1797. HUTCHINS V. HESKETH. foner to affign his effects by amending his schedule, and moved that he might be brought up for that purpose. Sed EYRE Ch. J. This motion is not made on any affiper davit, ftating any mifapprehenfion on the part of the prifoner at the time of delivering in his schedule. What reason then is there for our doing what is defired of us? If a man in the fituation of the Defendant had made a mistake, the Court would go as far as poffible to affift him. But this is not that cafe. This is a detected man who has dared to give in a schedule as the schedule of a man without effects, when he really had effects. Here we are without apology for allowing him to amend his schedule. Should we affift him in his attempt to avoid those heavy penalties which are impofed by the act on perfons who have conducted themfelves in this way? He may poffibly efcape those penalties for aught I know, but it must not be by any act of this Court. Nor is it neceffary for the fake of the creditor that we fhould interpofe. If the Defendant really has fuch effects as the Plaintiff fuppofes, he may procure a title to them without coming to this Court. We fhall not, after what has paffed, order the prifoner to be brought up on this fuggeftion. Clayton Serjt. took nothing by his motion. Nov. 25th. 3 Bof. & Pull. 154. 4.being a banker in the country, discounts bills at four months for B. and takes the for the time they have to run; B. whole interest on being asked how he will have the money, di rects part to be carried to his account, part to be paid eat and part by bills on London, fome at three, fome at feven, and fome at 30 days' fight; and held not to Sir B. HAMMET, Knt. and Others v. Sir W. YEA, Bart. Pleas.-ft, Non eft factum; 2d, 3d, and 4th, Ufury in the manner of difcounting a promiffory note for 1800l. dated the 13th of August 1795, and payable four months after date. 5th and 6th, Ufury in the manner of difcounting a promiflory note for 3000l. dated the 25th August 1795, and payable four months after date. 7th and 8th, Ufury in the manner of difcounting a promiffory note for 2300l. dated the 17th Sept. 1795, and payable four months after date: Each of the feven laft pleas averring that the bond in question was given to secure to the plaintiffs (among other fums of money) the payment of the promiffory note to which it related. -Replication. Iffue joined on the firft plea. To the seven last, that it was not corruptly and against the ftatute, &c. agreed,. be an ufurious tranfaction, so as to induce the Court to grant a new trial, fince the furplus of interest taken by 4. might be referable to the expences of remittance. &c. as the faid defendant hath in that behalf alleged;" tendering iffue. (a) (a) The fpecial pleas, which were drawn and fettled with much confideration, were as follow: Ift, That after the 29th day of September A. D. 1714, and before the making of the faid writing obligatory, to wit, on the 14th day of August, A. D. 1795, at, 6. the faid J. H. was poffeffed of and interested in a certain note in writing, commonly called a promiffory note, bearing date the 13th day of Auguft in the faid year of our Lord 1795, made and subfcribed by the faid . H., whereby the faid J. H. four months after date pro. mifed to pay to the faid Sir William Yea or order 1800l. value received. And the faid Sir W. afterwards, to wit, on, &c. at, c. indoried the faid promiffory note; his own hand, being thereunto fubfcribed, and delivered the faid promiffry note fo indorfed to the faid J. H., and the faid promiffory note being fo made and indorfed, and the faid . H. being fo poffeffed thereof as aforesaid, after the 29th day of September A. D. 1714, and before the making of the faid writing obligatory, to wit. on, &c. at, &c. it was corruptly and against the ftatute made in fuch cafe agreed between the faid Plaintiffs, then and there being bankers and partners, and carrying on the bufineis of bankers in parmer hip, and the tard 7. H. that the faid Plaintiffs fhould lend to the faid . H. 17701. in manner following; (that is to fay,) that the faid Plaintiffs, on the faid 14th day of Auguft in the faid year of our Lord 1795, at Taunton in the county of Somerfet, to wit, at London atorefaid, in the parish and ward aforesaid, fhould deliver to the faid 7. H. a certain bill of exchange in writing, drawn by them the faid Plaintiffs on certain perfons trading under the ftile and firm of Sir James Efdaile and Co. for