Overruled, Hitchcock v. Coker, 1837, 6 A. & E. 438; see Gravely v. Barnard, 1874, L. R. 18 Eq. 521.
On the point as to the promissory note, the Counsel for the plaintiffs were stopped by the Court.
7446 DOE V. ROE / C. & J. S29. The reason why I refer to these customs is, to shew that the payment of a specific calf as the seventh, eighth, or ninth, is not unreasonable ; for the ground insisted on by Mr. Curwood was, that, by paying a specific calf the farmer was enabled to practise fraud on the tithe-owner, and the titlae-owner was liable to be cheated by the conduct of the farmer. These modes of tithing, which were established to be good, are instances to chew that there is nothing unreasonable in such a manner of setting out tithe. COmyris, in his Digest, sets out a provincial canon, anno 1305, as to lambs, by which, if there be seven, septimus detur rectori, qui tres obolos solvat paroehiano ; si rector octavum recipit, det denarium si nonum, det obolum, ant expectet ad alium annum si malnerit, et tune habeat secundum ant tertium agnuni sequentis mull (Corn. Dig. Disuses, (H. 6)); but this part, says Comyns, of waiting till another year, is not according to the common law, which requires [329] an annual payment of tithes. It should seem, therefore, that Comytis approved of the residue of this canon, and considered it as agreeing with the common law of England. . Lastly, Mr. Eagle, in his Law of Tithes (vol. 1, p. 370), refers to a passage in &buns, also noticed in a curious reading upon the law of tithes in the possession of ray brother Bolland. This passage may, perhaps, reconcile every thing upon this subject : Decline, foetus in ordure nascendi cognoscitnr et decirno natus debetur si ver4 non appareat quis sit decimus, tune mediocris prwstetur." If you know which is the tenth, then that particular animal belongs to the parson, but if the tenth cannOt be ascertained, be is to have one of the ordinary quality. This, as it seems to me, is a plain intelligible rule. If the order in which they are born is ascertained, the tenth, and the tenth only, is the parson's right. If, from the closeness of the times at which different calves or other animals are dropped, or if, from other causes, it cannot be or is not ascertained which was the tenth, the parson shall have neither the best calf nor the worst, but one which may fairly be deemed an average calf. And this may, perhaps, reconcile the expressions of Sir Thomas Plurner in Beal-block v. Tyler (1 Jac, 566). In that case there were above thirty calves, and there was nothing to shew in what order they were born, There was no notice to the tithe-owner to specify which were his ; and all were sold a few days after their birth, Sir Thomas Plumer might well say, under these circumstances, that the tithe-owner was entitled to some three of them ; but until they were set out, he could not have a right to any three in particular. Upon the whole, therefore, we are of opinion that where the order of birth is ascertained, as it has been here, and the parson is immediately apprised which is his, so as to [330) remove all suspicion of unfairness, the tenth is the only calf to which he is entitled, and, consequently that the present action is inaintainable.against the defendant for not taking it away. Let it also be remembered, that, if what I have mentioned he the rule, and the farmer chooses, as he may, to dry nurse the other nine, the parson has this benefit, that he is entitled to the tithe-milk so soon as the calves are weaned. Rule discharged. DOE v. ROE. Exch. of Pleas. 1831. A notice at the foot of a declaration in ejectment, served before term, which omits to state the term in which the tenant is to appear, is sufficient, LS. C. 1 Tyr. 280 ; 9 L. J. Ex. (0. S.) 811 On motion for the common rule for judgment against the casual ejector, it appeared that the notice at the foot of the declaration, which was regularly served laifore the term, omitted to specify the term in which the tenant was to appear. BAYLEY, 3. The notice to appear generally, where the declaration is served before the term, cannot mislead, and is a sufficient notice to appear in the next term, Common rule granted (see Doe v. Graves, 2 Chit, Rep. 172). [331) YOUNG AND ANOTHER, Assignees of Ireland v. TIMMINS AND ANOTHER. Exam, of Pleas. 1831. By an agreement, reciting that A. B. and C. D. had for some time past employed, and then did employ E F. in executing the orders which they from time to time received ; and also reciting that A. B. and C. D. had requested E. F. to enter into an agreement to work in his trade or business, and to execute the orders of A. B. and C. D., in manufacturing and making goods in the way of his trade, for the said A. .11 and C. D. alone, to whieh.he had consented, in consideration of his past employment, and also, of the undertaking of A. B. and C. D. to continue to employ him as theretofore ; A. B. and C. D. agree with E. F., that they would, during the joint lives of themselves and E. F., continue to employ him in executing their orders as theretofore, and upon the like or other usual terms, subject nevertheless, to the provisoes arid agreements thereinafter mentioned ; and E. F. agreed with A. B. and C. D, that he would, during the joint lives of A. B. and C. D., work for and execute their orders for them as he had been accustomed in his trade or business, in a good and workmanlike mariner, and at general and proper prices or terms ; and that he would not at any time work for, or execute or cause to be executed, the orders of any person or persons whomsoever, in his trade or business, without the consent in writing of A. B. and C, D.., which consent should be necessary upon every distinct occasion, and should contain the address of the person or persons for whom be might thereby be permitted to be employed, and also the specific work which 'he was thereby permitted to perform : but it was provided and agreed, that irt case A. B. and C. D. should at any time be desirous to put air end to that agreement, and should give, or cause to be given, at least three months' notice iii writing to E. F., the agreement should be considered as at air end and determined : provided also, that in case the said A. Band C. D. should at any time have occasion or be under the necessity, by reason of the urgency or extent of orders, or should otherwise think tit, they should be at liberty to employ airy other person or persons to execute orders for them in the trade or business of E, F. ; and that, without thereby releasing E F. from his agreement therein' contained of exclusively working for the said A. B. and C. D. ; and it was provided that nothing therein contained should be taken to restrain or prevent E. F. from executing the orders of any person or persons residing inn the city of London, or within six miles thereof : ùfield, first, that this agreement, being inn partial restraint of trade, and riot having air adequate consideration! to support it, was void. Arid secondly, that a promissory note given by E. F. to A. B. and C. D. in consideration of breaches of the agreement, in working for other persons, was also void, and could not he set off by A. B. arid C. D. in an action against them, at the grit of the assignees of E. F. for work done. [S. C. I 7yr. 226 ; 9 L. J. Ex, (0. S.) 68. Overruled, Hitchcock v. Coker, 1831, 6 A. & E. 438; see Gravely v. Barnard, 1874, L. R. 18 Eq. 521.1 Assrrmpsit for work and labour, Sm., by the bankrupt. PleaùGeneral issue, with ootice of set-off on the promissory note stated below. The cause was referred, by order of Nisi Prius, to a barrister, who ordered a verdict to be entered for the defendants...
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