lessee, and the words here shall be no discharge; for these tithes are not things issuing out of the land, but collateral, and due jure divino; and, therefore, cannot be discharged but by special words. But if the words had been, s well for tithes growing and arising upon the lands, as for other demands, then peradventure it had been a good discharge. But as the case is, it cannot be intended by any words that he reserved the rent for tithes."

Then comes Carey's case, 1 Leon. 281, in which a man granted scitum rectoriæ cum decimis eidem pertinent., Habend. scitum prædict. cum suis per tinentijs, for twenty years: the first grantee died within the term: the tithes not having been expressly named in the habendum, the question was, whether the grantee should have them for life only. The court said, "The tithes are parcel of the rectory, and therefore for the nearness betwixt them, the rectory and the tithes, the tithes upon the matter pass together with the scite of the rectory for the term of twenty years."

*But in a subsequent case, Grubbam v. Grate, 2 Roll. Rep. 150, [*524 Palm. 94, 1 Eagle & Younge, 313, it was held, that tithes were not natural parts of a chapel, although they were appurtenant by usage. That shews how strict the courts have been in the construction of conveyances relating to this species of property. In Bone v. Bishop of Norwich, Winch. 72, 1 Eagle & Younge, 331, it was held, that tithes would not pass as appurtenant to a grange, for they were of several natures; except, as Winch said, that the grange be the glebe; for if it be, then the rectory might pass by that name.

In the present case, the word hereditaments being bound down by "belonging and appertaining to the said premises," passes only what was appurtenant to the land, which cannot be predicted of tithes.

In the case cited from Bligh, Lord Redesdale leaves it open to an inference that the presumption of some other deed was passing in his mind. "It appeared from the evidence, that both the rectory and the lands came to Sir John Packington, and that Sir John Packinton, having the rectory, granted the lands When he conveyed the lands, could he not convey them as he held them? Is it probable that he conveyed them subject to tithes, holding them himself not subject to tithes, though he might, if he thought fit, have made a separate de mise of the tithes and of the land. That circumstance, alone, seems to afford ground of presumption, and a very strong ground of presumption, especially coupled with this, that there is no evidence of the persons who afterwards derived title from Sir John Packington to the rectory impropriate, having ever received or ever claimed tithes of these lands."

[*525

The cases are too strong to allow us to accede to the proposition of the defendant's counsel, that we may arrive at a construction of the deed from looking at the situation of the parties, in the absence of language appropriate to the transfer of tithes; and the rule for setting aside the verdict must, therefore, be discharged.

PARK, J. I am of the same opinion. All the cases are uniform in shewing that tithes will not pass under a deed expressed as that before us. Without saying that there may not be circumstances in which tithes may pass by the word hereditament, yet here, where it is employed only in the society of general words, and is limited by the expression "belonging and appertaining to the said premises," it is clear the tithes cannot pass.

GASELEE, J. The cases are all one way, and therefore I agree in thinking that this rule must be discharged.

BOSANQUET, J. I am of the same opinion. The question is, whether the tithes passed under this deed of 1816. There is no such length of enjoyment in the defendant as to warrant the presumption of any other conveyance. The case in the House of Lords has been much relied on, because there, the tithes and land having both been originally in the Crown, were conveyed to Sir John Packington, and from him to a party under whom the defendant claimed, by a conveyance which did not contain the word tithes. But the defendant, and

those under whom he claimed, had there been so long in the enjoyment of the tithes, that there was reasonable ground, not for presuming an intention on the part of Sir John Packington which the language of his deed did not disclose, but for presuming the existence of some other conveyance. That is the interpretation which I put on the language of Lord Redesdale. That tithes are an inheritance distinct from the land, cannot now be questioned. We are, therefore, to consider whether they passed by this deed, which purports to be a conveyance of the land.

