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1797.

Sir B. HAM

METT
V.

Sir W. YEA.

have been, and non conftat when it would be actually advanced
in cash by the banker. The counfel for the Defendant fuppofed
a cafe where part of the money was not to be paid till a month
after the tranfaction. I agree that would be taking intereft for
money not in any fenfe advanced, and would amount to ufury.
But if part of the money were carried to the account of the bor-
rower, though he did not mean to draw for it for fome time, and
did not actually draw for it till the whole time on the discounted
bill was expired, no man would doubt of the fairness or lawfulness
of the tranfaction; and yet an intereft is gained for the whole of
that time, upon money not actually advanced. Suppofe on dif-
counting a bill a banker gives his cheque made payable on de-
mand; every one confiders it as cafh, because it may be converted
into cafh directly: yet it may happen that the money may not
be demanded for any given length of time. I am inclined to
think that the jury confidered these thirty days bills as cash; and
there is a great deal to be faid for it. It is true that they may be
discounted by a holder, and fo the taker of them may be charged
with double intereft, but they may alfo circulate through the
country up to the moment of their falling due as cafh, and may
pafs to all effective purposes as fuch, and though I do not think
it fit for me to say that fuch bills are always to be confidered as
cafh, because an ill ufe might be made of it, yet I cannot say that
the verdict in this view of it was improper in this cafe. My
opinion being, that the real tranfaction was juft the fame as if
the whole fum had been told down, and then a part had been
returned for bills drawn to fuit the borrower's convenience, for the
purpose of remitting the money to London; I repeat, that I can-
not agree that in ufury, more than in any other cafe, the whole
tranfaction is not to be taken together: that it is not to be ana-
lyzed and reduced to all the parts of which it is compofed, and to
all the conclufions of fact, which fairly refult from the whole of the
evidence; and that the law does not arife from a fact fo con-
fidered. Whether more than 5 per cent. be intentionally taken for
the loan and forbearance of money, is the queftion of fact to be de-
cided by the jury. If it be proved that a bill is discounted, partly
in cafh, and partly in bills upon London, payable of course at a
future day; this is but evidence to prove the fact in queftion, and
may or may not prove that fact according to the explanations
which may be given. If more than 5 per cent. was gained by the
tranfaction, the excefs according to circumftances might be ufu-

rious, or might arife from a part of the tranfaction collateral to the mere loan; lawful in its nature, and extremely convenient to the other party; neither unjuft nor oppreffive; contrary neither to the letter nor to the spirit of the ftatute. Nor do I think there is any danger in this doctrine. The tranfaction is always before a jury. It is for them to fay whether it is a device, or a fair agreement on good confideration; whether if there be any overplus, after the 5 per cent. taken for discount, it is properly referable to fome lawful collateral confideration, or not; if it be fo referable, we fhould do the groffeft injuftice, if inftead of diftributing the tranfaction into the parts of which it is compofed, we were by a ftrict literal conftruction upon evidence to pronounce the contract to be what in fubftance it is not, a contract for mere loan and forbearance. On the whole of the cafe, I fee no fufficient ground to fay that the verdict is wrong. I thought the tranfaction fo far doubtful at the trial, that I wished the jury to confider whether the giving these bills on London was not a mere cover for an ufurious contract. I faid that if the bills were drawn at a longer date than is usual in the course of bufinefs, it ought to be conftrued as a device. They were the beft judges, and they thought there was no device: had they determined the other way, I fhould not have quarrelled with their verdict; but I think there is no fufficient reafon for granting a new trial.

HEATH J. I am of the fame opinion with my Lord, and cannot therefore think this a cafe in which we should grant a new trial. This was a tranfaction which commenced in discount and loan, and terminated in remittance. The question then is, Whether these two things must be consolidated, or whether they may not be divided? Now I think upon the evidence reported, that that question cannot be again raised here, if it has once been properly fubmitted to the jury; fince they have decided it. The fubfequent tranfaction of remittance was no part of the antecedent contract; the bargain for the difcount was complete, and then the banker asked the person who brought the bill, how he would have the money. The true queftion is, whether the terms of the remittance formed the confideration of the loan; for if they did, the tranfaction was ufurious. I agree to the general propofition of law as laid down by the Defendant's counsel, but think it a queftion for the decifion of a jury. As to the cafe put at the Bar, of an agreement to leave a certain fum in the banker's hands for a month, that would be a clear device to elude

the

1797.

Sir B. HAM-
METT

V.

Sir W.YEA.

1797.

Sir B. HAM

METT v.

Sir W. YEA.

the ftatute, and no jury could doubt of the intention. Thofe who advance money may impofe their own terms on those who are in want of it; but thofe who come with money to purchase bills, not being diftreffed men, need never be impofed upon. In the weft-country thirty days is the usual time for which the bills are made to run; and fometimes money is given for those bills, when there is more money to be paid in London than there are bills upon that place. Confidering the discount and remittance as feparate tranfactions, and the jury having found a verdict agreeable to the evidence, I think we cannot meddle with it.

