1820. DOE, dem. v. WHITTICK. consequently amounts to a forfeiture of the lease, or subsisting tenancy. The defendant had the verdict. Jervis and Puller, for the lessors of the plaintiff. W. E. Taunton and Ludlow, for the defendant. See Doe d. Dillon v. Parker, ante, p. 180. Friday, March 31. If a bill of exchange be accepted, payable at a particular place, in an action against the acceptor, the plaintiff must prove that it was presented THE PHILLIPS and Another v. FRANKLIN. HIS was an action against the acceptor of two bills of exchange, which had been accepted payable at a particular place. The plaintiffs did not prove that the bills, when due, had been presented for payment at the place at which by the acceptance they were made payathere for pay- ble; and in the calculation of damages they claimed ment, in order interest on the bills from the time of their having been dishonoured, to entitle him self to inter est. HOLROYD, J. I do not think you can support your claim to interest. However unnecessary it may be to prove a presentment for payment at the particular place, in order to entitle you to recover the principal sum secured by the bill, I think that the right to interest depends upon a different consideration. To entitle you to that, you must shew a presentment. The plaintiffs had the verdict. 1820. PHILLIPS v. FRANKLIN. D HISCOCKS v. WILMOT. Same Day. EBT on the 2 and 3 Edw. VI. c. 13. for not In an action setting out tithes. The case for the plaintiff was composed in part of a claim for small tithes, subtracted from the viwhere they had accrued due. carage of Of this vicarage it appeared that the Reverend tiff was his lessee or farmer. In support of this Jervis and Campbell, for the defendant, insisted that the plaintiff had not established any title to the small tithes. The right of the vicar to tithes by a vicar, or his lessee on the 2 and 3 Edw. 6. c. 13. for not setting out tithes, the plaintiff must either prodowment, or duce the en 1820. of that description can only be evidenced by a written endowment, or by the constant perception of such tithes which pre-supposes an enWILMOT. dowment. HISCOCK'S V. HOLROYD, J. Without the production of the endowment, or proof of a prescriptive perception of the small tithes by the vicar and his predecessors, I cannot conclude, as a necessary inference of law, that the vicar is in this case entitled to the small tithes. Generally speaking a vicar is endowed with the small tithes of the vicarage: but his title depends wholly upon the endowment, or upon prescription and usage which are evidence of an endowment. And it does not follow as a necessary consequence of law, that the vicar can in all cases claim against the rector the small tithes arising within the vicarage. Without evidence, therefore, either of an endowment or of prescriptive enjoyment, I do not think, that the plaintiff can make out his claim to the small tithes. The plaintiff afterwards proved payment of a small sum to the vicar as a composition for the small tithes, and had the verdict. W. E. Taunton and Ludlow for the plaintiff. Jervis and Campbell for the defendant. In Green v. Austin, Yelv. 86. it is said, that " no tithes de jure belong to the vicar; but only on an endowment or prescription, which ought to be shewn ex parte the vicar: and the Court cannot intend it; for the vicarage is a dimi A SSUMPSIT for work and labour, and materials found. Taylor pleaded the general issue, and Fisher pleaded his bankruptcy and certificate. Monday, The statute 49 Geo. 3. C. 121. s. 14. which enacts that creditors who shall have brought an action The plaintiffs, in support of their case, called a against the witness who, being examined on the voir dire, stated that he was a creditor of Fisher's. Where- liberty to upon, bankrupt prove under Peake, Serjt., for the defendant Taylor, ob- such action jected to his competency as a witness. was at all events liable to the plaintiffs. extends to Fisher prevent a creBy his ditor, who is suing two proving his debt under a separate comagainst one. plea he admits a former liability; but says, that it partners, from has been discharged by his bankruptcy and certificate and the testimony of this witness being of fered to establish a joint contract, the effect of it, if established, will be that of lessening the burden mission issued 1820. BLANNIN v. TAYLOR. on Fisher's estate, and thereby of increasing the fund out of which his own debt is to be paid. The creditor, therefore, has a direct interest to establish that the contract in question was joint. HOLROYD, J., ruled that, by suing Fisher and Taylor jointly, the plaintiffs had made their election not to prove their debt under the commission issued against Fisher; and, therefore, that the verdict in this action could not affect the interests of Fisher's creditors. Jervis and Ludlow for the plaintiffs. Peake, Serjt., and Puller, for the defendant Taylor. Rigby, for the defendant Fisher. A creditor may, however, sue the solvent partner, notwithstanding he proves the joint debt under the bankrupt partner's commission. Heath v. Hall, 4 Taunt. 326. See also Young v. Hunter, 16 East. 252. |