*526]

When the word hereditaments, unqualified, and accompanied with a local description of the premises whereon tithes arose, was found in a deed to lead the uses, it was the constant practice of this Court to amend recoveries by inserting the word tithes as applicable to that locality; but the deed here is confined to hereditaments belonging and appertaining to the land conveyed. Now, tithes do not appertain to land; and as the words "all right, title, interest, use, trust, possession, freehold, inheritance, reversion, possibility, property, challenge, claim, and demand whatsoever, either at law or in equity, of him W. Gatcombe therein or thereto, or to any part or parcel thereof," are applicable not to the word hereditament by itself, but to the land and its appurtenances, we cannot hold that the tithes passed, and this rule must be Discharged.

*527]

*WEST v. ROTHERHAM. Jan. 29.

In ordinary cases this Court does not allow the sheriff his costs of applying for a rule under the Interpleader Act.

THE plaintiff had levied execution on the goods of a bankrupt, which the defendant claimed as assignee under the commission.

The sheriff being called on to return the writ, a rule was obtained under the Interpleader Act, pursuant to which the plaintiff and defendant proceeded to trial on an issue as to the time of the bankruptcy.

At the trial it was agreed, that the plaintiff should abandon the execution, and the defendant take the proceeds in the hands of the sheriff; and now, Wilde, Serjt., prayed that the sheriff might be allowed his costs, incurred in applying for the rule under the Interpleader Act. It was usual, he said, to allow those costs in Courts of Equity.

TINDAL, C. J. Whenever a case special in its circumstances shall arise, we may take the matter into consideration; in ordinary cases, upon applications under this statute which gives so great a boon to the sheriff, we think the costs ought not to be allowed. Costs refused.

*528]

*FOOT v. SHERIFF. Jan. 29.

On a motion to set aside a writ of right on the ground that it had been re-sealed after service of a summons, the writ not having been returned, this Court, as having no jurisdiction, refused to interpose.

On the 21st of October last, the deforciant was summoned by the sheriff to appear to a writ of right returnable on the 2d of November.

On the 31st of October, he was served with notice that the writ had been resealed and the return altered to the 20th of November, for which day he was served with a fresh summons to appear, accompanied with a caution not to appear to the summons of October 21st.

Under these circumstances,

Talfourd, Serjt., in the last term, obtained a rule nisi to set aside the writ of right and summons, on the ground that the demandant had no power to alter the return, after service of the first summons. In Miller v. Miller, 2 New Cases, 66, where such an alteration was permitted, the return on a dies non was the misprision of the officer of the Court, and nothing had been done under the writ.

Wilde, Serjt., and W. H. Watson, who shewed cause, stated that the writ had not yet been returned, and thereupon contended that the Court had no jurisdiction in the matter. In Brown v. Babington, 2 Ld. Raym. 880, the Court held that unless it were shewn the original writ was returned, the production of a clausum fregit would not be a sufficient commencement of a suit to prevent the operation of the Statute of Limitations; upon the principle, that the original is the foundation of the jurisdiction of this Court. In Carr v. Shaw, 7 T. R. 299, leave was granted to amend a special capias, in order that an applica[529 tion might be made to the Master of the Rolls to procure a new original. The summons on a writ of right is a mere sheriff's warrant authorising a notice to the deforciant to appear to process, and no part of the process itself. And the writ was not irregular; for, before the actual return, it would have been a matter of course, upon condition of resealing the writ, to obtain leave from the Court of Chancery to alter the day fixed for the return: after service, this Court will not set aside process for defects which might have been amended before service by application to the Court; Popkins v. Smith, 7 Bingh. 434; and in Durdham v. Hammond, 1 B. & C. 111, it was held, that before a writ was returnable, it might be altered as to the return-day without being restamped, provided the last appointed return-day were not beyond the time at which the writ might at first have been made returnable: Vin. Abr. Amendment B. a.

In Leigh v. Leigh, ante, 464, which may be referred to for the deforciant, the writ had been returned, and was on the files of this Court, and the alterations of the day of return were made after the time within which the demandant was authorised to sue out his writ.

