like a lease or demise of the tithe, which must be by deed, because tithes are incorporeal hereditaments (d); but is in the nature of a mere licence to the party, who was otherwise bound to set it out, to omit to do so, on a certain consideration (e). The lease of the tithe passes an interest: the agreement for the composition or retainer merely operates in discharge of the tithes, or claim thereto in kind. And if the farmer omit to pay the stipulated sum, the remedy against him is, not in debt on the 2 & 3 Ed. 6, c. 13, for the recovery of the treble value of the tithe not set out, but in indebitatus assumpsit, or debt, for the money agreed to be paid (f). But if there be any doubt as to the proof of the composition, it has hitherto been usual, to declare in debt upon the statute, with a count for tithes bargained and sold, &c. If, however, the composition agreement be established, it precludes the rector from adopting any other remedy than such as is founded thereon (g).

This contract for the retainer of tithes is perfectly distinguishable from a composition real; which is "where the incumbent, together with the patron and ordinary, make agreement by deed, executed under their hands and seals, that certain lands shall be discharged from the payment of tithes in specie, in consideration of a recompence to the incumbent, either in money or in lands, to him and his successors for ever, or in some other thing for their benefit and advantage" (h).

The rules affecting the notice to determine the contract for a composition, or retainer, of tithes, are similar to those which govern a notice to quit between landlord and tenant (i); consequently, to put an end to the composition, either party must give half a year's notice, ending at the expiration of the current year of the agreement (k).

And, by analogy to the principles which apply between landlord and tenant (/), if the farmer or occupier of the land disclaim the title of the tithe owner to the tithe in kind, and refuse to set it out,

or pay a then existing composition, and rely upon an unfounded modus, he is not entitled to a notice to determine the composition, and may be sued on the statute for not setting out the tithe (m).

The composition is not presumptively determined merely by the tithe owner demanding the tithe, (without claiming it in kind,) and the farmer thereupon tendering the composition, which the former refuses to accept, without assigning any reason for such refusal; for the notice ought to be unequivocal (n).

It seems also, that the contract is not determined in favour of the tenant with whom it was made, by his quitting his farm at the expiration of the tenancy thereof, without giving due notice, to determine the composition; and that, in such case, the composition continues against him, until notice has been given; at least, until expiration of the current year of the composition (o). However, the contract is so far personal, that the in-coming tenant is not liable upon the composition with the former tenant, which has not been determined by notice, although the in-coming tenant actually retain the tithes; there being no agreement by him to pay the composition (p). And the death of the incumbent certainly determines the contract, 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 then, in order to determine the composition, a regular notice must be given (q). If the succeeding rector receive the whole composition for a year, during the currency of which the late incumbent died, the executor of the latter may, in an action for money had and received, recover a proportion of the composition; and it seems that such proportion is to be calculated in reference to time, viz. that portion of the current year which had elapsed since the last payment up to the time of the testator's death, and in reference to the amount of composition received for the whole year (r).

In suing upon a composition for the retention of tithe, the plaintiff need not prove his title to the tithe; nor can the defendant set up as a defence to the action, that the plaintiff was simo

(m) Bower v. Major, 1 B. & B. 4. (n) Fell v. Wilson, 12 East, 83. (0) Hulme v. Pardoe, M'Clel. R. 393; 2 Eagle on T. 24, 25.

(p) Paynton v. Kirkby, 2 Chitty R. 405; 2 Eagle on T. 22, 24, 25.

(q) Id. Brown v. Barlow, 2 Eagle & Younge's Tithe Caves, 19; 3 Gwil.

on T. 1001; Anon. Bunb. 292; Williams v. Powell, 10 East, 269; 2 Eagle on T. 25, 26.

(r) 2 Eagle on T. 26, 27; Aynsley v. Wordsworth, 2 V. & B 331; 2 E & Y. 677; sed vide Williams v. Powell, 10 East, 269.

niacally presented (s). The plaintiff's title is admitted by the agreement. He has merely to prove the holding or occupation of titheable lands, in the parish, by the defendant, and the agreement for the retainer of the tithes arising therefrom (t).

5thly. OF BAILMENTS; THE DIFFERENT DESCRIPTion of BailEES, AND THEIR LIABILITIES. AND HEREIN OF CARRIERS.

Division of the subject. Different sorts of Bailees. — Sir William Jones, in his admirable treatise on the Law of Bailment, divides the subject thus (u):-1st, Depositum, which is a naked bailment, without reward, of goods to be kept for the bailor; 2ndly, Mandatum, or commission, when the mandatory undertakes, without recompence, to do some act about the thing bailed, or simply to carry it; 3rdly, Commodatum, or loan for use, when goods are bailed, without pay, to be used for a certain time by the bailee; 4thly, Pignori acceptum, when a thing is bailed by a debtor to his creditor, in pledge, or as a security for the debt; and, 5thly, Locatum or hiring, which is always for a reward: and this bailment is either, 1, Locatio operis faciendi, when work, &c. is to be performed on the goods delivered; and under this head may be considered the duties of Innkeepers and Warehousemen, with respect to the goods in their care; 2, Locatio rei, by which the hirer gains the temporary use of the thing; 3, Locatio operis mercium vehendarum; and herein of Carriers, public and private. Different degrees of negligence. - Before we consider more minutely the nature of each of these different bailments, it will be proper to remark, that ordinary neglect is the omission of that care which every man of common prudence and capable of governing a family takes of his own concerns; that gross neglect is the want of that care which every man of common sense, how inattentive soever, takes of his own property; and that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels (x). Where, however, actual fraud exists, these distinctions are immaterial, and the bailee, whatever may be the nature of his trust, is

(s) Brooksby v. Watts, 2 Marsh. R. 38; 6 Taunt. 333, S. C.

