REVIEWING TAXATION
(AT LAW).

Where, in three actions brought by the same plaintiff against the same defendant, and referred to arbitration, the costs of the reference were awarded to be equally borne by the parties; and the Master, on taxation, allowed the defendant, as costs of reference, two distinct sums for the attendance, loss of time, and travelling expences of the same witnesses, in two different actions, and made no allowance to the plaintiff for a sum sworn to have been paid by him to the arbitrator as costs of the reference; a rule nisi for review. ing the taxation was discharged without costs-it not being alleged that the two former sums were allowed for attendance, &c. in one day; the latter sum not appearing in the plaintiff's bill produced before the Master; and no objection having been made at the taxation. Utting v. Evans, H. 4 & 5. G. 4.

SALE BY AUCTION.

See AMBASSADOR.

12

AUCTION DUTIES & AUCTIONeer.

At the sale of premises, the vendor

invited each bidder to put down two sums on a slip of paper; and upon collating such biddings, he whose paper contained the highest bidding was to be declared the purchaser, at the lowest of the two sums, if that exceeded the highest of any other bidder : held, that this was a sale by auction within the 19 G. 3. c. 56. and that the vendor incurred the penalty for acting as an auctioneer without being licensed, &c. although the purchase was never completed. Rex v. Taylor, T, 5 G. 4. Page 362

1. Agreement by trustees for sale of. one hundred and seventy-seven acres of land, and two small tenements, November 1813; purchaser put into possession, March 1814; bill for specific performance, and payment, May 1816; decree and reference as to title, January 1818; report in favour of title; decree, over-ruling exceptions to report, for an account, and conveyance to defendant, December 1818; payment of purchase money into Court, or otherwise, defect of title as to a life estate in twenty-six acres, second bill (intituled supplemental,) for specific performance with compensation, and not stating the locality, or value, or circumstances which would render the possession of the twenty-six acres immaterial to the enjoyment of the purchase, December 1823; motion to take the second bill off the file for irregularity, and to re-hear the cause refused, filing the bill not being irregular, and a re-hearing contrary to a general order of November 1731, directing all applications for a re-hearing to be made within six months after the decree pronounced. Bowyer and another v. Bright, T. 5 G. 4. Page 479 2. But a subsequent general demurrer to the bill was allowed, the case being held not one for compensation, and the bill was dismissed with the usual costs. 3. It is incumbent on a purchaser of his reversionary interest, from a person in the situation of an expectant heir, seeking a specific performance of the contract, to make out a case of adequacy of consideration. Ryle v. Swindells, &c. and Ryle and others v. Brown and Wife, S. a. T. 5 G. 4. 519 4. Therefore, where the terms were very favourable to the vendee, and the parties were not generally on

Id. lb.

an equal footing, although alleged intoxication, and imposition at transacting the agreement were disproved, bill for the purpose mentioned dismissed without costs. Id. Page 519

STAGE COACH DUTIES. The 3 G. 4. c. 95. s. 10. gives a lien for arrears of stage coach duties upon the coaches, and the horses, and harness, &c. employed therein, in respect of which such arrears have accrued. Held, 1st. that the lien attaches, though the property has passed to the assignees under a commission of bankrupt; and 2d. that the duties on each coach attach as a lien upon that coach, &c. only, and not upon the general stock of coaches, horses, &c. In the Matter of Day, a Bankrupt, T. 5 G. 4.

384

TAKING MONEY OUT OF COURT.

See INJUNCTION, 2.

TERM OF YEARS.

See EXTENT, 1.

TITHES.

See EVIDENCE, 2, 3, 4, 6, 7, 8, 9. Monus..

PRACTICE (IN EQUITY), 21.

1. A title in portioners to the tithe of corn, grain, and hay, does not, as a necessary consequence, give them a title to the tithe of clover, vetches, and tares cut green, and consumed by cattle; and a bill for an account of the latter tithes on that ground, was dismissed with costs. Lewis and another v. Young, Bart., E. 5 G. 4.

