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1797.

Sir B. Ham

METT

Sir W. YEA.

have been, and non constat when it would be actually advanced in cash by the banker. The counsel for the Defendant fuppofed a case where part of the money was not to be paid till a month after the transaction. 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 borrower, though he did not mean to draw for it for some 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 transaction; and yet an interest is gained for the whole of that time, upon money not actually advanced. Suppose on difcounting a bill a banker gives his cheque made payable on demand; every one confiders it as cash, because it may be converted into cash 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 said for it. It is true that they may be discounted by a holder, and so the taker of them may be charged with double interest, but they may also circulate through the country up to the moment of their falling due as cash, and may pass to all effective purposes as such, and though I do not think it fit for me to say that fuch bills are always to be considered as cash, because an ill use might be made of it, yet I cannot say that the verdict in this view of it was improper in this case. My opinion being, that the real transaction was just the same as if the whole fum had been told down, and then a part had been returned for bills drawn to suit the borrower's convenience, for the purpose of remitting the money to London ; I repeat, that I cannot agree that in usury, more than in any other case, the whole transaction is not to be taken together: that it is not to be analyzed and reduced to all the parts of which it is composed, and to all the conclusions of fact, which fairly result from the whole of the evidence; and that the law does not arise from a fact fo confidered. Whether more than 5 per cent. be intentionally taken for the loan and forbearance of money, is the question of fact to be decided by the jury. If it be proved that a bill is discounted, partly in cash, and partly in bills upon London, payable of course at a future day; this is but evidence to prove the fact in question, 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 transaction, the excess according to circumstances might be usu

1797.

Sir B. HAM

METT

Sir W.Yra,

rious, or might arise from a part of the transaction collateral to themere loan; lawful in its nature, and extremely convenient tothe other party; neither unjust nor oppressive; contrary neither to the letter nor to the spirit of the statute. Nor do I think there is any danger in this doctrine. The transaction is always before a jury. It is for them to say 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 consideration, or not; if it be fo referable, we hould do the grofleft injustice, if instead of distributing the transaction into the parts of which it is composed, we were by a ftrict literal construction upon evidence to pronounce the contract to be what in substance it is not, a contract for mere loan and forbearance. On the whole of the case, I fee no sufficient ground to say 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 said that if the bills were drawn at a longer date than is usual in the course of business, it ought to be conftrued as a device. They were the best judges, and they thought there was no device: had they determined the other way, I thould not have quarrelled with their verdiet; but I think there is no sufficient reason for granting a new trial.

HEATH J. I am of the fame opinion with my Lord, and cannot therefore think this a case in which we should grant a new trial. This was a transaction which commenced in discount and loan, and terminated in remittance. The question then is, Whether these two things muft 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 submitted to the jury; since they have decided it. The subsequent tranfaction of remittance was no part of the antecedent contract; the bargain for the discount was complete, and then the banker asked the person who brought the bill, how he would have the money. The true question is, whether the terms of the remittance formed the confideration of the loan; for if they did, the tranfa&tion was ufurious. I agree to the general propofition of law as laid down by the Defendant's counsel, but think it a question for the decision of a jury. As to the case 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. Han

MUTT

Sir W.Yea.

the statute, and no jury could doubt of the intention. Those who advance money may impose their own terms on those who are in want of it; but those who come with money to purchase bills, not being distressed men, need never be imposed upon. In the west-country thirty days is the usual time for which the bills are made to run; and sometimes money is given for those bills, when there is more money to be paid in London than there are bills upon that place. Considering the discount and remittance as separate transactions, 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 statute law of this land, it is usury to take more than 5l. per cent. per annum. But where money is advanced under particular circumstances, a man may be warranted in taking more than 5l. per cent., if the furplus be taken for additional expence, risk, and trouble; generally speaking, where a party prefers taking bills instead of ready money, it would be right for the banker to say, “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 so much for my trouble and expences;” and on saying 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 alks, “How do you choose to take the money, in cash or in bills, and for what time?” The person who brought the bills, took part in cash and part in bills at different dates. It was left to the jury to consider 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 ftrid for the purpose of defeating a fair claim? For I cannot but consider this defence in the fame light as I should a proceeding on the other branch of the statute; and think the present transaction entitled to as favourable a construction as if it were the subject of a penal profecution.

