usury, and afterwards A. give a bond to C. for the amount, the bond is good (a).

The general rule, however, is, that if parties enter into a usurious agreement, any remote security for any part of the illegal interest, or to enforce the tainted contract, with a distinct and valid debt, cannot be enforced; there being no express agreement to expunge the original bad part of the debt, or forego the excess of interest; although such new security be founded on a new settlement of accounts (b). And a new promise to pay the principal originally lent on a usurious agreement, is not binding, unless all payments, beyond legal interest, are repaid or deducted (c).

A. being indebted to the plaintiff in 907. and 201. upon legal consideration, and in a larger sum on usurious loans, in consideration of the plaintiff advancing him 150l. more on legal interest, procured him the defendant's acceptances for 1007., 1007., and 50l., for securing the whole balance due from A. to the plaintiff. It was held, that these bills were tainted by the usurious transactions, and could not be enforced against the defendant, the acceptor, even to the extent of the debts untainted by usury (d).

Bona fide holder of usurious bill.-By the statute 58 G. 3, c. 93 (e), "no bill of exchange or promissory note shall, though it may have been given for a usurious consideration, or upon a usurious contract, be void in the hands of an indorsee for valuable consideration, unless such indorsee had, at the time of discounting or paying such consideration for the same, actual notice that such bill or note had been originally tainted with usury." It has been held that the holder of a bill suing thereon, must prove that he holds it for value, after the defendant has shown that there was usury between prior parties to the instrument; although no notice to dispute the consideration has been given (ƒ).

Separate instruments constitute one agreement, when.—If a contract for the loan of money be void on the ground of usury, a

(a) Cuthbert v. Haley, 8 T. R. 390; George v. Stanley, 4 Taunt. 683. See Chapman v. Black, 2 B. & Al. 588.

(b) Tate v. Wellings, 3 T. R. 531 ; Preston v. Jackson, 2 Stark. R. 237; Chapman v. Black, 2 B. & Al. 588.

(c) Wickes v. Gogerley, Ry. & M. 123;

1 C. & P. 396, S. C.

(d) Harrison v. Hannel, 5 Taunt. 780.

(e) See the observations of Gibbs, C. J., Jones v. Davison, Holt, R. 257, 258.

(f) Wyatt v. Campbell, Moo. & M. 80.

separate security for the principal or interest only, cannot be enforced (g). It is not material that the usurious contract is to be executed, and is evidenced by means of two separate instruments, instead of being comprised in one (h).

Charge for bonâ fide expenses, beyond 51. per cent.-There are instances in which, though more than 5l. per cent. be taken on the loan of money, the statute does not apply, the excess being bona fide contracted for to cover reasonable expenses incident to the transaction (i).

Thus, a banker, bill broker, or other person, discounting a bill (k), or an agent procuring the acceptance and payment of bills (1), may lawfully charge, and take, a reasonable commission or remuneration, besides legal interest, for his bonâ fide and necessary expenses and trouble: and a conveyance to bankers of timber growing, in trust to sell the same, and to pay themselves a debt due to them, with interest, and to pay over the residue, after all expenses, &c., and to retain 2007. for their trouble, is not, on the face of it, usurious (m). But if a loan be mixed up with the transaction, and the compensation demanded be unreasonable, it is a question for the jury, whether the commission be a shift, to obtain more than legal interest for the forbearance (n).

Goods taken on discount of bill.-When goods are taken in part of money agreed to be advanced as a loan, the presumption of law appears to be, that no usury was contemplated; and, consequently, the lender is not to be called upon to show the real value of the goods. But if it appear that the borrower was compelled by the lender to take goods instead of cash, as part of the loan, a suspicion arises that usurious interest was agreed for, and the lender must obviate this suspicion, by showing that the goods were fairly and substantially worth the sum charged (0).

