mises to the defendant; and the defendant covenanted to pay the 300%. and interest at the time appointed for payment. There was also a stipulation, that, in default of payment, the plaintiff might take possession of the premises. The deed was, in fact executed on the 23rd of August, 1834. No principal, interest, or rent had ever been paid by the defendant. In February, 1854, the plaintiff brought ejectment :-Held, that the deed was a sufficient acknowledgment, within the 3 & 4 Will. 4, c. 27, s. 14, of the plaintiff's title at the time of the execution of the deed, and consequently his right of entry was not barred. Jayne v. Hughes, 430

SUPPORT, (RIGHT OF). See MINE.

TENANT'S FIXTURES. See FIXTURES.

TENDER.

See PLEA, (3).

TON-" LONG WEIGHT." See WEIGHTS AND MEASURES.

TRADE FIXTURES.

See FIXTURES.

USAGE OF TRADE. See CONTRACT, (1).

USURY.

(1). Deed.

By articles of agreement under seal, made the 22nd of February, 1853, the plaintiff covenanted with the defendant, 1st, to lend him 15,000l., upon the terms and security and at the times thereinafter mentioned. 2ndly, that the plaintiff shall advance all or any portion of 12,000l., part of the 15,000, at any

time or times within nine calendar months from the date of the agreement, upon receiving from the defendant one calendar month's notice in writing, from time to time, of the sum required to be advanced: Provided, that, if the defendant shall provide security of sufficient value, he is to have 40007., part of the 12,000l., on request. 3rdly, that the plaintiff shall advance to the defendant 3,000l., being the residue of the 15,000l., within three calendar months after the expiration of the nine months, upon receiving from the defendant one calendar month's notice, in writing, of the sum required to be advanced. 4thly, that the term for which all or any portion of the 15,000l. is to be advanced, is three years from the date of the agreement, and is then to be repaid, if the plaintiff shall have then given six calendar months' notice that he requires the same to be repaid. 5thly, that, in consideration of this agreement, the defendant covenants to pay the plaintiff, by way of premium, 11. per cent. per annum on the whole 15,000l., from the date of the agreement up to the expiration of three years, whatever may be the sum of money advanced under the agreement. 6thly, that interest, at the rate of 47. per cent. per annum, shall be paid by the defendant to the plaintiff on all sums of money advanced under the agreement, to commence to run from the day or days of such advances; the said 4l. per cent. to be in addition to the 11. per cent. before reserved. 7thly, that, for securing any sum of money advanced, the plaintiff shall execute a mortgage of certain lands. 11thly, that, before any advance of money shall be made under the agreement, the solicitor of the plaintiff shall investigate the title of the defendant to the land proposed as the mortgage security, and such title shall be approved or

rejected within seven days after the delivery of the abstract of title: Provided, that the said solicitor shall be at liberty to accept or reject such title at his own option; but, if the same is rejected, and no advance shall have been made, then the agreement to be null and void. 13thly, that, if the defendant shall give the plaintiff one month's notice in writing of any sum of money to be advanced to him under the agreement, and he shall not take up the money at the expiration of the notice, 47. per cent. interest shall be payable by the defendant to the plaintiff in respect of the sum specified in such notice from the day such notice shall expire, in the event of the defendant, at any time thereafter, requiring an equal or larger advance; and if he shall only require a smaller advance, then such interest as aforesaid, from the time aforesaid, shall be payable on such smaller sum. 17thly, that, if the defendant shall at any time be desirous of paying off the advances made to him, or any portion of them, it shall be lawful for him so to do, upon giving two calendar months' notice in writing to the plaintiff of his intention, and the plaintiff agrees to accept the same; but such payment or payments shall not in any way interfere with or annul the 5th article of this agreement :-Held, first, that the deed was not, upon the face of it, usurious, inasmuch as the premium of 17. per cent. was not to be paid for forbearance of a loan, but as a compensation for the agreement to be ready to advance the 15,000l. in the manner required; Secondly, that an advance of some money was not a condition precedent to the obligation to pay the 17. per cent. -per Parke, B., and Martin, B.; Platt, B., dissentiente.

Held, also, that where money is lent at usurious interest on personal security, as well as on security on

land, the contract is altogether void, and is not protected, as to the personal security, by the 2 & 3 Vict. c. 37. Fussell v. Daniel, 581

(2) Promissory Note.

A delaration stated, that, in consideration the plaintiff would discount the joint and several promissory note for 7007., payable three months after date, of the defendant and one H. S., the defendant promised the plaintiff, in the event of the note not being paid at maturity, to pay him interest on the amount of the note, at the rate of 1s. in the pound per month: The declaration then alleged, that the plaintiff did then discount the said note, and that it was not paid at maturity, and still remained unpaid; and laid as a breach the nonpayment by the defendant of certain of the monthly instalments. Plea: that it was corruptly agreed between the plaintiff, the defendant, and H. S., that the plaintiff should discount the note, and, as the proceeds of such discounting, advance to the defendant 5957. only, and that the plaintiff should receive for such advance the amount of the note on its arriving at maturity, and that the plaintiff should give further day of payment of the amount of the note for an indefinite period, to commence when the note should become due; and that, for the forbearing of payment of the sum of 5957., the defendant should pay the plaintiff 105., being the difference between 700l. and 595l., three months after the advance, and for the forbearing of payment on the sum of 700l. so made up, such sum of 18. in the pound per month, on the sum of 700., payable monthly as in the declaration mentioned. The plea then alleged, that, to secure the said loan and interest thereon, the defendant agreed to confess, and did confess a judgment against himself