sool. payable three days after fight of that bill of exchange; and alfo a certain other bill of exchange in writing, drawn by them the faid Plaintiffs upon the faid perfons trading under the file and firm of Sir James Efdaile and Co. for other 500 payable feven days after fight of the faid haft mentioned bill of exchange; and that the Plaintiffs then and there, to wit, en, e. at, &c. fhould lend and advance to the said . H. other 470l. and should give credit to the faid 7. H. for other gcol. in account between them the faid Rejoinder. Plaintiffs, as fuch bankers and partners as aforefaid and the faid J. H.; and that they the said Plaintiffs then and there, to wit, où, &c. fhould forbear and give day of payment to the faid 7. H. of the faid 170l. to to be lent to the faid 7. H. in manner aforefaid, until the faid 1800. mentioned in the faid promiffory note thould become due and payable according to the form and effect thereof; (that is to fay,) until the 16th day of December in the faid year of our Lord 1795, and that they the faid Plaintiffs for fuch loan and forbearance of the faid 17701. fo to be lent and forborne as aforefaid, thould take 30%. when the faid 1800l. mentioned in the faid promiffory note fhould become due and payable according to the form and effect thereof, to wit, on the 16th day of December in the aid year of our Lord 1795, and that for fecuring the payment to the faid Plaintiffs, as well of the faid 1770l. as of the laid 30%, the faid J. H. fhould deliver to the faid Plaintiffs the faid promilfory note fo made and indorfed as aforefaid, to wit, at, c. And the faid Sir W. further faith, That in pursuance of the laid agreement, the said Plaintiffs afterwards, to wit, on, &c. at, &'s. did lend to the faid J. H. the faid 1770l. in the manner fo agreed upon as aforefaid, and did forbear and give day of payment of the faid 1770. until the faid 1800l. mentioned in the laid promiffory note fhould become due and payable according to the form and effect thereof, to wit, until the 16th day of December in the faid year of our Lord 1795. And the fa d Sir W. further faith, That in further purfuance of the faid agreement, and for fecuring the payment to the faid Plaintiffs, as well of the faid 1770l. as of the faid 30%. the faid . H. afterwards, to wit, on, &c. at, &c. did deliver to the faid Plaintiffs, and the faid Plaintiffs did take and receive from the faid . H. the faid promiffory note to made and indorfed as aforetaid: And the faid Sir W. further faith, That the faid 30. fo agreed to be taken as last aforefaid by the faid Plaintiffs for the faid loan and forbearance of the faid 1770. in the manner fo agreed upon as aforefaid, is above the rate of 51. for the forbearance of 100l. for a year, to wit, at, c. And the faid Sir W. further faith, That he the faid Sir W. afterwards, and after the said 29th day of Sept. 1797. Sir B. HAM METT v. Sir W YEA. [147] Rejoinder. Iffue joined. The bond in queftion was given to fecure the payment of six promiffory notes at four months, drawn by one James Haviland, to the order of the Defendant, and by him indorfed to the Plaintiffs, who were bankers at Taunton, (viz. one dated the 1ft of July for 1500l.; one dated the 13th of Auguft for 1800l.; one dated the 25th of August for 3000l.; one dated the 17th Sept. for 2300l.; one dated the 17th of October for 2000l.; and one dated the 26th of October for 2000l.; amounting in all to 12,600l.), and all of which had been discounted by them. The Sept. A.D. 1714., to wit, on, &c. at, &c. The 2d plea ftated a corrupt agreement come due. The 3d plea; That the Plaintiffs should give credit to J. H. for 3col. on the 14th Aug. and fhould forbear and give day of payment of that fum till the promiffory note fhould become due; and thould lend to J. H. 1470l. thus, viz. 470l. on the 14th Aug. 500l. on the 22d Aug. and 5001. on the 27th Aug. The 4th plea, (which was on the note for 3000/) after averring that J. H. was indebted to the Plaintiffs in 2500l. ftated the corrupt agreement to difcount thus; That the Plaintiffs should forbear and give day of payment of the 250c7. till the promiffory note fhould become due; and fhould lend to J. H. 450l. in this manner, viz. 2001. on the 26th Aug. and 2501. on the 28th Sept, and should forbear and give day of payment of the 450l. till the promiff ry note fhould become due; and that for forbearing and giving day of payment of the 250cl. and for the loan and forbearance of the 450l. the Plaintiffs fhould take 50%. when the promiffory note thould become due. The 5th plea ftated an agreement that the Plaintiffs fhould lend to J. H. 295ch in this manner, viz. 2700l. on the 26th Aug. and 250l. on the 28th Sept. and fhould forbear and give day of payment of the 295cl. c. The 6th plea, (which was on the note for 2300) after averring that 7. H. was indebted to the Plaintiffs in 1000l. ftated that it was corruptly agreed between J. H. and the Plaintiffs, that the Plaintiffs fhould lend to J. H. 2261l. 135. 