Lease or sale of realty, &c.-A beneficial lease, obtained under the influence of loans of money made, or expected to be made,

(g) 2 Hawk. bk. 1, c. 82, s. 40; Fountain v. Grymes, Cro. Jac. 252, 508; Roberts v. Tremoile, 2 Roll. R. 48; 2 Lev. 7, 8.

(h) White v. Wright, 3 B. & C. 273; 5 D. & R. 110, S. C.

(i) Exp. Goss, 2 D. & E. Chitty's R.

240.

(k) Hammet v. Yea, 1 B. & P. 144; Exp. Jones, 17 Ves. 332; Marsh v.

Martindale, 3 B. & P. 158; Jones v. Davison, Holt, N. P. R. 263; Masterman v. Courie, 3 Camp. 492; Solarte v. Melville, 7 B. & C. 430.

(1) Baynes v. Fry, 15 Ves. 120. (m) Palmer v. Baker, 1 M. & Sel. 56. (n) Masterman v. Cowrie, 3 Camp. 488; Lee v. Cass, 1 Taunt. 511.

(0) Davis v. Hardacre, 2 Camp. 375, 553; Pratt v. Willey, 1 Esp. 40.

by the lessee to the lessor, a distressed man, has been considered by Lord Chancellor Reddesdale a fraudulent evasion of the Statutes of Usury, and an undue advantage taken of the lessor, and therefore void (p). And an agreement, that upon the advance of money by A. to B., A. shall assign to B. the lease of premises of greater value, with a power of redemption on repayment of the money, and that in the meantime B. shall grant A. an under-lease of the premises, at a greater rent than the legal interest of the money, A. insuring the premises, and paying the ground rent and taxes, is usurious; the assignment being intended as a security for the loan, and not as a purchase of the lease (q). But if the transaction amount, bonâ fide, to the sale of an estate, &c., it is not usurious to provide in the agreement for the sale that the purchase money shall be paid by instalments, at certain days, with interest, calculated at 6l. per cent.; and promissory notes for these sums, compounded of the instalments, and that which was called interest, but was in substance part of the price, are valid (1). And an agreement to pay 121. per cent. on the amount of the purchase money of a vessel, was held not to be usurious, though there was a covenant to keep the vessel insured (s). And a conveyance of premises, with an agreement to re-convey at a certain time, at an advanced price, is not usury, unless it be meant as a cover for a loan of money (t).

A contract for interest upon interest, or compound interest, has been already considered (u).

If the contract and loan be made abroad, and be not usurious in the country in which they are made, neither shall they be deemed so in this kingdom (x).

Offence of usury, when complete.-In order to render the offence of usury complete, so as to subject the lender to the penalty, there must be an actual receipt of the usurious interest (y). Although

the penalty of the statute be not incurred until the usurious interest be actually received, the contract may be void without such receipt; and on the other hand, although the contract be legal, the penalty will be incurred by the taking of usurious interest upon a subsequent usurious bargain (2). Where usurious interest is reserved and made payable at intervals, it seems that the penalty is incurred complete upon the first receipt of such interest (a).

A plea of usury must show specially the terms of the usurious contract, a general plea of usury being bad on special demurrer (b). And a variance between the averment in the plea and the evidence, with respect to the terms of the usurious contract, as the sum lent or forborne, or the time of forbearance, &c., is material (c).

If in a declaration upon a specialty the terms of the instrument be set out in the declaration, and upon the face thereof it would appear that more than 5l. per cent. interest had been reserved upon the loan of money, that is, the stipulation as set forth import usury, still the defendant cannot demur, but must plead that it was usuriously agreed, &c. (d).

When a contract, or instrument, is primâ facie valid, it is not the province of the court to decide that it was a shift for usury; and, on a suspicion arising, it becomes a matter of fact to be decided by a jury, whether or not the transaction was a loan, or forbearance of money, on usurious terms (e).

3rdly. GAMING (ƒ), AND HORSE-RACING.

