sideration, when

where bankers seek to recover interest upon monies Megality of conadvanced to a customer, it is not sufficient to shew that it vitiates. it was the general custom of their house to charge interest calculated upon half yearly rests, without also shewing that such customer knew that such was the practice'.

In all cases where bankers make any charge by way of commission for extra trouble or expence they may be put to, in transacting the business of a party, it is advisable to detach the charges for the trouble of keeping the accounts from the charge of interest for forbearance; and if a banker undertake to conduct any transaction not in his ordinary mode of business, and stipulate for a certain charge to be made by him in consideration of such extra trouble and expence, independently "of all costs, charges, damages, and expences that he may be put to by means of the premises," it is not usurious; for trouble is not necessarily to be intended as a colorable reservation of further interest beyond the legal interest, but as a compensation for trouble not comprehended within the words costs, charges, damages, and expences"."

'Moore and others v. Voughton, 1 Stark. 487.

Palmer and Wilkins v. Baker, 1 M. & S. 57. The plaintiffs in this case were bankers, and had been put into possession of certain timber of I. H. and brought an action of trover against the defendant, who was sheriff of Worcestershire, to recover the value of part of the timber taken by him in execution, at the suit of a creditor of I. H. The cause was tried at the assizes at Worcester, and the plaintiffs had a verdict, subject to a question of law, upon the construction of a deed made between I. H. and the plaintiffs, which recited an agreement be tween I. H. and one I. L. for the purchase of growing timber, for £4800, which timber was to be paid for by I. H. part on the execution of the agreement, and the rest by bankers' acceptances at different dates. The indenture further recited, that I. H. being indebted to the plaintiffs in £1424, for the balance of an account between them, that he had agreed to assign the said agreement and all his interest under it to the plaintiffs, they undertaking to fulfil the agreement, with respect to the making the several payments at the times and in manner therein mentioned, upon the trust in the first place out of the proceeds which might from time to time arise from the sale of the timber, to retain and repay themselves the purchase-money, as aforesaid, then the said £1424, owing to them from I. H. upon his account stated, together with the interest thereof, at five per cent. up to the time of payment, and also the further sum of £200, as and for a reasonable profit and compensation for the trouble they would be at in the present business, and also all costs, charges, damages, and expences, which they should or might expend, be put to, or be

Illegality of consideration, when it vitiates.

The party discounting a bill should pay the amount, less the interest in cash, or if he give a bill or draft in exchange, he should allow a rebate of interest for the time the latter has to run; for, if he were to impose upon the party applying for the discount of such draft or bill, without allowing interest thereon, the transaction would be usurious'. But where A. being a banker in the country, discounted bills at four months for B., and took the whole interest for the time they had to run, and B. on being asked how he would have the money, directed part to be carried to his account, and

liable for, on account of the premises, or in anywise relating thereto. A rule nisi, for setting aside the verdict, was obtained, upon the ground that the covenant for payment of £200, (besides the money advanced by them, and interest thereon, and all costs, charges, damages, and expences) by way of compensation for trouble, was usurious upon the face of it, and therefore void, and upon cause shewn, the court were of opinion, that upon looking to the trusts of the deed, there appeared a considerable share of trouble imposed upon the persons who were to carry the trust into effect, which entitled them to compensation, and that to a considerable amount beyond the interest reserved, and although special provision was made for reimbursing them all costs, charges, damages, and expences, which they might be put unto, yet that was to be confined to expences incurred by them in cutting down and felling the timber, but that there might be other sources of expence incurred by them, which would not properly fall under either of those heads, and that, under the special circumstances of the case, the £200 was not more than their trouble might require in getting back their principal and interest, and discharged the rule.

I

Matthews, qui tam v. Griffiths, Peake 200.; and see also Hammett v. Yea, 1 Bos. & Pul. 144. Per Eyre, C. J.-Maddock v. Hammett, 7 T. R. 185.

