into the clause, for which there is not in any part of it the least authority. The truth is, that the du ration of the service of the substitufe is neither confined to any definite period of years beyond five, nor is it absolutely unlimited, but it is made to depend wholly on a contingency, namely, the continuance of the embodying of the Militia by his Majesty's command. If the Militia had not been ordered to be embodied within the prescribed period of five years, the substitute's service would have ceased, as well as that of the ballotted man, at the end of five years from the date of his enrolment; but such order having issued, the substitute is now bound by the express words of the act of parlialiament, and of his oath, to serve as long as the Militia for which he is enrolled shall remain embodied, and no longer. The meaning of the act on this subject is so clearly and plainly expressed, that it admits of not the least doubt; nor is there in any part of the act any clause which, rightly considered, in the smallest degree militates or interferes with this construction. The sections relied upon in the petition (all of which we have attentively read) are perfectly consistent with it Some of them have no reference whatever to the duration of a substitute's service, such as sections 15, 32, 37, 38, 45, 61, and 143. The 59th, 96th, and 132 clauses, in which the discharge of the substitute is mentioned, and a power given to inflict, by way of punishment, an extension of his service, which the petition states to render the limitations contended for indisputable, afford no such in

ference; on the contrary, these clauses will be found perfectly consistent with the construction above given of the act, as to the true nature of the limitation of a substitute's service.

The fallacy of the argument used in the petition arises from not considering that the act which passed in 1802, necessarily provided for every case which might arise as well in a time of peace as of war; when the Militia should not be, as well as when it should be, embo died.

In many events which might have taken place (as has been al ready shewn) the substitute's ́service might have terminated at the end of five years, and it will still terminate, as to all who have served their five years, whenever the Militia ceases to be embodied, except as to any substitute who may, for any offence, have been sentenced to serve for a more extended period.

There is, therefore, no incon sistency in any of the provisions of the act; nor does it follow that because the service of the substitute is not limited to any definite period, that it is therefore wholly unlimited, and admitting of no possi ble extension, unless extended as a punishment for transgression. The service of the substitute, though not limited by time, is limited by events; and, till those events take place, the service cannot be discontinued, without the peril of incurring a direct violation of the law. We have written our opinion thus at large on this subject, not from any difficulty or doubt really belonging to it, but from the great importance of obs X 2

viating

A partnership or corporation, consisting of persons residing in Madrid, and others, consigned a large quantity of wool, to the value of 60 or 80,000l. to the defendants in London, to be delivered to the plaintiffs. The defendants refused to deliver it, and the plaintiffs sought relief in equity. The defendants filed a plea to the bill, on the ground that the plaintiffs were disabled to sue, by their being partners of the company, or members of the corporation, above-mentioned, the greater part of whom were necessarily resident at Madrid, at the time when the wool was consigned, which was a time when Madrid was under the dominion of the French. It was, therefore, argued, that the plaintiffs could not be permitted to sue on the behalf of those who, as being resident at the time of consignment, in a place then under the dominion of the French, must be considered, if not alien enemies to every purpose, at least as neutrals, adhering to the enemy, and residing in the enemy's coun try, which constituted a civil disqualification.

The Vice-Chancellor, in giving judgment on this plea, gave a de

subject. The old law on the subject was, that those only were disqualified to sue whose property was forfeited to the King, on account of a traitorous adherence to the enemy. That doctrine had, in the modern cases, been extended to those who, being originally British subjects or neutrals, voluntarily chose to reside for the purposes of trade in an enemy's country. But it was not, even upon modern authorities, true, that the mere act of residence in an enemy's country was necessarily a disqualification to sue here. It had been decided, that British prisoners in France might levy fines in this country; and the general doctrine admitted of various other qualifications. It was also clearly established, that where there was a plea of this kind, the whole of the circumstances constituting the disqualifi cation, must be clearly set forth. In the present case, it was not alledged that the partners then residing at Madrid, voluntarily resided there. They might have been detained by force for any thing that appeared. It might some time be a question, on this modern doctrine, who could sue? According to the old doctrine, the King could sue. But where the King could not sue, was nobody to be permitted to sue? and were the defendants always to be allowed to retain the property? In the present case, at any rate, the circumstances ne cessary to create the disability did not sufficiently appear, and the plea must be over-ruled.

The Vice-Chancellor said, that he meant to cast no reflection upon. the defendants, who might possi

bly

bly bave had good pensions for this resistance. It was fortunate, however, that Lord Wellington had relieved the people of Madrid from all disqualifications of this nature, however they might have before existed.

