R  R  2


592  CASES  IN  THE  EXCHEQUER,

Exeh.  Ch.  in  Eq.  fourth,  which  came  first  to  the  pail  on  the  8th  March>  on  a

„     different  day,  computed  from  the  8th  March.     The  plain-

FiNiHAWE      tiff  refused  to  take  the  tithe  of  milk  in  that  manner;  it  is

Brittain,      no*  ^e  ru'e*     Such  a  rule  would  be  attended  with  the

utmost  inconvenience,     I  must,  therefore,  refer  it  to  the

Master  to  take  the  account  of  the  tithe  of  milk  according

to  the  prayer  of  the  bill,  and  the  defendant  must  pay  to

the  plaintiff  the  costs  of  so  much  of  the  suit  as  relates  to

that  subject.
I  have  stated  that  the  plaintiff's  right  to  the  tithe  of  peas
is  not  questioned.    The  dispute  is  about  the  mode  of  tithing.
The  peas  are  gathered  by  women  and  children,  in  small  bas-
kets, orintheiraprons.and  from  thence  put  into  sacks ;  when
there  are  ten  sacks,  the  tenth  is  marked  for  the  tithe;  when
there  are  not  ten,  it  is  calculated  that  each  sack  contains  three
bushels,  and,  upon  that  calculation,  a  tenth  of  the  whole
is  measured  out  and  tendered  for  the  tithe;  if  there  be  a
surplus  over  ten,  the  surplus  is  measured  in  the  same  way.
The  plaintiff  says,  that  all  this  is  erroneous,  and  that  the
peas  ought  not  to  be  put  into  sacks  at  all,  till  the  evening,
and  till  he  has  seen  the  whole  measured,  and  knows,  by
that  means,  that  the  actual  tenth  has  been  offered  to  him.
In  reply,  the  defendant  says,  that,  when  the  plaintiff's
agent  objected  that  the  ten  sacks  set  out  did  not  contain  a
due  quantity,  they  told  him  to  take  whichever  he  pleased.
