1813.

22d May.

If a cause

where there is joinder on demurrer and no argument, be struck out of the paper, no one praying judgment, the

cause must be entered de novo (a).

ANONYMOUS.

POLLOCK, F. moved for judgment for the plain

tiff on demurrer, in a case where there was no argument. The cause had been struck out of the paper when called on in due order, nobody appearing to pray judgment for plaintiff.

LE BLANC J. Where it has been struck out, it ought to be restored again.

ELLEN BOROUGH C. J. said, from this time we will not admit of these motions; and if they are struck out they must be entered again in regular course.

(a) When counsel has had his brief in due time, and is accidentally or inadvertently absent at the time the common paper is called over, the Court will now, on his moving for that purpose, allow him to take judgment as if he had been present.

SUBPOENA.

BENNETT against JONES.

MARRYAT shewed cause against a rule obtained for an attachment against the witness, for not attending the trial of a cause after having been served with a subpoena to produce judgment book, to prove day of judgment, which date does not appear by any of the records of the office. It appeared by affidavit, that when the subpoena was served on Mr. Jones, said he would send his clerk with the book. The clerk accordingly attended, but not being able to plain the practice and the nature of the book, the plaintiff was nonsuited.

M

he

The

ex

PER CURIAM. To bring the officer into contempt, the person serving the subpoena should have stated that his personal attendance would be necessary. Rule discharged.

SURETY.

ATKINSON against Carter.

1818.

25th Nov.

CHITTY moved for a new trial, or to enter a non- The considera

suit. This was an action on a guarantee, dated in 1817, and as follows: "I hereby engage to pay you, on Mr. Thomas Lamb's account, 50l., at the expiration of the usual credit, on the event of any

deficiency on his part so to do." It appeared that Lamb had become bankrupt. Chitty objected on the

tion must be

stated on the face of a gua

rantee. But no notice of nonpayment by principal, or

demand on

surety, seems necessary to be

averred or

proved. Semb. " credit," and "usual credit," are synonymous. Notice to produce, serv ed at eight o'clock of evening before trial, too late.

1818.

ATKINSON against CARTER.

trial; 1st. That a consideration was not stated in the guarantee. 2d. That there was a variance; the declaration describing the guarantee as "credit" generally, and in the guarantee the expression was " usual credit." Sd. That notice of the nonpayment by the principal, and of demand of payment on the defendant, were stated and were necessary, Cro. Jac. 500. but there was no proof of any demand on the defendant; a notice to produce a letter demanding payment was served only at eight o'clock in the evening before the trial, which it was submitted was too late (a).

ABBOTT C. J. I thought that the notice served at eight o'clock the night before the trial was too late. I thought there should have been a demand; but I refused to nonsuit the plaintiff on that ground.

Marryat and Gaselee cited Wain v. Walters, 5 East, 10. Slade v. Gill, 9 East, and 14 Ves. jun. and contended, that if it were necessary, the consideration sufficiently appeared on the face of the guarantee; and there was no variance, and no demand or request on the principal or surety was necessary.

THE COURT intimated a decided opinion, that the notice to produce was served too late, and therefore that the defendant was not bound to produce the letter; but they overruled the second and third objections, saying as to the last, that no notice or demand was necessary, for that a surety was bound to enquire and inform himself whether or not the principal had paid besides, it appeared that the principal had become bankrupt, which excused a demand on him, or notice to the defendant. As to the first objection, the Court took time to consider; and ultimately decided that the guarantee was insufficient, for not distinctly disclosing on the face of it the nature of the consideration.

(a) 5 Esp. Rep. 46.

TITHES.

PAYNTON, Clerk, against ISAAC KIRKBY.

FRE

RERE Serj. moved to set aside a verdict obtained for the plaintiff at the Cambridgeshire summer assizes, before Mr. Baron GRAHAM, in an action for not setting out tithes in the parish of Doddington. In 1812, John Kirkby being then occupier of the land, entered into an agreement for payment of a composition in lieu of tithes for sixteen years, and paid such tithe until the year 1816, when he gave up the farm to Isaac Kirkby, the defendant. This action was brought against Isaac Kirkby for not setting out tithes, and for retaining them during the year 1816; and in answer to the action, the agreement with John Kirkby was set up. The tithes in question formed a part of those embraced by the contract.

(a) It has been determined in a court of equity, that where a composition is made for tithes, and the incumbent dies, and his successor receives the next payment due under the composition, the executors of the deceased incumbent have a right to a rateable proportion of the money paid, with reference to the different periods of enjoyment. Aynsley v. Wordsworth, 2 Ves. and Beams, 331. But see Williams v. Powell, 10 East, 269. However, the composition determines on the death of the incumbent, and his successor is not obliged to give notice of his intention to take the tithes in kind; but if the successor, after induction into the benefice, accept the composition, such acceptance will be deemed a confirmation; and in order to determine the composition, a regular notice must be given. Brown v. Barlow, 3 Gwillim on Tithes, 1001. Bunbury, 294. 10 East, 272. The notice to determine a composition is analogous to a notice to quit on a holding of lands, and therefore should be half a year's notice, ending at the expiration of the year. Wyburd v. Tuck, 1 Bos. & Pul. 458. Tell v. Wilson, 12 East, 83. While the composition subsists, the tenant cannot set up as a defence to an action for money due upon it, that the plaintiff was simoniacally presented. Brooksly v. Watts, 2 Marsh, 38. 6 Taunt. 333. S. C.

1818.

13th Nov.

Parol compositions

for tithes are merely person

al, and cease

with the occu

pation of the tenant. The composition paid by the former occupier is prima facie evidence of value (a).

1818.

PAYNTON

ISAAC KIRKBY.

BAYLEY J. On the change of occupation the contract was at an end. It has been determined (b) that Clerk, against all these contracts are personal, and cease on the change of occupier or incumbent. When the agreement is not by deed it is merely personal, and ceases with the change of occupation.

ABBOTT C. J. Tithes cannot be let except by deed. The composition for retainer may be by parol, but then it is personal. The evidence of what the former occupier paid is prima facie evidence of the value, unless a change of circumstances is shown. Rule refused.

(b) Hastings v. Lord Foley, T. T. 1818, was cited.