The National Register.
London, England, 1817-03-24 00:00:00

SMITH, cLrnK KP.VT.

DEBT by the Ilator of the pariA, c! Bovington in
the County of Essex to recover treble the value of cer-
tain hay tithes which it was alledged the defendant had
not legally set out.
Mr. Gunamv, on the part of the plaietifF staual,
that this action was not brought from any vindictive oe
hostile feelings. hut merely for the purpose of eotbrcitig
a legal mode of tithing in the plaintiff's parish. The
plaintiff had resided for 16 years in the 1 arish of Boy-
ington, and during that time all his parishoners except
two or three, had entered into a composition. The (1.--
fendant being one of those exceptions, claimed his right.
to have the tithes in kind. On the Ist July 1813 ae-
tice being given by the defendant that he intended to
cut eight acres of hay, the plaintiff with his servants,
attended to see that the tithes were properly set out
What the plaintiff complained of; was, that the de1;11-
dant insisted that he had a right to begin at one end of
his field, and before he got to the other, the haymakers
should be at liberty to distribute nine cocks, leaving the
Rector's tithe, without giving him a sufficient oppor-
tunity of comparing the tithe with the other cocks.—
The plaintiff insisted as the rule of law that the cock -
ing of the whole quantity of hay with respect to which
notice had hen given, should be finished, before the
tithing'nem proceeded to take the tithe, in order that
the parson might have an opportunity of comparing the
cocks and seeing that the tithe was taken. This
rule of law the defendant wished to wade, and the sole
object of this action was to establish the mode of tithing
on its right footing.
The fiwts of the case, necessary to bring the question
of law before the Court, being made out,
Mr. MARHYATT contended, that there was no pre-
tence for maintaining this action, inasmuch as no proof
had been given of the defendant having acted with guile
or fraud,. which was the only ground upon which the
action could be sustained. Fur this he cited Leathes v.
Levinson 1.‘.1 East. .?39 and Antal v. Hammitt', tried
at the last assizes for Maidstone before Lord Ellen.
borough. Undoubtedly it had been held that no part of
the crop could be carted off the ground, before the cler-
gyman's tithe was set out : but there was nothing illegal
in what had been done by the defendant, who had no
• intention whatever of injuring the plaintiff's rights.—
All that was required by law was, that the clergyman
• should have a fair opportunity of seeing that his title
was fitirly taken ; anti there being no proof in the COS*
contrary to this the plaintiff must be nonsuitcd.
\ tr. Scrjeant BOSANQUET was clearly of opinion, in
point of law, that the plaintiff had not had a sufficient
opportunity of comparing the tithe set out for Lim with
the other cocks front which it was selected. If it were
an established principal of law that no part of the crop
could be carted off the ground before•the parson's tithe
was set out, he could not sec why that principal should
not be extended to the present case. Fie apprehended
the rule of law to be, that where the parishoner gave
notice of hiS intention to tithe a certain portion of hay
he was bound to cock the whole of that portion, before
he began to scatter any part of it, in order to give the
parson an opportunity of making a comparison ; and on
this ground he directed a verdict for the plaintiff:
Verdict for the plaintiff.