1801. Sparkes v. Simpson. Feb. 12th. In this case a rule to plead in four days was entered on the 24th Oyer may at any time be fore the expira be prayed of January, and a plea demanded thereon on the 30th of the same month, at a quarter before four in the afternoon; on the 31st of January, at two o'clock in the afternoon, a demand in writing of of the bond on which the declaration was founded, was served on the Plaintiff's attorney, who, without granting oyer, signed hours af judgment on the same day. A rule nisi for setting aside this judgment having been obtained, tion of 24 ter the demand of a plea, though the rule to plead be out. oyer Best, Serjt. shewed cause, and urged, that where oyer is not demanded until the time for pleading is expired, the Plaintiff is entitled to treat the demand as a mere nullity, and referred to 1 Sellon Pr. 263. ed. 2. and the authorities there cited. He observed, * (380) that though the rule be otherwise where further time to plead is obtained from a Judge, yet in this case, as no time had been obtained, the time for pleading expired before the demand of oyer was made. Lens, Serjt. contrà, admitted, that oyer must be demanded before the time for pleading is out, but insisted that notwithstanding the expiration of the rule, the Defendant has twenty-four hours after the demand of the plea; and that as oyer had been demanded in this case within twenty-four hours after the demand of a plea, the Plaintiff was not entitled to sign judgment without granting oyer. The Court were of this opinion, and relied on the case of The Duke of Leeds v. Vevers, Barnes, 268. ed. 3. Rule absolute. During the vacation, the Great Seal, was, on the resignation of Lord LOUGHBOROUGH, delivered to Lord ELDON, Lord Chief Justice of the Court of Common Pleas, who was appointed Lord High Chancellor of Great Britain. His Lordship, however, continued to hold the situation of Lord Chief Justice of the Court of Common Pleas. Sir JOHN MITFORD, Knt. His Majesty's Attorney General, resigned his office at the latter end of Hilary Term, and was elected Speaker of the House of Commons. EDWARD LAW, Esq. one of His Majesty's Counsel learned in the law, was appointed Attorney General, and was knighted. Sir WILLIAM GRANT, Knt. His Majesty's Solicitor General, resigned his Office, and was succeeded by The Honourable SPENCER PERCEVAL, one of His Majesty's Counsel learned in the law. CASES ARGUED AND DETERMINED IN EASTER TERM, IN THE FORTY-FIRST YEAR OF THE REIGN OF GEORGE III. IN THE COURT OF COMMON PLEAS. DEBT Scurry qui tam v. Freeman. on the statute of Usury. 1801. April 23d. A. lent B. 500, and at the tin.e of that the more than The cause was tried before CHAMBRE, J. at the Guildhall Sittings after Hilary Term, when the facts in evidence were as follow-In September 1794, the Defendant lent the sum of 500l. to the loan one Robert Hooley upon his bond, and an assignment by way of it was amortgage of certain leasehold premises. At the time of the loan greed, it was understood, that Hooley was to give something more than latter legal interest as a compensation, but no particular sum was agreed should upon. After the securities were executed and the money advan- give some ced, the parties went together to another place where Hooley offer- thing ed the Defendant 50%. who directed him to give it to his son then present; which was accordingly done. Interest at the rate of 51. *per cent. was paid on 500%. until the 19th of January 1797, when the securities were changed and new deeds given to secure the 5001. and 5 per cent. interest, which was paid from time to time up to the 26th December 1799. On the last mentioned day, 25. was paid to the Defendant as one year's interest on 500% by a draft on a banker, which draft was received as cash, and a receipt accordingly given for it by the Defendant at a house in Bedford Rowe excution legal interest as *(382) a compen sation, but no particular sum was specified. After the of the deed, B. gave A. 501. and paid interest at the rate of 51 per cent, on 11 » 5001 for five years; at the end of which time an action was brought against . for usury.-Held, that the action was not barred by lapse of time, for that the loan was substantially for no inore than 4507. and consequently the interest at the rate of 51. per cent. on the 5007. Received within the last year was usurious. If a draft be given for usurious interest, and a receipt taken for it in the county of A, and the draft be afterwards exchanged for money in the county of B.; the usury is committed in the county of B. and the venue must be laid there. 