4d. thus: That they should forbear and give day of payment of the 100c/. till the promiffory note should become due, and thould deliver to 7. H. a bill of exchange on Sir James Efdaile and Co. for 50cl. at thirty days fight, and another for 300l. at the fame number of days; and that the Plaintiffs fhould give credit to 7. H. for 461/. 135. 4d. and fhould forbear and give day of payment of the 22611. 135. 4d. till the note fhould become due, and for fuch loan and forbearance fhould take 381. 6s. 8d. when the promiffory note fhould become due. The 7th plea, after averring that J. H. was indebted to the Plaintiffs in Icool. ftated a corrupt agreement to discount thus: That the Plaintiffs fhould forbear and give day of payment of the 1000%. till the promiffory note fhould become due, and fhould lend to J. H. 1261. 138. 4d. in this manner, viz. 4617. 135. 4d. on the 24th Sept. 500l on the 27th 0.7. and 300l. on the fame day; and fhould forbear and give day of payment of the 22611. 135.4d. &.. Defendant 1797. Defendant however in his pleas made no mention of the note for 1500l. or either of those for 2000l. but only relied on the manner in which the three bills for 1800l. 3000l. and 2300l. had Sir B. HAMbeen discounted, as ufurious; which was as follows: The note for 1800l. was difcounted on the 14th of Auguft, thus: By a draft on Sir James Efdaile and Co. payable to Haviland or order, three days after fight, for By ditto, at feven days fight, for By cafh carried to the credit of Haviland's running account £500 O 300 METT ย. Sir W. YEA £1770 The remaining 30l. was taken as intereft on the note for the four months it had to run from the day on which it was dif counted. The note for 3000l. was difcounted on the 24th (a) of Auguft, The remaining 50l. was taken as intereft on the note for the four months it had to run from the day on which it was dif counted. (a) This note was dated the 25th, and discounted on the 24th, being one day too foon, by mistake. 1797. Sir B. HAM- Sir W. YEA. The note for 2300l. was difcounted on the 24th Sept. (a) thus: By a draft on Sir James Efdaile and Co. payable £1000 300 0 500 O 200 O 261 13 4 £2261 13 4 The remaining 381. 6s. 8d. was taken as intereft on the note for four months. When the above notes were brought to the Plaintiffs to be dif counted, the manner in which the money was to be advanced, and the refpective dates of the drafts on the houfe of Sir James Efdaile and Co. were directed by the perfons who brought them, and who (as it appeared from the evidence of the managing clerk in the Plaintiff's houfe) might, had they wished it, have had either cash or bills payable on demand. Nothing was charged by the Plaintiffs for commiffion, postage, stamps, &c. This caufe was tried before Eyre Ch. J. at the Guildhall Sittings after Trinity term 1797, when his Lordship directed the special jury, that the charge of ufury refted wholly on the Plaintiff's having made no rebate of intereft on the bills which had a long time to run; that they appeared to be in the nature of a remittance of the borrowers money to London, and that if the Plaintiffs had not taken more than a reasonable compenfation for their trouble, unlefs indeed the mode of payment had been made a term on which alone the bills would be discounted, it was not ufury; that as to the bills of a fhort date there appeared to him to be little doubt; that if the bills had borne a very long date, it would have been ftrong evidence of a device to clude the ftatute; but that the bills at thirty days feemed to be of a middle kind; and it was for them to draw the line. The jury without hefitation found a verdict for the Plaintiffs. But on its being fuggefted that Lord Kenyon in (a) This note having been dated the 17th, and not discounted till the 24th of the fame month, the whole discount ought 16 not to have been taken; but being admitted to be a mistake, that was not infifted upon. Matthews |