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"been lent and borrowed thereupon, with interest "for the same; so as no premium or other con"sideration whatsoever be paid to or received by "the person or persons lending such money, for "or in consideration of such loan, more than legal "interest (p)"
The words "public or joint-stock" relate to the British public funds; and a trafficking in Colombian bonds is not within the statute (q). But it has been held that omnium is stock(r). The tickets of a public lottery are not securities within the act (s).
Where the plaintiff empowered the defendant to sell out £3000, 4 per cent, stock, for his own benefit, in consideration of which defendant undertook to transfer at the next opening the same amount of stock in the plaintiff's name; this was held not to be within the prohibition of the eighth section of the statute, but within the exception of the eleventh (t). It is neither usurious, nor contrary to the stock-jobbing act, to take the full
(p) 7 Geo. II. c. 8, s. 11.
(q) Henderson v. Bise, 3 Stark. N. P. C. 158, coram Abbott, C.J.
(r) Brown v. Turner, 2 Esp. 631; S. C. 7 T. R. 630; Olivierson v. Coles, 1 Stark. N. P. C. 496.
(s) Mortimer v. Salkeld, 4 Campb. 42. (But the sale of lottery tickets would now be illegal, see 4 & 5 Will. IV. c. 37. See Deey v. Shee, 2 T. R. 617.)
(0 Saunders v. Kentish, 8 T. R. 162. And see Maddock v. Rumball, 8 East, 804.
interest which the stock itself would have produced, though the interest exceed five per cent., unless the transaction be colourable, and a mere device to obtain an usurious rate of interest (u).
Saieofsmaii The tippling Act.—By the tippling Act(j') it is •piniuous enacted, that" no person shall maintain any action
"for any debt or demand for any spirituous liquors, "unless such debt has been bondjide contracted at "one time to the amount of 20$. or upwards; nor "shall any item in any account be allowed where "the liquors delivered at one time and mentioned "in such item shall not amount to 20*. at the "least, without fraud; and where no part of the "liquors sold or delivered shall have been returned "or agreed to be returned directly or indirectly."
It was held by Lord Kenyon, C. J., that the statute does not apply where the liquor was sold to an eating-house keeper for the purpose of being sold again by the latter to his customers(?/). But this case seems to be overruled, and the statute is equally applicable whether .the sale was to the consumer himself or not(«).
It is immaterial whether the spirits are sold alone or mixed with water (a). Where the charge
(«) Tate v. Wettings, 3 T. R. 531.
(.*) 24 Geo. II. c. 40.
(y) Jackson v. Attrill, Peake, 180.
(z) Burnyeat v. Hutchinson, 5 B. & A. 241.
(a) Scott v. Gilmore, 3 Taunt. 226.
forms one item in a bill, the statute bars the recovery of that item, though the plaintiff may recover for the residue (b). If two kinds of spirits are sold at the same time, amounting together to more than 20*., the seller may recover, though each separately were below that value (c).
The defendant cannot urge this statute as an objection to the claims of the plaintiff, after a settlement of accounts had between them(d).
Of Sales On Prohibited Days.
By the statute of Charles II., for the better ob- The Lord'i servation of the Lord's day, it is enacted (a), "that ay. "no tradesman, artificer, workman, labourer, or "other person whatsover, shall do or exercise any "worldly labour, business or work, of their ordi"nary callings, upon the Lord's day or any part "thereof (works of necessity and charity only
(J) Gilpin v. Rendle, Selw. N. P. 61.
(c) Owen v. Porter, 4 C. & P. 367, coram Bosanquet, J.
(d) Dawson v. Remnant, 6 Esp. 24; and see Spencer v. Smith, 3 Campb. 9; Crookshank v. Rose, 5 C. & P. 19; post. [On the same principle it was held in a late case, that the value of goods sold by an illegal measure might be set off in an action brought against the vendor, where such claim had been included in a settlement of accounts between the parties, Owens v. Denton, 1 Cr. M. & Rose. 711 ; see Knox v. Whalley, 1 Esp. 159.]
(a) 29 Car. II. c. 7, s. 1.
'* excepted)." And that "no person or persons "whatsoever shall publicly cry, show forth, or ex"pose to sale, any wares, merchandizes, fruits, "herbs, goods or chattels whatsoever, upon the "Lord's day or any part thereof."
saie> on Upon this statute it has been decided, that a
Toid. horse-dealer cannot maintain an action on the sale and warranty of a horse, made on Sunday (b). And the plaintiff cannot recover, though it were at the express instance and request of the defendant, that the contract was entered into on that day (c). Bayley, B. once expressed a doubt (d), whether the statute was intended to apply to all bargains on Sunday, and whether it was not confined to manual labour, and other work visibly laborious, and the keeping of open shops. But the learned Judge on a subsequent occasion observed, that he was satisfied such a construction would be contrary to the spirit of the Act. (e). if within To make a sale void under this statute, it must nar"cai1Ing* De proved to be within the ordinary calling of the seller or his agent. Therefore, where the plaintiff was a horse-auctioneer, and sold a horse on Sunday by private contract, it was held that the statute
did not apply (f). The contract must be proved to have been completed on Sunday; therefore, where there was no written memorandum of the contract at the time, and the horse sold was not delivered till the following Tuesday, the contract was held not to be complete until the latter day, and therefore not avoided by the statute (g). It seems the vendee may maintain an action on the contract, if he was ignorant of the fact, that the vendor was exercising his ordinary calling in selling the chattel (A). Where the contract was commenced on Saturday, but completed on Sunday, and the defendant was proved to have subsequently promised to pay, the Court held, that it might be considered a ratification of the agreement of Saturday, and that the action might be sustained (i).
(_/") Drvry v. Defontaine, 1 Taunt. 131; see Peatey.Dicken, 1 Cr. M. & R. 426. It seems that at common law any act on a Sunday, not prohibited by statute, would be legal; see Cro. Jac. 279, 406; 1 Stra. 472; 1 Taunt. 136 ; and see Rex v. Younger, 5 T. R. 449; Rex v. Whitnash, 7 B. & C. 596 ; Begbie v. Levi, 1 Cr. & J. 180; Sandiman v. Breach, 7 B. & C. 96.
(g) Bloxsome v. Williams, 3 B. & C. 232; see Williams v. Paul, 6 Bingh. 655.
(k) Bloxsome v. Williams, 3 B. & C. 232.
(i) Williams v. Paul, 6 Bingh. 653. Bayley, J. ruled at the trial that the defendant, having kept the chattel, was liable on the quantum meruit, though not for the price agreed on by the bargain of Sunday.