Gaming. It is enacted by the statute 16 Car. 2, c. 7, s. 3, that "if any person shall play at any pastime or game, other than

(2) Fisher v. Beasley, 1 Doug. 237; Floyerv. Edwards, Cowp. 114; 1 Wms. Saund. 295 (); Doe d. Metcalf v. Brown, Holt, N. P. R. 295.

(a) Wood v. Grimwood, 10 B. & C. 679.

(b) Hill v. Montagu, 2 M. & Selw. 377.

(c) 1 Saund. 295, note. See Tate v. Wellings, 3 T. R. 538; Lee v. Cass, 1 Taunt. 511. Forbearance, from what day to be stated, where check received in payment; Brooke v. Middleton, 1 Camp. 445; Borrodaile v. Middleton, 2 id., 53. Time of forbearance material, though laid under a videlicet;

Partridge v. Coates, Ryan & M. 153. Form of Pleas, &c. 3 Chitty, Pl. 5 ed. 909 a, 966.

(d) See 1 Saund. 295 a; Enderby v. Gilpin, 5 Moore, 593; Dande v. Currer, 1 Sid. 285.

(e) Tate v. Wellings, 3 T. R. 535; Hammett v. Yea, 1 B. & Pul. 151; Maddock v. Rumball, 8 East, 307; Enderby v. Gilpin, 5 Moore, 571, 594; Tregoning v. Attenborough, 4 M. & P. 722; 7 Bing. 97, S. C.

(f) See Disney on Gaming, and Bac. Ab. 1, Gaming. As to wagers, see ante, 394. The French law" does not allow an action for a debt at play;

with and for ready money, or shall bet on the sides of such as play thereat, and shall lose any money or thing so played for, exceeding the sum of 100l., at any one time or meeting (g), upon ticket or credit, or otherwise, and shall not pay down the same at the time of the loss, the party so losing shall not be bound to pay; and the contract, or any security for the same, shall be void."

The statute 9 Anne, c. 14, s. 1, provides, "that all notes, bills, bonds, judgments, mortgages, or other securities, or conveyances, given or entered into, for any money, or other valuable thing, won by gaming, or playing at cards, dice tables, tennis, bowls, or other game or games whatsoever, or by betting on the sides of such as do game at any of the said games, or for reimbursing or repaying any money knowingly lent for such gaming or betting, or lent at the time or place of such play, to any person so gaming or betting, or that shall, during such play, so play or bet, shall be void."

The second section of the statute declares, "that any person who shall, at a sitting (h), lose the sum or value of 10l. by playing or betting at cards, dice, tables, or other games, and shall pay or deliver the sum or goods lost, shall be at liberty, within three months, to recover the same from the winner, with costs of suit, in an action of debt, founded on and given by the act (i); and that if the loser do not sue within three months, any other person (k) may, by such action, recover from the winner the money or thing lost, and treble the value thereof, with costs of suit; and the statute gives one moiety to the informer, and the other moiety to the poor of the parish where the offence is committed."

It seems that at common law, gaming was lawful (1); although it is an indictable offence, independently of the statutes, to keep a common gaming house (m). Even since the statutes an action lies to recover less than the sum of 107. fairly won at play, as at whist

but games proper in the exercise of feats of arms, foot races, horse or chariot races, tennis and other sports of the same nature, which require address and agility of body, are excepted -subject to the power of the court to reject the demand when the sum appears to be excessive."-Code Civil, Bk. 3, Tit. 3, Ch. 1, Art. 1965, 1966.

(9) If company never part, though dinner intervene, the loss is considered to have been at one sitting; Bows v. Booth, 2 Bla. 1296.

(h) Supra, note (g).

(i) This enactment is to be considered remedial; Turner v. Warren, 2 Stra. 1079; Brandon v. Pate, 2 II. Bla. 308.

(k) Common informer cannot file a bill in equity to discover what was won, &c.; Orme v. Crockford, M'Clel.

185.

(1) Sherbon v. Colebach, 2 Ventr.

175.

(m) Rex v. Rogier, 2 D. & R. 431; 1 B. & C. 272, S. C.