ROOKE J. I agree in opinion with my Lord and my Brother Heath. By the ftatute law of this land, it is ufury to take more than 5l. per cent. per annum. But where money is advanced under particular circumftances, a man may be warranted in taking more than 51. per cent., if the furplus be taken for additional expence, risk, and trouble; generally speaking, where a party prefers taking bills inftead of ready money, it would be right for the banker to fay, "I will make a rebate for the time the bills have to run." But if he does fo, he has a right to add, "I must have fo much for my trouble and expences;" and on faying this, a new contract would commence, and it would be for the jury to determine whether a fair fum was taken or not. Here bills are brought to the banker to be discounted, and he afks, "How do you choose to take the money, in cash or in bills, and for what time?" The perfon who brought the bills, took part in cafh and part in bills at different dates. left to the jury to confider whether this was not colourable, and more in fact taken for the commiffion than was proper; and the jury found that nothing more was taken than was reasonable. On a penal statute shall we be fo ftrict for the purpose of defeating a fair claim? For I cannot but confider this defence in the fame light as I fhould a proceeding on the other branch of the ftatute; and think the present transaction entitled to as favourable a construction as if it were the fubject of a penal profecution.

It was

Rule discharged.

1797.

A

MILLIKEN V. Fox and Another.

RULE was moved for by Shepherd Serjt. calling on the Plaintiff to fhew caufe why the entry of the judgment of nolle profequi as to the first count of the declaration in this caufe fhould not be ftruck out, or why the Plaintiff should not pay the cofts of the count on which the nolle profequi was entered. The declaration was for goods fold and delivered, with a quantum meruit and the common money counts. In the firft count it was by miftake ftated, that the Defendant "was indebted for fold and delivered,” leaving out the word "goods." This count was demurred to, and judgment recovered pleaded to the others; on which the Plaintiff entered a nolle profequi as to the first count, and replied nul tiel record to the other pleas. Shepherd contended that the Plaintiff's object was to deprive the Defendant of his cofts on the demurrer, and cited Cowper v. Tiffin, 3 T.R. 511. where the 8 Eliz. c. 2. f. 2. was relied on; he faid there were other cafes where it had been held that after a demurrer, the Plaintiff cannot enter a nolle profequi, Rofe & ur. v. Bowler, 1 H. Bl. 108. Drummond v. Durant. 4 T. R. 360.

Le Blanc Serjt. fhewed cause in the firft inftance, and endeavoured to prove that the object of the application made fo late in the term was only to carry the cause over till next term. He urged that if the Defendant was entitled to any cofts, they would be allowed on taxation after the trial of the caufe, and that if the officer exercifed his discretion improperly, then would be the feafon to apply to the Court.

EYRE Ch. J. The fingle queftion is, Whether the Plaintiff has a right to enter a nolle profequi in this ftage of the proceeding? Relictá verificatione non vult ulterius profequi is to be found in every book of entries. The right to cofts is a matter for future confideration.

Shepherd Serjt. took nothing by his motion. (a)

(a) Vid. Goddard v. Smith, Saik. 455. Parker v. Sir T Lawrence and Nevil and Wand, Hub. 70 Slowley v. Eveley ib. 180, Sir Jaba Sands and Parkfal, Broca's cafe, 2 Leon, 177.

After demurrer in law joined, if the
Court doth give a day over, at that day the
Demandant or Plaintiff is demandable, and
therefore may be nonfuit. Co.Litt. 139. b.

Nov. 27th.

2 Bof. Pull.

77.

The Court will not allow a Deout the entry of nolle profequi en

fendant to ftrike

a judgment of

tered by the Plaintiff, as to one of the counts of his declaration after it has been

demurred to. that ftage of the proceedings de

Nor will it in

termine a queftion of cofts

refpecting such a

count.

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On a motion for

KEATE v. TEMPLE.

a new trial by aSSUMPSIT for goods fold and delivered, work and labour,

Defendant in an action againft him for goods delivered to the ufe of a third perfon or his undertaking to fee

the Plaintiff

paid,

the Court will

take into confideration not only the expreffions ufed, but the

particular fitna

tion of the Defendant at the time of his undertaking, and the amount of the fum for which he will

liable.

and common money counts.

Plea.

Non affumpfit.

This caufe was tried before Lawrence J. at Winchester fummer affizes 1797, when the principal facts in evidence were as follow: The Plaintiff was a tailor and flopfeller at Portsmouth, and the Defendant the firft lieutenant of His Majefty's fhip the Boyne. When that ship came into port, the Defendant applied to a third perfon to recommend a flopfeller who might fupply the crew with new cloaths, faying, "He will run no rifk; I will fee him paid." The Plaintiff being accordingly recommended, the Defendant called upon him, and used these words, "I will see you paid at the pay-table; are you fatisfied?" The Plaintiff answered, "Perfectly fo." The cloaths were delivered on the quarter deck of the Boyne: flops are ufually fold on the main deck: the Defenthereby be made dant produced famples to afcertain whether his directions had been followed: fome of the men faid, that they were not in want of any cloaths, but were told by the Defendant that if they did not take them, he would punish them; and others, who ftated that they were only in want of part of a fuit, were obliged to take a whole one, with anchor buttons to the jacket, fuch as are ufually worn by petty officers only. The cloathing of the crew in general was light and adapted to the climate of the West Indies, where the fhip had been laft ftationed. Soon after the delivery, the Boyne was burnt, and the crew difperfed into different fhips. On that occafion, the Plaintiff having expreffed fome apprehenfions for himfelf, was told by the Defendant "Captain Grey (the Captain of the Boyne) and I will fee you paid; you need not make yourself uneafy." After this the commiffioner came on board the Commerce de Marseilles in order to pay the crew of the Boyne; at which time the Defendant ftood at the pay table, and having taken some money out of the hat of the firft man who was paid, gave it to the Plaintiff; the next man refused to part with his pay, and was immediately put in irons. The Defendant then afked the commiffioner to ftop the pay of the crew, who answered that it could not be done.

The

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