situ; but it was holden (c), 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 detain 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 (d) 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, bonâ 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 (e); 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 (2). The legal title, however, of the indorsee of a bill of lading, may be impeached on the ground of fraud (f); 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 consignees 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 (g). 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 (h) 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 previous right of the indorsee to be repaid his advances: "for although the legal right to the goods is transferred with the bill of lading, yet, in equity, the transfer takes effect only to the extent of the considera

(c) Stoveld v. Hughes, 14 East, 308. (d) Noble v. Adams, 7 Taunt. 59.

(e) Lickbarrow v. Mason, 2 T. R. 63. See the argument of Buller, J., 6 East, 21, n.

(f) Wright v. Campbell, 4 Burr. 2046; Salomons v. Nissen, 2 T. R. 674.

(g) Cuming v. Brown, 9 East, 506. See

further on this subject, Coxe v. Harden, 4 East, 211; Waring v. Cox, 1 Campb. 369; Barrow v. Coles, 3 Campb. 92; Mitchel v. Ede, 11 A. & E. 888; 3 P. & D.513; Wilmshurst v. Bowker, 2 M. & Gr. 792; 3 Scott's N. R. 272.

(h) In re Westzinthus, 5 B. & Ad. 817; 2 Nev. & M. 644.

(2) See further, as to the operation of a bill of lading, the judgment of Tindal, C. J., in Jenkyns v. Úsborne, C. P., June 29th, 1844.

tion paid by the transferree, leaving in the vendor an equitable interest in the surplus value" (i). 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 (k). 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 away (l). By the usage of trade, West India Dock warrants (m) indorsed, bonâ 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 (3). 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 re-house 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 (n), 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 consignor (o). The lien of an unpaid vendor (p) for the price of goods remaining in his own warehouse rent-free, is not devested by his giving the vendee a delivery order, under which part of the goods are removed. This was the case of pipes of wine at Liverpool.

(i) Per Lord Langdale, M. R. Spalding v. Ruding, 6 Beav. 376.

(k) Vertue v. Jewel, 4 Campb. 31.
(1) Davis v. Reynolds, 4 Campb. 267.

(m) 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.

(n) Hawes v. Watson, 2 B. & C. 540.

(o) Akerman v. Humphrey, 1 C. & P. 53, recognized by Park, J., delivering judgment in Tucker v. Humphrey, 4 Bingh. 522, 3.

(p) Townley v. Crump, 5 Nev. & M. 606; 4 A. & E. 58. See also Dixon v. Yates, 5 B. & Ad. 341; Miles v. Gorton, 4 Tyrw. 295; Gibson v. Carruthers, 8 M. & W. 321.

(3) Quære: whether a document, similar in form to a bill of lading, but given by the master of a boat navigating an inland canal, has the effect of such an instrument in transferring the property in the goods? See Bryans v. Nix, 4 M. & W. 775.

CHAPTER XXXVIII.

TITHES.

I. Definition, p. 1291; Of the Remedies in the Common Law Courts for the Recovery of Tithes, or the Value thereof, p. 1292.

II. Debt on Stat. 2 & 3 Edw. VI. c. 13, for not setting out Tithes, p. 1295; Of the Provisions of the Statute, and the Construction thereof, p. 1295; Of the Persons to whom Tithes are due, p. 1309; Of the Persons by whom and against whom an Action on the Statute may be brought, p. 1310; Of the Declaration, p. 1311; Pleadings, and herein of the Statutes of Limitation, p. 1312; Evidence, p. 1313; Verdict, p. 1316; Costs, p. 1317; Judgment, p. 1317.

III. Of the Stat. 6 & 7 Will. IV. c. 71, for the Commutation of

Tithes in England and Wales, amended by Stat. 7 Will. IV. & 1 Vict. c. 69, p. 1318; Stat. 1 & 2 Vict. c. 64, for facilitating Merger of Tithes, Stat. 2 & 3 Vict. c. 62, for explaining the Acts for the Commutation of Tithes, p. 1320; Stat. 5 & 6 Vict. c. 54, for amending the Acts for the Commutation of Tithes, p. 1320, 1321.

I. Definition, p. 1291; Of the Remedies in the Common Law Courts for the Recovery of Tithes, or the Value thereof, p. 1292. 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 or vicar of the parish for his maintenance. Tithes are divided into (a)-1. Predial, or such (a) 2 Black. Comm. c. 3.

as arise from the gross produce of the earth, renewed yearly, either spontaneously or by culture, -as of corn, grass, hops and wood, (see post, p. 1296): 2. Mixed, or such as arise from the gross annual increase of the stock upon lands, such as wool, milk, pigs, &c., being natural products, but nurtured and preserved in part by the care of man: 3. Personal, or such as arise from the clear annual gains of the manual occupations, trades, and the like, of the occupier of the lands. Predial tithes are further divided into great tithes, which are in general payable to the rector; and small tithes, in general payable to the vicar: but under the term small tithes are also comprehended mixed and personal tithes (b). Whether a tithe be great or small, is a question of law, to be determined by the nature of it, and not by the mode or place of its cultivation.

" I have never been able to discover any intelligible principle upon which to decide what is a great and what is a small tithe. For a long time it was considered as a question of fact depending upon the quantity of the article cultivated in the particular parish. It is now settled that the question depends upon the nature of the thing, and not upon the quantity of it which may happen to be produced. It would be satisfactory if any precise authority could be found as to what things are to be considered great, and what small tithes. In the absence of any authority, all that we can do is to determine the nature of any tithe by its resemblance to some other article, with respect to which a decision has already taken place. That is the only safe rule upon which we can proceed" (c).

But as between the rector and vicar (d), usage may make a tithe rectorial or vicarial, whether it be great or small. All tithes were originally rectorial; and vicarial tithes are merely those which, by the endowment, are taken from the rector; and, therefore, rectorial or great tithes may mean different things with reference to the particular rectory (e). For small quantities involuntarily left in the process of raking, tithe is not payable; otherwise, if there be any particular 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 (f). 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. Tithes are an incorporeal, ecclesiastical inheritance, collateral to the estate of the land (g); and before the stat. 32 Hen. VIII. c. 7, an action for tithes could not have been maintained in the temporal courts; but by the 7th section of that

(b) See Clee v. Hall, 7 Cl. & Fin. 744. (c) Per Best, J., in Daws v. Benn, 1 B. & C. 768, 9.

(d) See Gilbert v. Towns, 1 Bingh. N. C. 173.

(e) See the judgment of Bayley, J., in Daws v. Benn, 1 B. & C. 762.

(f) Per Cur., Glanvill v. Stacey, 6 B. & C. 543.

(g) 11 Rep. 13, b.

statute it is enacted, "That any person 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 (h). 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 tithe-owner, against the oссиpier, 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 (i). To this action the defendant cannot set up as a defence, that the plaintiff was simoniacally presented (k). 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 200l.; and the rent being in arrear, A. distrained, whereupon B. brought trespass; it was holden (1), 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.

By stat. 7 & 8 Will. III. c. 6, (made perpetual by stat. 3 & 4 Ann. c. 18, s. 1, and amended by stat. 7 Geo. IV. 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 proviso (m), that if the party complained of shall insist

(h) Priest v. Wood, Cro. Car. 301.
(i) Peake's Evid. 411, ed. 2nd.
(k) Brooksby v. Watts, 2 Marsh. 38;

6 Taunt. 333, S. C.

(1) Gardiner v. Williamson, 2 B. & Ad. 336. (m) Sect. 8.

(1) As to the principle of the stat. 7 & 8 Will. III. 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. & Ry. 860.