amongst the papers of the plaintiffs's ancestor. There was a succession of
tenants on tract No. 1, of a ferry and the adjacent fields, all of whom ac-
knowledged themselves as the tenants of the plaintiffs's ancestor. On the
side of the river, opposite, resided the general agent of the owner, who had
the supervision of his lands on both sides, in reference to whose authority
the tenants held; but neither the tenants nor the agent knew the true boun-
daries of their landlord's ownership.

6. Although the plat of re-survey did not appear to have been made for
the then owner of the land embraced in it, yet as it was found amongst his
papers, it was ancillary to support and explain the united title; and from
the time of its execution, the several tracts constituted an entirety.

7. Although the tract had been owned in separate parcels, by different
proprietors, yet, from the time that the ancestor of the plaintiffs acquired
the whole interest, they became united.

8. It was held that the possession of the tenants was co extensive with
the boundaries of the entire tract, although they were ignorant of their ex-
tent, and that defendant could not claim more of the land in dispute than had
been held under possessio pedis, for the statutory period.

9. A possession of a part, under a definite color of title, is possession of
the whole; and where there are two possessions on the same body of land,
one under a senior and another under a junior grant, the senior title will
prevail. Alston vs. Collins, 450.

10. Trespass to try titles. The parcel of land in dispute was an old field
consisting of two or three acres; defendant in 1839 entered as the tenant of
the plaintiff of a house and some lands around it, the house standing a few
yards north of the disputed land, which was situated between a cross fence
built by defendant in 1842, and a piece of new cleared land which the de-
fendant had in possession there before and since. At the southern extremity
of the disputed parcel was a pond immediately north of the new cleared land,
The plaintiff contended that the land in dispute was a part of the tract on
which the house stood, and of which he had title, whereas the defendant,
admitting that he did become the tenant of the plaintiff of the house and
some lands around it, contended that it was part of another tract of which he
was in possession under an agreement to purchase. The plaintiff failed to
make out either a paper or a statutory title against the title under which
defendant claimed. It was in evidence that at a period prior to 1810 a per-
son had lived on the grant under which plaintiff claimed, and had cultivated
below the cross fence put up by defendant, to within ten or fifteen steps of
the pond. In 1811 one Carwell went into possession as a tenant to this ex-
tent, and enlarged it. It was afterwards called Caldwell's old field, and the
proof was that it extended below the pond. The plaintiff purchased at
sheriff's sale, one of the descriptions given being the Carwell old place. It
was proved that the defendant had said he was tenant of plaintiff and had
spoken of renting the Carwell old place from him. It was held, that this
was sufficient to authorize the jury in concluding, that all the land cleared
by Carwell and passing under the name of his old place, was rented by de-
fendant. Haile vs. Cantey, 678.

TROVER. Vide Evidence 7; Mortgage, 10.

1. Testator died leaving three sons, John, William and James, and one
daughter. By his will he gave legacies to each of his other children, and
to William, ten negroes, including all their future increase, to him and his
heirs forever. In a succeeding clause, he declares, "It is my will and de-

sire, that if any of my said four children should die before marriage, with-
out leaving lawful issue, then, and in that case, the share of property which
I have given to them, or either of them, with all their future increase, is to
be equally divided among the surviving part of them, and their heirs for-
ever." The several legacies were delivered to the children by the execu-
tors. William sold a girl to the defendant, who had no notice of the limi-
tations of the will, and made an absolute title with warranty. John and
Mary died, and afterwards, William, before marriage and without lawful
issue, leaving James sole survivor of the four children. In an action of
trover brought by him to recover the value of the property, it was held that
the limitation over to the surviving children, was good.

2. The jury were bound to find the value and hire; they had a discretion
between the highest and lowest estimates. Rodgers vs. Randall, 38.