1801. υ. FREE MAN. in the county of Middlesex, but which was afterwards exchanged for money by him with a third person in West-Smithfield London. SCURRY The venue was laid in London. At the trial it was contended, on behalf of the Defendant, 1st, That as the crime of usury, so as to subject the party committing it to penalties, is complete on the taking of the usurious interest, the crime of usury was in this case complete on the receipt of the 50%. given by way of compensation for the loan in September 1794 (a) and consequently the time was long since expired within which this action should have been brought; for that since that time nothing more than 51. per cent. had been received on the 5001; 2dly, That the venue was improperly laid in London, for supposing the receipt of the last 251. as one year's interest to be deemed usurious, still it was received in Bedford Rowe which is in Middlesex. The Jury, under the direction of the learned Judge, found a verdict for the Plaintiff. Best, Serjt. now moved to have a nonsuit entered, relying on the objections taken at the trial, and in support of the first referred to Lloyd q. t. v. Williams, 3 Wils. 250. and Fisher q. t. v. Beasley, Dougl. 235. But The Court (consisting of HEATH, ROOKE, and CHAMBRE, Judges) were very clearly of opinion, that the receipt of 251. as one year's interest was usurious, inasmuch as the loan could only be deemed a loan of 450l. since the Defendant had taken back 50%. out of the 500%. ;(1) and also that the draft on the banker was merely a promise to pay, whereas the actual receipt of the money constituting the usury took place in Smithfield, which was in London.(b) Best took nothing by his motion. (a) On a contract to forbear 6001. for a year, reserving interest at the rate of 51 per cent. if a premium be taken at the time of the loan, the crime of usury is complete the instant any part of the growing interest is received by the lender. Wade q. t. v. Wilson, 1 East. 195. (1) Vide Lee q. t. v. Cass, 1 Taun. 516. (b) If any usurious contract be entered into by a deed executed in London appointing A the lender to be receiver of B the borrower's rents in Middlesex, with a pretended salary, and A. receive the rents in Middlesex, but settle for the balance with B. in London, the venue in an action on the statute is well laid in London. Scott q. t. v. Brest, 2 Term Rep. 238. Indeed, it seems that it might be laid either in London or Middlesex, per ASHHURST, I b. 240. * (383) *Castleman, Executor of Castleman v. Ray, Executor of April 24th. Ray. INDEBITATUS ASSUMPSIT for money had and received, An un- and on an account stated. The Defendant pleaded a tender as to stamped part, and a set-off as to the rest. draft drawn on "A. B. bricklayer" is not wihin the exception of 23 Ceo. 3. c. 49. s. 4. in favour of drafts drawn on bankers acting as bankers within ten miles of the place where the draft is drawn. If at the bottom of such a draft there be an acknowledgment of the drawee that a third per Son paid it for him, that acknowledgment cannot be received in evidence. At the trial of this cause at the Guildhall Sittings after last Hilary Term, before CHAMBRE, J., the Defendant, in order to support his plea of set-off, tendered in evidence an unstamped paper, of which the following is a copy "Mr. Castleman, Please to pay the bearer 30%. 8s.; his receipt will be your discharge, from Yours, &c. Standgate, Sep. 3, 1790. THO. MOSELEY. Mr. Castleman, Bricklayer, Paid by Richd. Ray for Charles Castleman." The words" Paid by Richd. Ray" were in the hand-writing of the Defendant's testator, and the words "for Charles Castleman" in the hand-writing of the Plaintiff's testator. It was objected, that this paper not being stamped could not be received in evidence, being a draft or order within the meaning of 23 Geo. 3. c. 49. s. 2. (which act was in force at the time the draft was drawn) and not falling within the exception in s. 4. of that act, which exempts every draft or order for the payment of money on demand upon any banker, or person or persons acting as a banker, residing or transacting the business of a banker within ten miles of the place of abode of the person or persons drawing such draft or order, from being stamped. The learned Judge being of that opinion, refused to receive the paper in evidence, and a verdict was found for the Plaintiff. Runnington, Serjt. now moved for a rule calling on the Plaintiff to shew cause why a new trial should not be