Wedlake v. Sargent.

except such as is stated in the summons; therefore objection may be taken to any evidence being given as to the capacity in which the defendant was charged for the work.

[MAULE, J. The 78th section declares, that in cases not expressly provided for by the act or rules, the general principle of practice in the superior courts is to apply. Now, there is a class of objections, and this is one of them, which ought to be taken as soon as possible. This is like an objection to the form of the declaration, which should be taken by way of demurrer, and is consequently cured by pleading.] The remaining point is, whether there was any evidence before the judge of the release having been given in fraud of the other plaintiffs. It is admitted, that if there was any evidence of such fraud, the present objection cannot prevail; but here there was no legal evidence on which a judge could have rightly directed a jury to find the release

fraudulent.

[MAULE, J. It is stated that the judge gave judgment for the plaintiffs, "remarking that the release was evidently a trick." Now, it is certainly no matter what remarks were made by him; we cannot look at them, but only at the judgment and the evidence.]

No; and the evidence showed that the releasing plaintiff never wished to bring the action, as he stated he was no party to it, and he had the purport of the deed explained to him before he executed it.

Cox, contrà. The question as to the fraud is one of fact, and therefore cannot be inquired into by this court.

[MAULE, J. Suppose there was no evidence whatever of fraud, would not a judge be bound to direct a jury accordingly? Or a bill of exceptions might be tendered.

WILLIAMS, J. What is the fraud here?]

That is not set out, but may be collected from the circumstances of the case. There was sufficient evidence, it is submitted, from which the judge might have found as he did.

Collier, in reply.

[MAULE, J. It is clear that this releasing plaintiff had, with the other plaintiffs, a joint interest in the cause of action. Then he is an illiterate person, unable to write, and is sought out by the clerk of the defendant's attorney to give this release. There is no reason why he should have given the release, and I think fraud may be therefore readily inferred.

TALFOURD, J. It is singular that the release does not refer to the action that was pending.]

It is submitted that fraud ought to have been clearly proved, and not presumed.

MAULE, J. It is not necessary to say how I should have found on these facts; but I cannot but say that there was, I think, some evidence of fraud.

WILLIAMS, J. I certainly think that there was evidence from which

Clack v. Sainsbury.

the judge might have found this deed to have been given fraudulently; and the appeal must, therefore, be dismissed.

TALFOURD, J. concurred.

Appeal dismissed, with costs.

CLACK V. SAINSBURY.1

November 20, 1851.

Usury-Exemptions-Bills at Three Months-Security on Land-Statutes 12 Anne 2, c. 16, s. 1; 3 & 4 Will. 4, c. 98, s. 7; 2 & 3 Vict. c. 37, s. 1.

The statute 3 & 4 Will. 4, c. 98, s. 7, which exempted from the provisions of the Usury Act (12 Anne 2, c. 16, s. 1,) bills of exchange not having more than three months to run, is not repealed by the statute 2 & 3 Vict. c. 37, s. 1, which, and the statutes continuing it, exempt from the operation of the usury laws all bills not having more than twelve months to run and all contracts above £10, provided there be no security upon land.

Therefore, bills not having more than three months to run, though for more than £5 per cent. interest, and though there be further security on land, are not void.

Assumpsit, on a bill of exchange for 401. drawn on the 15th of November, 1850, by the defendant upon and accepted by Charles Bromley, payable at two months after date; and for money lent, and on an account stated.

Plea―That heretofore, to wit, on the 13th of September, 1850, it was corruptly, and against the form of the statute in such case made and provided, agreed by and between the said C. Bromley and the plaintiff, that he, the plaintiff, should then, to wit, on the day and year last aforesaid, lend and advance to the said C. Bromley a certain sum of money, to wit, the sum of 371.; and that the plaintiff should forbear and give day of payment thereof to the said C. Bromley, from the day and year last aforesaid until and upon a certain day, to wit, the 15th of November, 1850; and that for the loan of the said sum of 371., and for giving day of payment thereof as aforesaid, the said C. Bromley should give and pay to the plaintiff, on the said 15th of November, 1850, more than lawful interest at and after the rate of 51. per cent. per annum on the said sum of 371., that is to say, the sum of 31., making, together with the said sum of 371. so to be lent and advanced as aforesaid, the sum of 40%.; and that for securing such payment to the plaintiff of the said sum of 40%., the said C. Bromley should then, to wit, on the said 13th of September, 1850, deliver to the plaintiff a certain bill of exchange, bearing date the 12th of September, 1850, and to be drawn by the defendant upon and accepted by the said C. Bromley, for the payment to the order of the defendant of 401. two months after the date thereof, and indorsed by