3. Trover for two slaves. Plaintiff's title depended on an instrument to
the following effect. The original owner of the property in dispute, in
consideration that plaintiff would support her for life, executed an agree
ment, whereby she declared that she did "make over unto the said T. P.,
his heirs and assigns, all her right and title to a certain negro woman (by
name) and her child, notwithstanding the said woman and child is still to be
under her power, that is to say, the said M. P., during her life time, but at
her decease to be the property of T. P."

4. It was held, that this instrument could not operate as a contract, be-
cause the consideration to be performed on the part of plaintiff was a con-
dition precedent to any thing to be done by the other party, and with which
he had not complied; nor as a deed of conveyance. As a mere contract
to make a will in plaintiff's favor, it could have no effect.

5. Held, also, that as a testamentary paper, it was void, having but a sin-
gle witness.

6. It having been proved that the original owner of the slaves in dispute
had lived with the defendant fifteen or twenty years, and had frequently de-
clared that she intended the slaves for him as a compensation for his care of
her, it was held, that a letter addressed to him subsequent to the alleged con-
veyance to plaintiff, declaring "all she had was for him at her death, as a
compensation for taking care of her," was admissible in evidence, the letter
and the antecedent declarations of the same purport constituting his supposed
title.

7. As defendant claimed to be a creditor of the original owner of the
slaves, for care and support, beyond the whole value of her estate, and as
the letter addressed to him acknowledged that, by saying that all she had
was for him at her death, as a compensation for taking care of her, it was
in this point of view admissible in evidence. Although defendant's claim
could not prevail on either ground, because, as administrator of the former
owner of the slaves, he could not object to the deed to T. P., on account of
its being a fraud upon her creditors, yet the proof was still admissible.
Crawford vs. McElvey, 225.

USURY.

1. A lender, to whom $2163 33, was bona fide due in February, 1840,
then made an agreement for the forbearance of $2000, the original princi-
pal, at the rate of 12 1-2 per cent. the $163 33, at that time being paid, and
two notes given, the one for the $2000, bearing lawful interest, the other
for the usury for a year. One year afterwards, (February, 1841,) a re-
newal note was taken for the principal, and a year's interest, (82140,) and a

second note for usury. In December, 1841, the two notes for usury were
paid, and in March, 1842, another renewal note was taken for $2140, and
a year's interest thereon, making $2289 80, bearing interest from the 1st
of February, 1842.

2. In an action upon this last note, the defence of usury being made out,
it was held that upon the construction of the statute, (6 Stat. 409,) the usury
taken must be deducted, not from the principal of the last note, but from
$2000, as the original principal, leaving the balance as the sum to be re-
covered without interest or costs. Clark vs. Hunter, 83.

3. On a contract of sale between partners in a factory, the interest of the
partner selling was by agreement estimated at ten per cent upon it for a given
time, to which was added debts then due by the purchaser to the seller, in-
cluding interest at seven per cent, thus making one aggregate sum, which
was divided into five equal instalments, and interest at ten per cent calcula-
ted on each. A general aggregate was thus made which was divided into
five equal parts, and five single bills executed, one for each part, payable in
five successive years. The calculation in the hand writing of the partner sel-
ling, called the ten per cent on each instalment, interest. The proposition
of purchase was to take the co-partner's interest at ten per cent, on his
stock, seven per cent cn borrowed money, and all to be at ten (meaning ten
per cent) from a particular date. It was held that the single bills were

usurious.

4. Held further, that as the money loaned to the purchaser by the seller
before the contract of sale, and at that time a subsisting debt, was included
in the contract, and ten per cent allowed on it, this amounted to usury.
Garlington ads. Coleman, 238.

VARIANCE. Vide Pleading, 20.
VENIRE.

1. Where a prisoner was indicted and convicted for murder, and it ap-
peared that the writs of venire, by which the grand and petit jurors were
summoned, were without the seal of the court, judgment was arrested.