Talfourd, and B. Andrews, in support of the rule. As there was not an interval of fifteen days between the service of the first summons and the day first named for the return of the writ, the writ expired upon that service, and could not have been amended, even by application to the Court of Chancery. The statutes 14 Ed. 3, and 9 H. 5, only authorise amendments of misprision of a letter or syllable, and the statute of 8 H. 6, c. 12, misprisions of the clerk, of *which Lord Coke specifies five kinds in Blackamore's case, 8 Rep. [*530 156, none of them applicable to the present. In the Weaver's Company . Hayward, 3 Atk. 362, an action being brought on the Calico Act, in which the plaintiff served the defendant with a copy of a writ, instead of a special capias, and afterwards got the cursitor to alter the return of the original, it was held that the alteration was erroneous, and the writ was superseded. In Smith . Wilmer, 3 Atk. 595, the Court refused to supersede the writs on the same ground, only because the mistakes in them were merely literal or verbal. Durdham v. Hammond was the case of an ordinary judicial writ, but amendments in writs of right have always been refused; Baylis v. Manning, 1 N. R.

233.

At all events, Leigh v. Leigh is an express authority for setting aside the service of the summons. In that case, too, the Court held that the resealing was a reissuing the writ; and if that be so, the present writ, when resealed, was too late; for, according to the 3 & 4 W. 4, c. 27, s. 37, in order to avail the demandant, it ought to have been issued before June, 1835.

TINDAL, C. J. This application may be disposed of on one short ground. We have no jurisdiction whatever in the cause brought before us.

This is a writ of right, calling on the sheriff to warn the deforciant either to do justice to the complainant, or else to appear in Court and answer the complaint.

It is perfectly clear, that till the sheriff has made his return this Court has no jurisdiction. Blackstone lays it down, (3 Bl. Comm. 273,) that an original writ "is a mandatory letter from the king in parchment, sealed with his great

seal, and directed to the county wherein the *injury is committed, or *531] supposed so to be, requiring him to command the wrong-doer or party

accused, either to do justice to the complainant, or else to appear in court and answer the accusation against him. Whatever the sheriff does in pursuance of this writ, he must return or certify to the Court of Common Pleas, together with the writ itself, which is the foundation of the jurisdiction of that Court, being the king's warrant for the judges to proceed to the determination of the

" cause.

The return to the writ, therefore, is the foundation of all our jurisdiction. Comyns, in his Digest, Droit C. 2, says, "If the tenant does not appear at the return of the summons, nor be essoined, a grand cape issues against him. If he does not appear at the return of the grand cape, judgment final shall be against him."

It appears, therefore, that we have no jurisdiction: first, because the writ has not been returned; and, secondly, because, even if it had been returned, we are asked to do that which we have no power to do, to set aside an original writ. In Leigh v. Leigh the writ had been returned; it was handed up to the Court, and appeared to have erasures on the face of it: we were enabled to see what the condition of the tenant was; and all we did was, to relieve him from the danger he incurred, either in appearing or not appearing, and to give the demandant an opportunity of applying to the Court of Chancery. If this case fell within the decision of Leigh v. Leigh, I do not say what should be done by the Court of Chancery; but, at all events, that is the Court to apply to. All the cases cited establish that proposition.

As the substantial application in the present instance, is to set aside the writ, -for the summons is an unsubstantial matter, no more than a notice, or warning by the sheriff, and setting aside the summons will be of no avail, unless the writ be also set aside, the *application is coram non judice, and the rule must be discharged.

*532] PARK, J. I agree that we have no jurisdiction in this matter. As the writ has not been returned, we have nothing before us; for it is the return which is the foundation of our jurisdiction: besides which, we have no power here to set aside a writ out of the Court of Chancery. In Leigh v. Leigh, the writ was actually in Court.

GASELEE, J. The Court of Common Pleas has no authority to deal with a writ of right, unless under the directions of the Court of Chancery. Till the writ is returned, we have no notice on the subject.

