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1812.

LEW16 against TAYLOR.

used his own greyhound for the purpose of sporting, though in the same company with a qualified person, the case would admit of a different consideration : but there can be no ground for recovering the penalty against this defendant, who went out with the dogs of another who was qualified, and which other was using them himself: the defendant's picking up the hare after it was killed is no using of the dogs to kill the game. We had occasion to consider this question very lately in the case of a servant (a).

The other Judges agreed ; and Bayley, J. noticed that the words of the statute of Anne are keep or use any greyhounds, &c. : but this defendant neither kept the dog, nor was it under his controul at the time it was used to kill the hare.

Rule absolute for entering a nonsuit. (a) Rex v. Taylor, 15 East, 460.

Neale against LEDGER.

Wednesday,

June 3d. . SCARLETT moved to set aside an award made under Where the par

these circumstances; each of the parties named an arbitrators, who arbitrator, and the two so named were to choose a third, were to choose

a third, and the and the award was to be made by the three or any two award was to

be made by the of them. The two first named, having each proposed a three or any third to the other, and neither of them liking to abandon two of them,

and each of the his own, though not disapproving of the other's choice, arbitrators proagreed to toss up which of the two proposed should be other a third,

who was ad

mitted to be a fit person ; but not being able to agree which of the two proposed should be selected, they agreed to decide the choice by lot; held that this was within their authority, and that an award made by such third arbitrator in conjunction with the one by whom he had been originally proposed, could not be impeached on that account.

nominated

E 2

1812.

NEALE against LEDGER.

nominated as the third arbitrator; which having been accordingly done, the award was afterwards made by such third arbitrator so appointed, in conjunction with the one by whom he had been originally proposed. But he contended that the two first named arbitrators had only authority to nominate a third, who was agreed upon by both : whereas this mode of appointment excluded the choice of one of them. And he cited Harris v. Mitchell (a), and Hewitt v. Penny (b), as directly in point, where the like mode of choosing an umpire by two arbitrators was holden to vitiate the umpirage.

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Lord ELLENBOROUGH, C. J. This was not a tossing up between the two arbitrators which should nominate the third in exclusion of the other, which would have been bad, according to the cases cited; but after having each of them nominated one, and each of them thinking that the nominee of the other was nearly as proper as his own, agreed to submit their opinion to this mode of selection of one out of the two fit persons. I cannot see any objection to this. The mode of appointing twelve jurors, out of all those who are returned as fit to serve, is by lot. Per Curiam,

Rule refused.

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1812.

Doe, Lessee of Mary BRIERLY, against Sir

CHARLES PALMER, Bart.

Wednesday,
June 3d:

THIS
WHIS was an ejectment for tithes of corn, grain, and In ejectment

against a lessee hay, arising from 500 acres of land, which was of tithes for brought upon two several demises of the lessor of the holding over,

after the expiplaintiff; one upon the 12th of October 1810, and the ration of a no

tice to quit, other on the 12th of October 1811; and at the trial before some evidence

must be given Heath, J. at the last assizes at Aylesbury, it was admitted to shew that he that the lessor of the plaintiff was the proprietor of the did not mean

to quit the postithes, and that one Thomas Botham being her lessee by session : as by assignment under an agreement which only operated to to that effect,

or even bis create a tenancy from year to year, on the 1st of March

silence when 1810 assigned all his interest in the same to the defend- questioned

about it; or, as ant. That on the 22d of the same month the lessor of it seems, by

shewing that the plaintiff gave due notice to Botham to quit at the the defendant, following Old Michaelmas, and also in March 1811 gave who claimer

by.

assignment due notice to the defendant to quit at the following Old from the ori

ginal lessce, Michaelmas, all the great tithe of corn, grain, and hay, had entered

into the rule to which he held or claimed to hold under her : and there defend as landwas evidence to shew that the defendant was in possession lord, But a seof the tithes up to the 11th of October 1811; for he ten- the defendant

to quit at Midered rent for them up to that period; which tender chaelmas 1811, was made after the day. The learned Judge was

is a waver as to of

him of a former opinion that the lessor of the plaintiff, by her notice to the notice given to

the original defendant in March 1811 to quit at the following Mi- lessee, from chaelmas, had admitted him to be her tenant up to that claimed by astime, and therefore could not recover upon the demise signment; to

quitat Michael on the antecedent notice to Botham to quit at Michael- mas 1810. mas 1810. And there being no proof that the defendant had occupied or been in possession of the tithes after the

expiration

1812.

DOE, Lessee of BRIERLY,

against PALMER.

expiration of the notice to quit in 1811, he nonsuited the plaintiff; giving leave to move the Court to set aside the nonsuit, and to enter a verdict for the plaintiff, if the Court should be of opinion that it ought to be done.

Blossett, Serjt. moved accordingly in the last term, and stated the question ultimately made at the trial to be whether the subject-matter of the ejectment being tithes, all of which had been taken for that year before the expiration of the notice to quit, and those tithes being incapable from their nature of any actual and visible possession or pernancy except at one period of the year which was then passed, it was necessary to do more than to prove the actual taking of the tithes by the defendant at the proper season, so as to throw upon him the burthen of proving that he had disclaimed any right to take them in future before this ejectment was brought? The proof offered on the part of the lessor of the plaintiff was all, he contended, which the subject-matter was capable of affording till the succeeding harvest of 1812. 2 Blac. Com. c. 2. shews that the estate of the tithe-renter does not consist in the actual taking of the tithe, but in the right to take it, which is a continually subsisting right. There was nothing to mark a change of possession after the 11th of October 1811; nothing to shew that the defendant had afterwards renounced the possession which he held at that time, and therefore it must be presumed to have continued. In explanation of the fact of giving the second notice; which it was contended had done away the first, to which the same objection of non-possession did not apply; he said that Mrs. Brierly had then had no notice of the assignment, and had not then received any rent of the defendant to fix him with the possession.

Lord

1812.

DoE, Lessee of BRIERLY,

against PALMER,

Lord ELLENBOROUGH, C., J. then observed that as there was a clear possession by the defendant proved in October 1811, and he did not, when served with the notice to quit, renounce his possession, it seemed fair to presume that things continued in the same state, in the absence of all evidence of their having been altered. But the rule nisi was granted, as to both the demises, upon these questions; 1st, Whether the first notice to quit, after the expiration of which there was a clear possession by the defendant proved, was waved by the second; 2dly, Whether there was any such possession proved after the second notice to quit expired.

Sellon, Serjt. and Best now opposed the rule, and contended that the first notice to quit was waved by the second, as acknowledging the tenancy to be subsisting after the expiration of it. As to the second, that the action was brought prematurely, there being no one act or expression of the defendant's proved to shew that he held or meant to hold over; and the Court would not presume that he meant to be a trespasser.

Blossett, Serjt. in support of the rule argued upon the efficacy of the first notice, that it was not waved by the second, upon the authority of Messenger v. Armstrong (a): For here the circumstances explained the second notice ; for after the first notice to Botham, the lessor had notice of the change of possession by the assignment to the defendant : but Botham's tenancy having expired at Michaelmas 1810 could not be set up again by another notice to the defendant in March 1811. The giving a

(a) 1 Term Rep. 53.; and see Doe v. Humphreys, 2 East, 237.

person

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