121 Law J. Rep. (N. s.) C. P. 41.

Clack v. Sainsbury.

the defendant in blank. That the plaintiff in pursuance of the said corrupt and unlawful agreement, did then, to wit, on the 13th of September, 1850, lend and advance the said sum of 371. to the said C. Bromley, on the terms aforesaid; and the said C. Bromley, in pursuance of the said corrupt and unlawful agreement, and upon the terms thereof, and for the purpose in that behalf aforesaid, did thereupon, then, to wit, on the 13th of September, 1850, deliver to the plaintiff such bill of exchange as last aforesaid, and thereupon the plaintiff took and received the said last-mentioned bill of exchange in pursuance of the said corrupt and unlawful agreement, and on the terms thereof, and for the purpose of securing the said repayment to the plaintiff of the said sum of 371. so lent and advanced by him as aforesaid, and the said payment of the said sum of 31. for such interest as aforesaid, which interest exceeds the rate of 51. for the forbearing of 1001. for a year, contrary to the form of the statute in such case made and provided. That afterwards, and when the said lastmentioned bill of exchange was due and payable according to the tenor and effect thereof, to wit, on the 15th of November, 1850, it was agreed by and between and amongst the plaintiff and the defendant and the said C. Bromley, that, in consideration of a certain sum of money, to wit, the sum of 31. to be paid by the said C. Bromley to the plaintiff, further time should be given by the plaintiff for the payment to him of the said sum of 401. in the said last-mentioned bill of exchange specified, to wit, until the 18th of January, 1851; and that for securing payment thereof as last aforesaid the defendant should make his other bill of exchange in writing, directed to the said C. Bromley, whereby the defendant should require the said C. Bromley to pay his, the defendant's, order the sum of 401. two months after date thereof, and that the said C. Bromley should accept the said last-mentioned bill of exchange, and that the defendant should indorse and deliver the same to the plaintiff, and that the said lastmentioned bill should be taken and received by the plaintiff in renewal of and substitution for the said bill of exchange in this plea first mentioned. That afterwards, to wit, on the day and year last aforesaid, in pursuance of the said last-mentioned agreement, he, the defendant, did make and the said C. Bromley did then accept such bill of exchange as in that behalf aforesaid, and the defendant did then indorse and deliver the same to the plaintiff, who did thereupon, then and in pursuance of the said last-mentioned agreement, take and receive the same in renewal of and substitution for the said bill of exchange in this plea first mentioned, and for the purpose of securing repayment to him, as in that behalf aforesaid, of the said sum of 37%. so lent and advanced by him to the said C. Bromley, upon such corrupt and unlawful agreement as aforesaid, and the payment of the said first-mentioned sum of 31. for such interest as aforesaid, which said bill of exchange in this plea secondly mentioned was and is the said bill of exchange in the said first count mentioned. That there never was any other consideration, except as in that behalf aforesaid, for the said indorsement and delivery by the defendant to the plaintiff of the said last-mentioned bill of exchange or for the plaintiff

Clack v. Sainsbury.

being the holder thereof, and the plaintiff hath always held and now holds the same for and upon such consideration, as in that behalf aforesaid, and not for or upon any other consideration whatsoever. Verification.

Replication. That each of the said contracts and bills of exchange in the said second plea mentioned was made and entered into, drawn and accepted, and indorsed respectively, and the said several matters and things therein mentioned occurred and took place as in the said plea respectively alleged, after the coming into operation of a certain statute, made and passed in a session of parliament held in the 3rd and 4th years of William the Fourth, intituled "An Act for giving to the Corporation of the Governor and Company of the Bank of England certain privileges for a limited period," and while the provisions of the same statute were and remained in force and unrepealed. That the said contract or agreement for the said loan and the said loan in the said second plea mentioned, were made upon security of the said bill of exchange in the said second plea mentioned, which was made payable within three months, that is, two months from the date thereof, and not otherwise. Verification.

Rejoinder. That each of the said contracts and bills of exchange in the said second plea mentioned, was made and entered into, drawn, accepted, and indorsed respectively, and the said several matters and things therein mentioned occurred and took place as in the said second plea respectively alleged, after the passing and coming into operation of a certain statute, made and passed in the first year of the reign of her present Majesty Queen Victoria, intituled " An Act to except certain bills of exchange and promissory notes from the operation of the laws relating to usury," and after various other acts (recited in the rejoinder,) the last being the 8 & 9 Vict., which continued in force. Verification.