BOSANQUET, J. We give no judgment upon the regularity or irregularity of this proceeding, but think we have no jurisdiction in the matter.

Rule discharged.

SYMES v. GOODFELLOW. Jan. 29.

Defendant pleaded non assumpsit to an action for the board and lodging of his wife: an arbitrator, to whom the cause was referred, admitted evidence of the wife's adultery, and decided against the plaintiff. The Court refused to set aside the award.

ASSUMPSIT against a husband for board and lodging furnished to his wife. Plea, non assumpsit.

By an order of Nisi Prius the cause was referred to a barrister, who admitted evidence of adultery by the wife, and decided in favour of the defendant.

Crowder, obtained a rule nisi to set aside the award, on the ground that the VOL. XXIX.-42

arbitrator, in admitting this *evidence on the issue of non assumpsit, had exceeded his authority.

[*533

Wilde, Serjt., who shewed cause, contended that the admissibility of the evidence was a matter of law on which the decision of the arbitrator was final. The award of the barrister had always been held final; and now that rule was extended to the award of a lay person; Jupp v. Grayson, 1 Cr. M. & R. 523.

Crowder. An award is final on the merits of every thing within the scope of the arbitrator's authority: but the reference of this cause gave the abitrator no authority to inquire into any thing beyond the existence of the contract. He could not inquire into the fact of adultery unless it were pleaded.

TINDAL, C. J. Put it as you please, it is only that an inadmissible witness has been called. His admissibility was a question of law, which has been decided by the arbitrator; you must take his law for better and for worse. The rest of the Court concurred. Rule discharged.

*GRACE v. MORGAN. Jan. 29.

[*534

In an action for a vexatious and excessive distress, the plaintiff having received the tared costs of his replevin on the distress, was held not entitled to recover, as damages, the extra costs occasioned to him by the replevin.

CASE for a vexatious and excessive distress.

At the trial, a verdict was found for the plaintiff, with leave for him to move to add to the damages given by the jury the amount of the extra costs in a former action of replevin, which the plaintiff had brought in respect of his goods distrained, and in which the proceedings had been stayed by consent, and the amount of the taxed costs, had been received by the plaintiff from the defendant before the present action was commenced.

Hughes, having obtained a rule nisi to increase the damages by the sum of 237., the amount of the extra costs,

Wallinger, shewed cause. The plaintiff can claim, as damages incurred by the tortious act of the defendant, no expenses incurred by him other than such as the law sanctions; and the taxed costs are the only expenses incurred by a party which his opponent can be called on to reimburse. In Hughes v. Earl of Litchfield, 1 New Cases, 500, after the costs of proceedings in chancery had been taxed, this Court refused to allow the plaintiff his further costs as between attorney and client; Bosanquet, J., saying, "Are not costs beyond taxed costs to be considered as incurred voluntarily, beyond what is absolutely necessary?" and Park, J., "If the claim be allowed in this case, I do not see why, in all cases, a separate action should not be brought for costs which the officer of the *court disallows on taxation." Upon the same principle, in Jenkins v. Biddulph, 4 Bingh. 160, in an action against the sheriff for a false return [*535 of non est inventus, per quod the plaintiff was outlawed, it was held that the plaintiff could not recover the extra costs of the outlawry. Platt, and Hughes, in support of the rule.

The defendant who has committed a wrong, is thereupon impliedly liable to indemnify the party wronged for all expense necessarily incurred in seeking redress. Here the plaintiff was compelled to sue, because his cattle had been wrongfully seized; and costs as between attorney and client are necessarily incurred in such a suit. In Hodges v. Earl of Litchfield the costs refused were not incurred necessarily; and in Sinclair v. Eldred, 4 Taunt. 7, where the plaintiff sought to recover extra costs in the shape of damages for a malicious arrest, he failed on the ground that it did not appear the arrest had been malicious. But in Nowell v. Roake, 7 B. & C. 404, the plaintiff recovered by way of damages, in an action of mesne profits, costs incurred by him in a court of