Page

113

2. Semble, that if a title were made out to the tithes of clover, vetches, and tares cut green, it would be a bad defence to a bill for an account, and payment of them, that those articles were given for food to husbandry cattle. 129 3. Tithe-owners cannot control the farmer in his mode of cultivating, or of consuming the produce of his ground, provided he act bond fide, and without fraud. Ib. 4. A title to tithe-hay will give a title to that tithe, whether the hay be made of natural grass, or of artificial grasses. 5. If a title to the tithe of artificial grases cut green, can be supported, it can only be taken as a tithe in the nature of agistment tithe. 139

133

6. But a title to tithe-hay can confer no title to agistment tithe. Ib. 7. An issue will not be granted to try farm moduses, on the loose

Id. Ib.

and general testimony of a single witness. Wolley and another Brownhill and others, E. 5 G. 4. Page 317 8. A defendant cannot plead a payment as a modus, and afterwards insist upon the same payment as a composition requiring six months' notice to determine it. Id. Ib. 9. Under particular circumstances, decree for an account of tithes declared to be without prejudice to any future defence the defendants might be advised to set up. Id. Ib. 10. The bill claimed the tithe of potatoes, turnips, and cabbages generally the answer set up a garden modus, and the plaintiff did not go for tithe of gardens at the hearing; bill in that respect dismissed with costs. 11. In an action for not carrying away tithes, it was averred (by mistake), that the land was that year sown with grass; and it was not proved that the tithe was set out in a convenient manner for carrying away, but the jury found that it was set out according to the custom of the country. Held, that the variance, and the uncertainty as to the setting out the tithe, were sufficient grounds for granting a new trial. But the plaintiff was allowed to amend on payment of costs. Hooper v. Mantle, T. 5 G. 4. 388 12. Composition for tithe from Michaelmas to Michuelmas is not determined by the tenancy of the land expiring at Lady-day, but there must be notice: therefore, where tenant continued to hold part of the farm for her away-going crop till Michaelmas following the end of her term: Held, that tender of composition to Ladyday, and setting out the tithe upon the part thus occupied, is no answer to an action for a year's

composition.

Hulme, Clerk, v. Pardoe, T. 5 G. 4. Page 393 13. Notice to determine such composition must be similar to notice to determine a yearly tenancy, viz. six months. Id. Ib.

14. To a bill for tithes by lessees of a spiritual impropriator against occupiers alone, mere non-payment, coupled with evidence of pernancy by the landlord of the premises for a few years, and of loose reputation of title in him as a portioner, unsupported by any document, does not constitute a defence, and the case will not be sent to law. Wolley and another v. Platt and Lowood, T. 5 G. 4.

TRUST AND TRUSTEES.

See SPECIFIC PERFORMANCE, 1, 2. Trustees charged with a loss to the estate and interest, occasioned by their voluntarily permitting a cotrustee to receive purchase money, and retain it a considerale time before calling for security, contrary to the trust, notwithstanding a provision in the will, that the trustees should not be answerable for any trust monies, further than each person for what he or she should respectively actually receive. Bone v. Cook and others E. 5 G. 4.

VARIANCE.

See TITHES, 11.

Page 168

A libel commenced thus: "We last week quoted a passage from a letter written by Mr. H. Jones of London to Sir G. Jerningham, Bart. setting forth the character of Mr. Cook," and subsequently proceeded thus : "About five years ago, he had a house in Orchard Street, Portman Square, and some time prior to that he had one in Manchester Square, in both which he contrived, &c." A count in the declaration purported to set out those passages, but omitted the words of" and which," and the variance was held fatal but the plaintiff was allowed to enter a verdict on other counts, to which the defendant had only pleaded the general issue, and which set out the above passages correctly. Cook v. Smith, E. 5 G. 250

4.

VERDICT.

See DOUBLE DUTIES.

3D

;