2. A venire, not under seal, is no writ, and is not authority to the sheriff
to summon the jury.

3. The writs of venire, for both juries, are parts of the record of con-
viction. State vs. Dozier, 211.

VERDICT. Vide Attachment, 15, 16; Indictment, 5; Pleading, 17, 19,
32; Practice, 4.

WAIVER. Vide Apportionment, 2; Contract, 20; Evidence, 17; Plead-
ing, 4.

WARRANTY. Vide Contract, 5; Implied Warranty, 1. 2; Interest, 1.

1. Where the grantor of a tract of land warrants it in his deed to be
free from all incumbrances, a prior outstanding lease on the premises made
by him, and not noticed in the conveyance, is an incumbrance on the land,
within the legal meaning of that term, and in covenant on the deed, a breach
on this ground is well assigned.

2. Where the grantor of a tract of land covenants against all incum-
brances, it cannot be shewn by parol, that he did not warrant against a par-
ticular incumbrance: therefore, a plea avering that plaintiff had notice of
the outstanding lease was no bar to the action, and a general demurrer
thereto should have been sustained.

3. Whether the plaintiff was entitled to the rent, or whether paid in ad-
vance, or adequate to the injury sustained, are questions which might arise

46.

on the trial of the question of damages, but could not be decided on a general demurrer. Grice vs. Scarborough, 649.

WAY.

1. A testator, who for more than twenty years had used a way over his own land by which a highway was reached, except for a short distance over a neighbor's land, died in 1831, having devised his land to his three sons, C, W and B, equally to be divided between them. The sons made partition between themselves, and without deeds from one to the other, severally took possession of their parcels under a bond for titles. W. acquired the parcel on which the house stood, and sold to the plaintiff; C. that next the highway, through which the way ran, made a lane, and sold to defendant, who, after permitting the lane to remain open for some time, closed it up entirely, after which plaintiff brought case for the obstruction.

Held, 1st. That whilst there was unity of possession in the testator no right of way arose.

2nd. That since the partition the time had been too short to confirm any possession of verbal acknowledgment that had occurred in that time. Payne vs. Williams, 15.

WILLS.

1. Although undue influence, being a question of fact, belongs to the decision of the jury, yet the presiding Judge may also express his opinion upon the facts, avoiding all undue control of the jury. Such expression of his opinion, or his silence on that head, must be left to his own sound discretion. The circumstances of the case may render such aid necessary, or superfluous.

2. Where the court perceives but very little in the evidence to shew that a testator's mind was unsound, and even that opposed by good evidence especially that of the subscribing witnesses, and a verdict has been rendered against the will, most probably upon this ground, upon unsatisfactory testimony of little more than bare opinions, a new trial will be ordered.

3. It is the incidental privilege of courts of justice to reconsider, or to have reconsidered, their possible errors; and although from the constitution of juries being temporary, they cannot themselves reconsider, their privilege, like that of a Circuit Judge, being placed in other hands, yet still, it is no less their privilege on that account.

4. It is at the foundation of all new trials by a jury, that they will probably render a different verdict. But they are always granted without prejudice to their rendering the same verdict.

5. Where undue influence is the predicate of a verdict setting aside a will, it should be brought to bear against the true disposing mind of the testator in the matter and subject of his last will.

6. It is not enough that there has been a general influence merely, which may or may not have been used fraudulently or unduly, and to which general influence so many men are habitually subject.

7. The cases of Thompson vs. Farr, 1 Spears's Rep. 93; Hobby vs. Bobo, M. S. Dec. vol. 54; Tompkins vs. Tompkins, 1 Bail. 92; and Lide vs. Lide, 2 Brev. 403, referred to as embracing the principles of this decision. Martin and Wife et al. vs. Executors of Teague, 260.

WITNESS. Vide Books of Account, 1; Costs, 1, 2; Evidence, 18, 23, 26; Partners, 1, 2.

WRIT OF INQUIRY. Vide Practice, 32.

WRIT OF VENIRE FACIAS. Vide Venire.

1