TITHES.

Oak wood of more than 20 years' standing, not growing from acorns, but from old stools, which stools belonged originally to trees which had stood more than 20 years, were held not to be so clearly entitled by stat. 45 Ed. 3. c. 3. to exemption from tithe, as to make a verdict which subjected them to tithe a wrong verdict. Ford, Widow, and Another Executors of H. Ford, Clerk, v. Racster, E. 55 G. 3. Page 130

TRANSPORT,

See CHARTERPARTY.

TRIAL,

See JURY.

TROVER.

A servant may be charged in trover, although the act of conversion be done by him for the benefit of his master. Stephens and Others, Assignees, v. Elwall, T. 55 G. 3. 259

TRUSTEES,

See ACTION IN THE CASE.

USURY. Whether a commission of one-half per cent. upon a banking account be usurious or not, is a question for the jury, depending upon whether it may be ascribed to a reasonable remuneration for trouble and expence, or whether it be a colour for the payment of interest above 5l. per cent. upon a loan of money, and if there be a contrariety of evidence upon that point, the Court will not set aside the verdict and grant a new trial, although the verdict be against the opinion and direction of the Judge who tried it; unless

1.

See BILLS OF EXCHANGE, 1.6. Where plaintiff declared in covenant, that defendant demised to him a wharf and storehouses, &c., the word in the deed being storehouse: it was held to be a fatal variance, although no breach was assigned upon the demise of the storehouse, but only, upon a covenant by defendant, not to suffer a wharf to be erected on his estate to the injury of the said wharf, per quod plaintiff was deprived of certain gains which would otherwise have arisen from wharfage dues, store-room, &c. Hoar v. Mill, H. 56 G.3.

470 2. In debt on a mortgage-deed for non-payment of the mortgagemoney, plaintiff declared that defendant bound himself, his heirs, executors, and administrators, and proved a deed in which defendant bound himself, his executors and administrators only: Held that this was not a material variance. Hamborough v. Wilkie, H. 55 G. 3. 3. Where the indorsee declared

471 n.

against the maker of a promissory note, that he made the same payable at the house of Messrs. B. and Co., London, and upon production of the note at the trial it appeared that the address at the house of Messrs. B. and Co. was not a part of the note, but only a memorandum at the foot of the note: Held that this was a variance. Russell, H. 56 G. 3.

Exon v.

505 VENUE.

VENUE,

See PRACTICE, 2.

VISITOR,

See MANDAMUS, 6.

WARRANTY.

A., B., C., tenants in common in tail, B. releases to A. and C. and their heirs all his undivided part, and all his estate and interest therein, habend. to them, their heirs and assigns, as tenants in common, and not as joint tenants to the use of them, and their assigns, and B. covenants with A. and C., their heirs and assigns, that he, his heirs, &c. would warrant and for ever defend the premises to Ar and C. (without the word heirs) against all persons, and that A. and C., their heirs and assigns, should quietly enjoy, &c.: Held that the release passed the interest of B. to A. and C. as tenants in common, and not as joint-tenants, and that the warranty annexed to the release created a discontinuance of B.'s estate tail, and barred B. and those claiming under him, as against those claiming under the release, of a subsequently-acquired right in fee. Doe, dem. Hutchinson and Others, v.Prestwidge, T.55 G. 3. Page 178 WAY,

and afterwards died, leaving his wife ensient with a daughter, which was unknown to him: Held that the birth of the daughter was not a revocation of the will. Doe, dem. White v. Barford and Another, E. 55 G. 3. Page 10

WITNESS.

1. Where, upon appeal against an order of removal, the appellants, in order to shew a settlement in third parish, called the pauper to prove that he was bound apprentice by indenture to D. and served in the third parish, and then produced the indenture, but failing to prove the death of the subscribing witness, so as to entitle them to prove his hand-writing, proposed to call the pauper to prove his own execution, and that of the other parties to the indenture, which evidence the Sessions rejected: Held that the Sessions did well, for the rule which requires the subscribing witness to be produced, or his absence accounted for, applies as well to settlement cases as others. The King v. The Inhabitants of Harringworth, M. 56 G.3. In assumpsit against one of several partners for not delivering goods, with a count for money had and received, to which defendant pleaded that the promises were made jointly with A. and B., it appeared that defendant being partner with A. and B. made the contract individually, though in the name of the partnership, and for the sale of partnership property, and that in fraud of his partners he received the money to his own use, though the bill drawn by him for the money was in the parnership name: Held the plaintiff might recover

2.

350

the