to the plaintiff for 14007., and that the said judgment was duly registered in the Court of Common Pleas, in the mode provided for by the statute in order to affect the lands, tenements, and hereditaments of the defendant-Held, that the plea was bad, the agreement relied upon not being usurious; and that, as the transaction was based on a promissory note, the whole transaction was rendered legal by the 3 & 4 Will. 4, c. 98, s. 7. Semple v. Cornewall. 617

WAGER.

See BILL OF EXCHANGE, (2). To an action for money had and received, the defendant pleaded, that the money had been deposited by the plaintiff in the defendant's hands, as stakeholder, to abide the event of a certain illegal game, on which event the money had been wagered by the plaintiff. Replication, that, before the result of the wager was ascertained, the plaintiff repudiated the wager, and required the defendant to repay the money to him:-Held, on demurrer, that the replication was good, and that the plea was bad for not alleging that the wager had been determined. Martin v. Hewson, 737

WARRANT OF ATTORNEY.

See INSOLVENT.

WARRANTY.

An agreement for the sale and delivery of certain oil, described as "foreign refined rape oil, warranted only equal to samples," is not complied with by the tender of oil which is not " foreign refined rape oil," although it be equal to the quality of the samples. Nichol v. Godts, 191

WASTE. See COMMON.

WATERWORKS.

See BRISTOL WATERWORKS.

WAY.

(1). User" as of Right."

In 1823, M. built two adjoining houses, behind each of which was a piece of ground appropriated as a yard, but no wall divided the yards. In 1832, M. permitted the defendant to occupy one of the houses without payment of rent, and he was accustomed to pass over the yard of the other house, which was let from time to time to different tenants, to a public highway. M. continued owner of both houses until his death in December, 1838. In August, 1839, the trustees under his will conveyed the last-mentioned house and the ground behind it to a person through whom the plaintiff derived his title. In September, 1839, the trustees conveyed the other house and ground to the defendant, who continued to occupy it, and use the way across the plaintiff's yard without interruption until the year 1853-Held, that there was no user of the way "as of right" for twenty years, within the meaning of the 2 & 3 Will. 4, c. 71, s. 2. Windship v. Hudspeth,

(2). Of Necessity.

5

A right of way of necessity can only arise by grant, express or implied.

Where, to an action of trespass qu. cl. fr., the defendant pleaded, that one N. S., until and at the time of his death, was seised as well of the said close in which, &c., holden by him of the manor of H., as also of another adjoining close, called Y., holden of the manor of T.; and that the said N. S. had no way to close Y. except over the said close in which, &c.; and that on his death the said closes respectively escheated to the lords of the manors of H. and

T., and that the lord of T., by virtue of the premises, from and after the death of the said N. S., until and at the time when, &c. necessarily had and still of right ought to have a certain necessary way on foot, &c. over the said close, &c., to and from the said close called Y., at all times of the year, for the necessary use and occupation of the close called Y., the same being such way as had been and was used in the lifetime, and until and at the time of the death of the said N. S., and the most convenient way over the said close, in which, &c., to the said other close. The plea then justified the trespasses as the servant of the lord of the manor of T.-Held, on the motion for judgment non obstante veredicto, that the plea was bad.

Held, also, that, assuming title by escheat to be equivalent to title by grant, the plea was bad in not averring that the lord of the manor of T. had no other way at the time of the trespass. Proctor v. Hodgson, 824

WRIT OF SUMMONS.
See DECLARATION.
(1). Special Indorsement.

In an action on a bill of exchange, the writ was specially indorsed for 317. 88. 9d. "being balance of principal, interest, and expenses of noting, due on a bill of exchange for 75l. 98. dated &c. -Held, that the expenses of noting were not a liquidated demand" within the 27th section of the Common Law Procedure Act, (1852), 15 & 16 Vict. c. 76, and consequently, that the indorsement was irregular, and the plaintiff was not entitled to sign final judgment under the 29th section, on the failure of the defendant to enter an appearance within the specified time. Rogers v. Hunt, 474

(2). Indorsement of Interest.

The 25th section of "The Common Law Procedure Act, 1852" which enables a plaintiff to make on the writ of summons a special indorsement of his claim, with interest, is not confined to cases in which interest is payable by contract, express or implied. Therefore, where a plaintiff by such indorsement claimed interest on an I. O. U., and in default of appearance signed judgment:-Held, that the judgment was regular.

But, in all cases, except of those of bills of exchange and promissory notes, if a plaintiff, by such indorsement, claims interest where it is not due by contract, express or implied, and on default of appearance signs judgment for it, the Court will set aside the judgment, and make the attorney pay the costs. Rodway v. Lucas, 667