Demurrer.

66

Phinn, in support of the demurrer. The plea is bad, since it sets up a defence under a repealed statute. The 12 Anne 2, c. 16, s. 1, enacts that no person, upon any contract, take directly or indirectly, for loan of any moneys, wares, &c. above the value of 51. for the forbearance of 100l. for a year," and avoids all bonds and securities for such contract, and inflicts a penalty for entering into such contract. By the 3 & 4 Will. 4, c. 98, s. 7, all bills not having more than three months to run, were exempted from the provisions of the usury laws. The 7 Will. 4 & 1 Vict. c. 80, extended the exemption to all bills not having more than twelve months to run, and was to continue in force till the first of January, 1840. By the 2 & 3 Vict. c. 37, s. 1, it was provided that no bill or note not having more than twelve months to run, nor any contract for the loan or forbearance of money above 10%. shall, by reason of any interest agreed on, &c. nor shall the interest of any persons be affected by the laws for the prevention of usury, nor shall the parties be subject to penalties; with the proviso, that the enactment was not to extend to any loan or forbearance on the security of lands, tenements, or hereditaments, or any

Clack v. Sainsbury.

interest therein. This enactment has been continued by several statutes. The bill declared on in the present case, would have been bad under the statute of Anne, but is good under the statute 3 & 4 Will. 4, c. 98. The latter statute amounts to an unqualified repeal of the statute of Anne with respect to bills of exchange not having more than three months to run. The act 2 & 3 Vict. c. 37, cannot be taken as repealing the 3 & 4 Will. 4, but is only a qualified repeal of the statute of Anne. An affirmative statute, such as that of the 2 & 3 Vict., cannot repeal a former one unless it contains distinct language showing the intention to do so. If the cases under the 2 & 3 Vict. be cited on the other side, they are easily distinguishable. In the case of Derry v. Toll, 5 Exch. Rep. 741; s. c. 20 Law J. Rep. (N. s.) Exch. 33; s. c. 1 Eng. Rep. 440, it was held that in pleading usury it is sufficient to bring the matter within the statute of Anne, and the plaintiff must take advantage of the statute 2 & 3 Vict. c. 37, by way of replication. But the transaction in that case was protected only by the statute of Victoria. The Chief Baron said there, that the statute of Anne remains in force except as to the transactions mentioned in the statute of Victoria. The case of Derry v. Toll is founded upon Washbourn v. Burrows, 1 Ibid. 107; s. c. 16 Law J. Rep. (N. s.) Exch. 266. There the action was in covenant, on an indenture, and the plea alleged that the covenant was entered into in pursuance of an usurious contract for the payment of interest secured by a deed of bargain and sale of chattels and growing crops. The replication was, that the covenant was entered into after the 2 & 3 Vict. c. 37. It was held, that the plea was good, and that the replication should have been, that the contract was after the 2 & 3 Vict. c. 37, and that the security did not relate to land. The act of Victoria was held to repeal the statute of Anne in a qualified manner, and the Court thought it was sufficient for the defendant to show that the case was under the statute of Anne. But the present case is very different, as it depends upon the statute 3 & 4 Will. 4, c. 98, which amounts to an unqualified repeal of the former act as to bills not having more than three months to run. In Follett v. Moore, 4 Exch. Rep. 410; s. c. 19 Law J. Rep. (N. s.) Exch. 6, the point decided was, that the note in question was not a promissory note under the 3 & 4 Will. 4, c. 98, s. 7. A query was made in that case whether if the note had been within that statute it would have been protected, as the loan was further secured by a security on land. It is not necessary in the present case to argue that three months' bills involving a security on land, are still good notwithstanding the proviso in the act of Victoria. The allegation as to the security on land is one which ought to come from the other side-Doe d. Haughton v. King, 11 Mee. & W. 333; s. c. 12 Law J. Rep. (N. s.) Exch. 320.

[MAULE, J. If the statute of Victoria does away by absorption with the statute of William, then when usury is imputed under the statute of Anne, the person accused must confess and bring himself within the act of Victoria.]

But if the statute of Anne is repealed by that of Will. 4, the pleadings would be in this manner. The defendant would plead a plea