Rule discharged.

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1797.

after it has been

Nov. 27th.
MILLIKEN v. Fox and Another.

2 Bof. & Pullo

77. Rule was moved for by Shepherd Serjt. calling on the The Court will Plaintiff

' to fhew cause why the entry of the judgment of fendant to strike nolle profequi as to the first count of the declaration in this cause out the entry of

a judgment of thould not be struck out, or why the Plaintiff should not pay the nolle profequi encosts of the count on which the nolle profequi was entered.

tered by the

Plaintiff, as to The declaration was for goods fold and delivered, with a one of the counto quantum meruit and the common money counts. In the first of his declaration count it was by mistake ftated, that the Defendant “ was in- demurred to. debted for fold and delivered,” leaving out the word “goods.” Nor will it in This count was deinurred to, and judgment recovered pleaded proceedings de

a quelto the others; on which the Plaintiff entered a nolle profequi as tiom on.com to the first count, and replied nul tiel record to the other pleas. respecting such a

count. Shepherd contended that the Plaintiff's object was to deprive the Defendant of his costs on the demurrer, and cited Cowper v. Tiffin, 3 T.R. 511. where the 8 Eliz. c. 2. 8.2. was relied on; he said there were other cases where it had been held that after a demurrer, the Plaintiff cannot enter a nolle profequi, Rofe & ur. v. Bowler, i H. Bl. 108. Drummond v. Durant. 4 T. R. 360.

Le Blanc Serjt. thewed cause in the first instance, 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 costs, they would be allowed on taxation after the trial of the cause, and that if the officer exercised his discretion improperly, then would be the season to apply to the Court.

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

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

(a) Vid. Goddard v. Smith, Saik. 455. After demurrer in law joined, if the Parker v. Sir T Lawrence and Nevil and Court doch give a day over, at that day the Word, Hob. 70 Slowley v, Eveley ib. 18r. Demandant or Plaintiff is demandable, and Sir 3.ba Sands and Parkfal, Broca's case, therefore may be nonfuit. Co. Litt. 139. b. 2 Leon, 177

1797.

Nov. 27th.

KEATE V. TEMPLE.

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On a motion for

A SSUMPSIT for goods fold and delivered, work and labour, a new trial by a Defendant in an

and common money counts. action againft Plea. Non affumpfit. him for goods delivered to the

This caufe was tried before Lawrence J. at Winchester summer use of a third aflizes 1797, when the principal facts in evidence were as follow: perfon or his undertaking to lec

The Plaintiff' was a tailor and flopseller at Portsmouth, and the the Plaintiff paid, Defendant the first lieutenant of His Majesty's fhip the Boyne. take into confi. When that ship came into port, the Defendant applied to a third deration not only person to recommend a flopseller who might supply the crew with the expresions used, but the new cloaths, saying, “He will run no risk; I will see him paid.” particular fitna The Plaintiff being accordingly recommended, the Defendant tion of the Defendant at the

called upon him, and used these words, “ I will fee you paid at time of his un

the pay-table; are you satisfied?” The Plaintiff answered, “ Perdertaking, and the amount of fectly fo.” The cloaths were delivered on the quarter deck of the sum for

the Boyne : flops are usually fold on the main deck: the Defen-
which he will
thereby be made dant produced samples to ascertain whether his directions had
liable. been followed: some of the men said, 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, such as are
usually 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 ship had been last ftationed. Soon after the
delivery, the Boyne was burnt, and the crew dispersed into dif-
ferent ships. On that occasion, the Plaintiff having expressed
some apprehenfions for himself, was told by the Defendant
“ Captain Grey (the Captain of the Boyne) and I will see you
paid; you need not make yourself uneasy.” After this the com-
missioner 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 fome money out of the hat of the
first 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 asked the commiffioner to stop the pay of
the crew, who answered that it could not be done.

The

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