had, contending 1st, That Castleman, upon whom the draft was drawn, though not a banker by business, might be considered as a banker within the meaning of the act, having been treated by the drawer as such; 2dly, Admitting that the paper could not be received in evidence *as a draft, yet that as Castleman had acknowledged at the bot- * (384) tom of it, under his own hand, that Ray had paid the money mentioned in the paper for his use, the Defendant ought not to be precluded from giving that acknowledgment in evidence merely because it stood on the same paper as the draft; that the acknowledgment, if written on a separate piece of paper, would not have required a stamp, since it was not in the nature of a receipt. Fisher v. Leslie, 'Esp. N. P. Cas. 426. But The Court (consisting of HEATH, ROOKE, and CHAMBRE, Judges) were of opinion, that the evidence was properly rejected, for that the acknowledgment of Castleman could not be made available without giving effect to the draft. Runnington took nothing by his motion. 1801. April 24th. THIS Aid-pray Onslow, Demandant v. Smith, Tenant. HIS was a writ of right brought to recover a piece of garden er is a di- ground and curtilage, with the appurtenances in the borough of latory Horsham. plea with in 4. Ann. c. 16. and must be verified by affidavit. If the ten ant in a writ of The demandant counted in Easter Term 1800, and laid the right and seisin within sixty years by taking the esplees in his father Denzill Onslow from whom the right descended to himself. The tenant obtained three general imparlances, 1st, To the Morrow of the Holy Trinity; 2dly, To the Morrow of All Souls; and 3dly, Till Eight days of Saint Hilary. "At which day the demandant cometh here into Court by his said attorney, and the tenant by his attorney aforesaid, and the said tenant says, that long beright pray aid after a fore the day of suing out the original writ of the said demandant, the Right Honourable Charles Lord Viscount Irwin, of the Kingdom of Scotland, was seised of the tenement aforesaid, with the appurtenances in his demesne as of fee, and being so seised, on, &c. made his last will and testament; (Here the tenant set out the limitations in the above will, by which a title was derived to Lady Irwin for her life, remainder to Lord Irwin's daughter Isabella will give Ann Lady Beauchamp for her life, remainder to the second, third, judgment and other sons of Lady Beauchamp in tail male, remainder to his thereupon daughter Frances for her life, remainder to her first and other sons in tail male, remainder to his daughter Elizabeth for her life, remainder to her first and other sons in tail male, with several other remainders *over; the tenant then averred the death of Lord general imparlance, it is good cause of demur rer and the Court that the tenant an swer alone. *(385) Irwin, whereby Lady Irwin became seised for her life, and that she by lease and release of the 28th and 29th of May 1790, conveyed her life interest to the tenant; and that Lady Beauchamp had no second son, and Frances no son.) And the said tenant further says, that the said Elizabeth afterwards, and before the suing out of the said original writ of the said demandant, at the borough of Horsham aforesaid, intermarried with one Hugo Meynell, Esquire, and the said Hugo Meynell and Elizabeth have issue between them lawfully begotten one Hugo Meynell their first son, who is now living, to whom and to the heirs male of his body issuing, the tenement aforesaid, with the appurtenances, after the death of the said Viscountess, and after the respective deaths of the said Isabella Ann, Frances, and Elizabeth, and in default of such issue of their respective bodies as aforesaid, doth belong, and without which said Hugo Meynell the son, the said tenant, cannot draw into plea the aforesaid tenement with the appurtenances, nor answer the said demandant thereof, wherefore he prays aid of the said Hugo Meynell the son." "And the said demandant, protesting that the said Charles Lord Viscount Irwin of the kingdom of Scotland was not so seised of the tenement aforesaid with the appurtenances as the said tenant hath above supposed, says, that the matters alleged by the said tenant in manner and form as the same are above stated and set forth, are not sufficient in law for the said tenant to have aid of the said Hugo Meynell the son, wherefore he prays judgment, and that the said tenant may answer the said demandant in the plea aforesaid without the aid of the said Hugo Meynell. And for causes of |