Matthews, qui tam v. Griffiths and others, Peake's Ni. Pri. Ca. p. 200. This was an action on the statute against usury. The defendants were bankers at Portsmouth, and Mrs. S. residing there, drew a bill for £600, on her agent in London, payable to the defendants or order, thirty days after date, which the defendants discounted by giving her their note for £600, payable in London, at three days after sight; for this the defendants received a discount at five per cent. calculating on the thirty days the bill had to run, but making no deduction on account of the three days grace which the bankers took thereon; it appeared that the money to be received or the draft was intended to be remitted to London, but the defendants gave their note at three days sight, without asking any questions as to the mode in which she would be paid the money.

Lord Kenyon said he was clearly of opinion, that this was an usurious contract, whether the person discounting the bill, chose to receive a note or money. If Mrs. S. chose to have a note payable in town, the defendant should not have taken interest for the time that note had to run, but should compute his interest from the time it was payable. See also Floyer v. Edwards, Cowp. 112.

sideration, when

part to be paid in cash, and the residue by bills on Megality of conLondon, some at three, others at seven, and others at it vitiates. thirty days sight, it was decided not to be an usurious transaction so as to induce the court to grant a new trial, it appearing to have been entirely optional on the part of the holder, to receive the amount of the bill which was discounted in cash or bills'.

Where a party is compelled to take goods in discounting a bill of exchange, a presumption arises that the transaction is usurious, and to rebut this presumption, evidence must be given of the value of the goods by the person who has supplied the goods, and sues on the bill. But where in discounting a bill, a proposal is made that goods shall be taken, although such proposal originate with the plaintiff, yet if the other party readily accede to it, thinking that he shall make a profit by the transaction, the presumption is, that the goods are fairly charged, and it lies upon the defendant to prove the contrary if he would impeach the plaintiff's title to the bill upon the ground of usury3.

'Hammett v. Yea, 1 Bos. & Pul. 144. 152.

Davis v. Hardacre, 2 Campb. 375. Indorsee against the drawer of a bill of exchange, defence usury; it appeared that the defendant had applied to the plaintiff to discount a bill of exchange drawn by him. Plaintiff insisted, on consideration of his taking in part a landscape in imitation of Poussin, to be valued at £150. The defendant offered to prove that the plaintiff had purchased the picture for a less sum than £150, and which was its full value. Lord Ellenborough, before whom the cause was tried, said, “where a party is compelled to take goods in discounting a bill of exchange, I think a presumption arises that the transaction is usurious. To rebut this presumption, evidence should be given of the value of the goods by the person who sues on the bill. In the present case I must require such evidence to be adduced; and I wish it may be understood, that in similar cases, this is the rule by which I shall be governed for the future. When a man goes to get a bill discounted, his object is to procure cash, not to encumber himself with goods. Therefore, if goods are forced upon him, I must have proof that they were estimated at a sum for which he could render them available upon a re-sale, not at what might possibly be a fair price to charge to a purchaser who stood in need of them." 1 Holt C. N. P. 226. S. C. See also Pratt v. Wiley, 1 Esp. 40.-1 Esp. 11.

Coombe v. Miles, 2 Campb. 553. Defendant was acceptor of a bill of exchange drawn by Plimpton and Co. and by them indorsed to plaintiff. The defence was, that plaintiff had been guilty of usury in the discounting the bill, in obliging Plimpton to take a quantity of

Illegality of consideration, when it vitiates.

The charge of commission, with reference to bills, is not confined to a transaction of discount; for an agent may charge a reasonable commission beyond legal interest for his trouble in procuring the acceptance and payment of bills'. So bankers and others may sustain a similar charge for accepting and paying bills, being provided with funds for such purpose before they became due, in which case, as there would be no advance of money, the transaction could in no point of view be deemed usurious; but if an advance of money by such acceptors be in contemplation, it would then be a question of fact for a jury, whether the commission was a shift to obtain more than legal interest for the forbearance, or a compensation for the trouble and expence incurred in accepting and paying the bills. But if the acceptor of a bill, at the request of the holder, discount such bill, and receive more than five per cent. for the time it has to run, this transaction, however improper, will not constitute usury, it being a mere anticipation of payment by the party primarily liable on the bill, and not a transaction of loan or forbearance sufficient to bring it within the terms of the statute against usury'.

