same case that the common law mode of setting out the tithe of corn is in the sheaf, and not in the shockTM. There is another general rule on this subject, which ought to be mentioned, viz. that the tithe ought to be so set out, and the nine parts left so long that the parson may have an opportunity of judging by the view, whether the tithe is fairly set out or not (8). In a case for not carrying away tithe, where it was alleged "that plaintiff set out the tithe of barley and oats lawfully and in due manner, it was holden that this allegation was satisfied by proof that the tithe was set out according to an agreement between the parties, although it varied from the mode prescribed by the common law. Corn must be tithed in the first convenient state in which the tithe can be collected after the corn is cut, which is in sheaves; and if the farmer adopt any mode of tithing, which excludes or abridges the due means of the parson's comparing the tenth sheaf with the other nine, it is bad. The common law does not require any notice to the parson of tithe being intended to be set out, either of predial tithes, or of animalsP; but there may be a special custom requiring such a notices, and notice should be given of tithe having been set out previously to bringing an action for not removing it. m Shallcross v. Jowle, B. R. H. 51 G. 3. 13 East, 261. S. P. n Admitted per Cur. in Halliwell v. o Facey v. Hurdom, 3 B. & C. 213. the defendant for not taking away the tithe of lambs and calves, after the plaintiff had set them out. Verdict for plaintiff 1s. for lambs, 1s. for calves. See also Kemp v. Filewood, 11 East, 358. q Butter v. Heathby, 3 Burr. 1891. r Admitted arg. 3 Burr. 1892. (8) The same point was adverted to in Shallcross v. Jowle, where it seemed to be the opinion of the court, that after the land-owner had set apart the tenth-sheaf, he ought to allow the remaining nine sheaves to remain on the ground a convenient time before he put them into shocks, in order that the tithe-owner might have an opportunity of judging whether his tithe had been fairly set out. But whether the whole crop has been left on the ground for a reasonable time after the tithe has been set out, in order that the tithe-owner may compare the tenth part with the other nine, is a question for the jury, and not for the court. Facey v. Hurdom, 3 B. & C. 213. II. By whom and against whom an action for a Nusance may be maintained. If the nusance be to the damage of the reversionary as well as the possessory interest, an action may be brought as well by the reversioner as by the tenant in possession, and each will be entitled to recover damages commensurate with the injuries, which their respective interests may have sustained. If the house, &c. affected by the nusance be aliened, the alienee, after request made to remove or abate the nusance, may maintain an action for the nusance'. Tenants in common may join in an action to recover damages for a nusance, which concerns the tenements which they hold in common. The action may be maintained against the person who erects the nusance, or his alienee", who permits the nusance to be continued. If the party, against whom a verdict in an action of this kind has been recovered, does not abate the nusance, another action may be brought for continuing the nusance, in which the jury will be directed to give large damages. N. It is usual, in the first action, to give nominal damages only, which, however, entitle the plaintiff to full costs. Tenant for years erected a nusance", and afterwards made an under-lease to I. S. The question was, whether, after a recovery against the first tenant for years for the erection, an action would lie against him for the continuance, after he had made an under-lease? Et per cur. it lies; for he transferred it with the original wrong, and his demise affirms the continuance of it; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. Vide Wm. Jones, 272. Receipt of rent is upholding. Cro. Jac. 373. 555. The action lies against either at the plaintiff's election. Case lies against the landlord of a house demised by lease, who, under his contract with his tenants, employs workmen to repair the house, for a nusance in the house occasioned by the negligence of his workmen'. s Bedingfield v. Onslow, 3 Lev. 209. Leader v. Moxon, 3 Wils. 461. 2 Bl. R. 924. S. C. t Penruddock's Case, 5 Rep. 101. a. u 5 Rep. 100. b. x Rosewell v. Prior, Salk. 460. The trustees of a turnpike road, empowered by stat. to make water-courses, to prevent the road from being overflowed, directed their surveyor to present a plan for carrying off the water of an adjacent brook: he recommended, and on that recommendation they adopted, and caused him to make a wide channel from the road, gradually narrowing, and conducting the water into the ordinary fence-ditches of the plaintiff's land, which were insufficient to discharge it, and his land was consequently overflowed. It was holden* that an action did not lie against the defendant who was one of the trustees, and the chairman, who had signed the order for cutting this trench; for the defendant was not a volunteer: he executed a duty imposed on him by the legislature, which he was bound to execute; and he had exercised his best skill, diligence, and caution in the execution of it. III. Evidence, &c. THE plaintiff must be prepared to prove his possession of the land, house, &c. affected by the nusance, and the continuance or erection of the nusance by the defendant, as the circumstances of the case may require, and also the injury thereby sustained. Where the plaintiff complains of an injury to an easement, it will be incumbent on him (unless he can shew an express grant) to carry his evidence of the condition of the land, &c. and the enjoyment of the right, as far back as possible, in order to raise a presumption of right by grant or prescription. This action being local in its nature, the nusance must be proved to have been committed in the county where the venue is laid. But it is not necessary that the gravamen should be described with any local certainty. It is sufficient if the declaration point out the gravamen with certainty enough to enable the defendant to have notice of it. Notice to remove nusance left at premises is evidenced against subsequent occupier. The general issue to an action for a nusance is, not guilty, under which every thing that shews that the defendant did z Sutton v. Clarke, 6 Taunt. 29. a Peake's Evid. 294. b Warrel v. Webb, 1 Taunt. 379. c Mersey and Irwell Navigation v. what he lawfully might do, may be given in evidence (9). Hence the defendant may prove that the plaintiff gave him leave by parol to do the act which occasioned the nusance, and that it was done under that permission; for a licence executed is not countermandable. But it must be observed that in this case all the defendant did was on his own land. And although a parol licence may be an excuse for a trespass, until such licence is countermanded, yet a right and title to have a passage for water over another's land, being a freehold interest, requires a deed to create it. e Winter v. Brockwell, 8 East, 308. f Hewlins v. Shippam, 5 B. & C. 221. (9) "Evidence upon the general issue has of late been allowed in many cases, which in former times would not have been admitted." Per King, C. J. Anon. C. B. E. 4 Geo. 1. Comyns' R. 274. CHAP. XXXI. PARTNERS. I. What is necessary to constitute a Partnership. III. Of Actions by and against Partners. IV. Evidence. I. What is necessary to constitute a Partnership. IN order to constitute a complete partnership, as well between the parties as in respect to strangers who may deal with them, a communion of participation of profits and loss is essential. The shares of the parties must be joint, though it is not necessary that they should be equal. If the parties be jointly concerned in the purchase, they must also be jointly concerned in the future sale, otherwise they are not partners. A. for himself and his two partners" (who were general merchants), B. for himself and partner (who were oil merchants), C. for himself and son, (who were also oil merchants), agreed to purchase jointly as much oil as they could procure, on a prospect that the price of that commodity would rise. A. was to be the ostensible buyer, and the others were to share in his purchase, at the same price which he might give. A. and Co. were to have a half, B. and Co. a quarter, and C. and Co. the remaining quarter. In pursuance of this agreement A. and Co. ordered a broker to buy quantities of oil. The broker accordingly bought several ship loads, and among the rest a ship load from the plaintiffs. To some of the vendors, (not plaintiffs in this action), B. and Co. and C. and Co., during the treaty, declared it to be a com a Coope and others v. Eyre and others, 1 H. Bl. 37. |