(t) See Peake's Ev. 4th ed. 467. (u) See Lord Holt's classification of the different species of bailment ; Coggs v. Bernard, 2 Lord Raym. 912;

See 3 Petersdorff's Abridgment, tit.
Bailment.

(x) Jones on Bailm. 118, s. 8, &c.; per Best, C. J., in Langley v. Brown, 1 M. & P. 586.

liable, even though the contrary be stipulated (y). But, in the absence of deceit, a special agreement by any bailee to use more or less than the exact degree of care the law would have required from him, is in general valid (z).

Where a bailee seeks to secure himself on the ground that the injury arose from the act of God, it must appear that the damage was the immediate cause of such act (a). Robbery by force is considered irresistible; but a loss by private stealth is said to be presumptive evidence of ordinary neglect (b).

Where particular orders are given and assented to, they form the contract between the parties; and the law implies a promise by the bailee to perform such orders (c).

1st. Depositum, being a naked bailment, without reward, of goods to be kept by the bailee.

Such bailee is only liable for gross neglect (d). But his duty is of a more serious nature, and he is responsible for ordinary neglect, if he spontaneously and officiously propose to keep the goods (e); or when he changes the description of his character, by taking the charge of the goods in consequence of any reward or lucrative contract (f). In such cases, however, the bailee is only bound to take the same care of the goods, as he would of his own ; and therefore, if notwithstanding such care, they be stolen by his servants, he is not liable (g).

Where the bailee alone receives benefit from the deposit, he is liable for slight negligence (h).

2ndly. Mandatum or Commission, where the mandatory undertakes, without recompence, to do some act about the thing bailed, or simply to carry it.

Here, as the bailor derives an advantage from the gratuitous exertions of the bailee, the latter is not liable; unless gross

(y) Jones on Bailm. 119, s. 5. (z) Id., 119, s. 4.

(a) Abbott on Sh. 5th ed. 251, 258. (b) Jones on Bailm. 44, 76, 119, s. 7. See Finucane v. Small, 1 Esp. R. 315; Robinson v. Ward, R. & M. 276; 2 C. & P. 59, S. C.; Clarke v. Earnshaw, Gow. R. 30.

(c) Streeter v. Horlock, 7 Moore,

287.

(d) Jones on Bailm. 45, 46; Coggs v. Bernard, 2 Lord Raym. 913; Finucane v. Small, 1 Esp. R. 315; Mytton v. Cock, Stra. 1099. As to the duty

negligence be proved against him (i). A stage coachman is not liable for the loss of a parcel he was to carry without reward, unless he be guilty of great or extraordinary carelessness in regard to the goods (k).

Where a party gratuitously undertakes the performance of a certain work for another, no action lies for omitting to do it, the engagement being nudum pactum; but if the party undertaking, enter upon or commence the work, he is at least liable if he injure the promisee by his gross neglect, or wrongful act; and if his situation or profession be such as to imply skill, an omission of that skill is imputable to him as gross negligence.

A count in a declaration stating that the plaintiff retained the defendant, who was a carpenter, to repair a house before a given day; that the defendant accepted the retainer; but did not perform the work within the time, per quod the walls of the plaintiff's house were damaged, cannot be supported. But a count stating that the plaintiff, being possessed of some old materials, retained the defendant to perform the carpenter's work on certain buildings of the plaintiff, and to use those old materials; but that the defendant, instead of using those, made use of new ones, thereby increasing the expense; is sustainable (1).

A., a general merchant, undertakes voluntarily, and without reward, to enter a parcel of goods of B., together with a parcel of his own of the same sort, at the custom-house, for exportation, but makes the entry under a wrong denomination, whereby both parcels are seized. 4. having bona fide taken the same care of the goods of B. as of his own, not having received any reward, and not being of a profession or employment which necessarily implied skill in what he had undertaken, is not liable for the loss occasioned to B. (m). And Lord Loughborough observed, "if in this case, a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, a wrong entry would in them be gross negligence, because their situation and employment neces

(i) Jones on Bailm. 120, 123; Shiells v. Blackburne, 1 H. Bla. 162; Mytton v. Cock, 2 Stra. 1099. An executor, who paid security for money into the hands of a third person, who had been the testator's banker, and who failed, was held not liable for the loss; Rowth v. Howell, 3 Ves. 565. Liability of master of ship carrying gratuitously; Nelson v. Mackintosh,

1 Stark, R. 237.

(k) Beauchamp v. Powley, 1 M. & Rob. 38.

(1) Elsee v. Gatward, 5 T. R. 143; see Max v. Roberts, 12 East, 59; Whitehead v. Greetham, 2 Bing. 464, 468; 10 Moore, 183, S. C. (m) Shiells v. Blackburne, 1 H. Bla.

158.