So where a person, in order to get his acceptances negotiated, agrees with a broker to allow him to re

ready-made waistcoats at a given price. Plimpton agreed to take the waistcoats, as he thought he could make a profit of them. It was contended for the defendant, on the authority of Davis v. Hardacre, (last note) that the plaintiff was bound to shew the waistcoats were of the value charged. Lord Ellenborough said, where circumstances of strong suspicion appear, I think it is fair to call upon the person who gives goods in discounting a bill of exchange, to shew that they were of the real value at which they were charged, but here, although the proposal to take the waistcoats originated with the plaintiff, the other party readily acceded to it, and said he thought he should make a profit by it. Upon this evidence therefore, we must presume that the goods were charged beneath their true value, and it lies on the defendant to prove to the contrary if he would impeach the plaintiff's title to the bill on the ground of usury. Verdict for plaintiff.

Baynes v. Fry, 15 Ves. 120.

2 Masterman T. Cowric, 3 Campb. 488.-Kent v. Lowen, 1 Campb. 178.-Hanner v. Borton, 2 Campb. 348.-See cases, 1 Taunt, 511.— 1 Holt C. N. P. 266.

Barclay v. Walmsley, 4 East. 55.-5 Esp. 11, S. C. but see Pothier Traite de l'Usure, part 2. sect. 5. num. 128.

sideration, when

it

vitiates.

tain exorbitant brokerage, as 10 per cent. out of the legality of conmoney received, upon getting them discounted, the broker himself, not being the party to discount them; a bill accepted and negotiated upon such agreement is not therefore void '.

tion to place it to

account.

It is said by Marius, that if the drawer of a bill is 15th, The direc himself to be the debtor, then he inserts in the bill these words" and put it to my account;" but if the drawee, or person to whom it is directed, be debtor to the drawer, then he inserts the following words— "and put it to your account;" and that sometimes, where a third person is debtor to the drawee, it is expressed in the bill thus-" and put it to the account of A. B.." It is, however, perfectly unnecessary to insert in a bill any of these words.

words,

"as per

(14) The propriety of inserting the words, "as 14th, Of the per advice," depends on the question whether or not advice." the person on whom the bill is drawn is to expect further direction from the drawer. Bills are sometimes made payable "as per advice;" at other times, "without further advice';" and generally without any of these words. In the former case, the drawee may not, but in the latter he may, pay before he has received advice.

(15)-To give effect to the bill, &c. the drawer's 15th, Drawer's name must either be subscribed, or inserted. in the

body of it; and it must be written either by the

Dagnall v. Wigley, 11 East. 43.—Ex parte Henson, 1 Maddox, 112. 'Mar. p. 27.-Com. Dig. tit. Merchant, F. 5.-Thomas v. Bishop, R. T. Hardw. 1, 2, 3.

Poth. pl. 36. 169.

* Beawes, pl. 3.-Elliott v. Cooper, Ld. Raym. 1376.-1 Stra. 609: 8 Mod. 307. S. C.-Ereskine v. Murray, Ld. Raym. 1542.-Taylor v. Dobbins, 1 Stra. 399.-Bayl. 16, 17.

Elliott v. Cowper, Stra. 609.-Ld. Raym. 1376.-8 Mod. 307.It was objected on demurrer to a declaration on a note, that it alleged only; that the defendant made it, but did not state that he signed it; bat, by the court, if he did not either write or sign it, he did not make it, for making implies signing, and making is alledged. Judgment for plaintiff.

Ereskine v. Murray, Ld. Raym. 1542. In an action on a bill, it was alleged, that the plaintiff made his bill in writing, and thereby required the defendant to pay. It was objected on error, that it did not appear that the plaintiff signed the bill; but it was answered that

name.