1821. STEELE against MANNS. substantially is, whether the lay inpropriator, who has sold the tithe of the estate, is entitled to the tithe of land allotted to the owner of that estate, in lieu of a right of common which was appurtenant by custom to the land. It is quite clear, that after the lay impropriator had thus sold the tithes of the estate, no tithe was payable at least before the passing of the inclosure act. Before the sale, the tithe was payable equally in respect of all cattle feeding on the enclosed as on the common land. When the lay impropriator sold the tithes of the estate, he therefore sold all the tithes in respect of all cattle feeding, both upon the enclosed and the common land. And I am of opinion, that inasmuch as no tithe was payable before the inclosure act, in respect of the cattle feeding on the common land, no tithe is payable now in respect of the land allotted to the owner of the estate, in lieu of such right of common. This case is very distinguishable from the case of Moncaster v. Watson (a), for the land, in respect of which the allotment was there made, was not wholly free from the payment of tithe; the exemption claimed was merely from the tithe of corn, grain, and hay, neither of which the common, while uninclosed, was capable of producing. The tithe of agistment would therefore remain payable, notwithstanding the exemption. Here, the owner of the land is the owner of the tithes, for the effect of the conveyance must have been to make the owner of the estate the owner of all the tithes of the land, and I am of opinion, that the owner of the estate becomes the owner of the tithes of land allotted to him, in respect of a right of common (a) 3 Burr. 1575. appur appurtenant to that estate. The postea must therefore be delivered to the defendant. HOLROYD J. I am of the same opinion. I am quite satisfied, from the case of Stockwell v. Terry, and the reasoning of Lord Kenyon in the case of Lord Gwydir v. Foakes (a), that the plaintiff is not entitled to the tithes of the allotted land, but that the person who is entitled to the tithes arising out of the estate, is also entitled to the tithes arising out of the allotted land, in like manner as he would have been entitled to tithes arising out of the beneficial enjoyment of the right of common appurtenant to that estate, in case the inclosure act had never passed. (b) BEST J. Concurred. 1821. STEELE against MANNS. Judgment for defendant. (a) 7 T. R. 641. (b) Bayley J. was absent at Chambers. HUDSON against GRANGER. ASSUMPSIT for the price of coals. The declar. ation contained two special counts on a contract between the parties, and also counts for goods sold and Wednesday, The owner of goods being indebted to a factor in an amount ex ceeding their value, consigned them to him for sale: the factor being also similarly indebted to I. S., sold the goods to him. The factor afterwards became bankrupt; and on a settlement of accounts between I. S. and the assignees, I. S. allowed credit to them for the price of the goods, and he then proved the residue of his claim against the estate: Held, that as the factor had a lien on the whole price of the goods, such settlement of accounts between the vendee and the assignees afforded a good answer to an action against the vendee for the price of the goods, brought either by or on the account of the original owner. By 47 G. 3. sess 2. c. 28. s. 29., "All contracts for coals are to be fairly entered in a book to be kept by the factor, subscribed by the buyer; and a copy of such contract is to be delivered by the factor to the clerk of the market, within an hour after the close of the market." A factor having coals consigned to him for sale by A, sold the same, and entered the contract in his book as having been made for C., the master of the ship. It was not signed by the purchaser; but in the copy delivered to the clerk of the market, the purchaser's name, as well as that of the factor, was inserted: the factor had no authority to insert the name of the master in his contract, but it was a common practice in the coal trade so to do. Query, whether, under the circumstances, an action might be brought in the name of C. for the price of the coals. delivered. 1821. HUDSON against GRANGER. delivered. At the trial before Lord Ellenborough C. J., at the sittings after Michaelmas term, 1817, a verdict was found for the plaintiff for 110l. 6s. 6d., subject to the opinion of the Court on the following case: The plaintiff was the owner or master of the ship Maria, and was employed in the coal trade by one John Hallowell, who was owner of the cargo of coals by that ship, a part of which was the subject of this action. The ship and cargo were addressed by Hallowell to Robert Clark, a factor. On the 10th of April, 1816, the defendant agreed with Clark to purchase of him part of the Maria's cargo, and in the contract entered by the factor in his book, the coals were stated to be purchased of Robert Clark, factor for Hudson, master or owner of the ship Maria. It was not signed by the defendant, or any person by him authorised, but in the copy delivered by the factor to the clerk of the market, the names of the defendant and of the factor were inserted at full length. By the 47 G. 3. sess. 2. c. 68. (local and personal) sec. 29., it is enacted, "that all contracts for coals between buyer and seller, shall, by the crimp factor, be fairly entered with the conditions thereof, and price of such coals, in a book to be kept by such crimp factor, subscribed by such buyer, and by the crimp factor, with their names written at full length, and a true and perfect copy of such contract, and the price of such coals, shall be delivered by such crimp or factor to the clerk of the market, within one hour after the close of the market on that day, for the inspection of any person." Clark was authorised by Hallowell, not only to sell, but to receive the price of the coals. Hudson had no interest in the cargo, and his name was inserted in the contract without his authority, it being the the usual practice so to insert the name of the master. In June, 1816, Clark became a bankrupt. F. Pollock for the plaintiff. This action is maintainable in the name of Hudson, because he was the person whose name was entered in the book of the factor, and also in the copy delivered to the clerk of the market. The defendant, therefore, might have learnt with whom the contract was made, and he cannot now be allowed to say, that the contract was not made with the present plaintiff. If the defendant had signed the contract, as required by the 47 G. 3. c. 68., there can be no doubt that the plaintiff might have sued. Assuming however, that the action was maintainable in the name of Hudson, the settlement which has taken place between the 1821. HUDSON against GRANGER. 1821. HUDSON against GRANGER. the defendant and the assignees of the bankrupt, cannot operate as any answer to the present action, for admitting, that this case must be considered as if the action were brought in the name of Hallowell, this settlement took place after the bankruptcy of Clark, and, although a payment to him before his bankruptcy would have been a valid payment, as against his principal, because he had authority to receive the money, yet his bankruptcy was a revocation of that authority, and therefore the payment was not made to an agent authorised to receive it, and consequently is not a valid payment as against Hallowell. Gaselee contrà. The bankruptcy of the factor would certainly operate as a revocation of his authority to receive payment on account of his principal. Here, however the payment was made, not merely on the account of Hallowell alone, but it was made to Clark or his assignees, who stand in the same situation in respect of the lien which he had against Hallowell, The Court were about to pronounce judgment, when F. Pollock in reply, suggested, that Clark never had any lien in this case, because, by the provisions of the 47 G. 3. c. 68., coals must be sold while in the ship, except in the case of a sale to government; the property, therefore, immediately passes from the vendor to the vendee, and the factor, therefore, never had a possession so as to give him a lien. (a) BAYLEY J. I am of opinion that the plaintiff is not entitled to recover. The stat. 47 G. 3. c. 68. sess. 2. (a) Abbott C. J. was sitting at the Old Bailey. was |