Hoflley v. Collier.-This was an action, on the Statute of Usury, for penalties to the amount of 13,000l. It appeared that the defendant was a general agent, residing at Plymouth, and had discounted, at two different times, bills to the amount of about 4000l. for Boyson and Co. timber-merchants, residing in London; on which he had charged about 201. over and above 5 per cent. Mr. Topping, for defendant, contend ed, that this charge being for commission, and expenses incurred, was lawful; and stated, that there were several decisions, proving that country bankers might make such charges. The jury, on Mr. Topping proceeding to call witnesses, stated, that he need not, as their minds were made up; but his lordship desired the proof to be proceeded in, which went to establish that it was the general custom to charge one-half per cent. on such transactions. In this case, onequarter per cent. was charged on the first, and one half per cent. on the latter discount. The SolicitorGeneral made a most able and eloquent speech in reply; when his lordship, in his charge to the jury, said,—“ Gentlemen of the Jury, This is an action on the Statute of Usury, a statute enacted a considerable time anterior to the times in which we live, which subjects parties who receive any profit upon loans of money, more than at the ate of 51. per cent. to very severe

٠٠

penalties, three times the amount of the sum lent. On the policy of this statute it becomes not me to speak as long as it remains on the Statute roll, obedience to it is my duty, as it is your's. To the principle of that Statute, I have no particular favour, nor any particular disfavour. Many people think that it would be of no injury to the public, if money should receive its market price, as well as other commodities; but the law says otherwise; and it is mine, and, I must say, your duty, to enforce that Statute, as long as it remains on the Statute Book, But though people may not legally take more than 5 per cent. as interest, yet persons dealing in bills have been allowed to take an indemnity for charges absolutely incurred, as in the case cited, when 5 per cent. was allowed as a fair indemnity to a banker. But no collateral advantage under the pretence of agency, no profit can legally be taken. In law nothing ever was or can be allowed above an indemnity for charges, (His lordship then stated the excess taken above legal interest under the name of commission, stamps, and postages.) Here there is an excess; if taken as a profit, the party is liable to the penalty; but it is a question for you, Gentlemen, whether any practice exists authorising such a charge as an indemnity. Let us consider the situation of the party,-he was not a banker,

kept no house or clerks for that purpose; therefore it appears to me, there is nothing in this case to justify the extra charges. If we are to hold it lawful, that there shall be no limitation to the charge a man may make as com

mission

mission on money transactions, it would be virtually repealing the statute. The labours of a judge may frequently be unpalatable, and sometimes may be unsuccessful; but he has only to look to his solemn oath of office, and from the judgment of his own mind, and the decisions of those who have gone before him, to attain a conclusion. This case I think is peculiarly pregnant with evidence that the charge was a colour for usury. In stating the law to you, which is my duty, I shall not encroach on your province; but I must state the law to be, that if the defendant has taken, as an advantage or profit to himself, more than 5 per cent. per annum, he has incurred the penalties for which this action is brought. The penalties are very severe, and I regret that in this case they are so. If you can see, which I cannot, from any thing that has yet been suggested, enough to warrant you in concluding, that the extra sum was taken as indemnity, you may give it if not, you ought to find for the plaintiff.

The jury, without retiring, found for the defendant.

Hampshire Assizes. - Duelling. Edward M'Guire, Andrew Dillon, Joseph Gilchrist, and Daniel O'Brien, were charged with the wilful murder of Lieutenant Blundell, in a duel, in the Isle of Wight.

The Rev. John Barwis is a magistrate, residing at Niton, in the Isle of Wight.--On the 8th of July, about eight in the evening, he was informed that Mrs. White, mother-in-law to Lieut. Blundell,

the deceased, wished to see bim; he went to her about dusk; in consequence of what she said, he went to the White Lion, and asked the landlord for Mr. M'Guire, who came to him, and they walked backward and forward near the inn. He told Mr McGuire, in consequence of information, he must bind him to keep the peace. Mr. M'Guire replied, he was a peaceable man, and that he had been ill used; that Blundell had raised a report that he had supplied M'Guire with clothes. Witness said he must do his duty, if he persisted in his intention of fighting, and requested him to go to the barracks immediately. He replied he should be happy to oblige him; and he repeated his request, and required his word and honour that he would not fight Blundell; McGuire replied, I give you my word of honour that I will not challenge Blundell; on which they parted, and McGuire went towards the barracks. Witness returned to the White Lion, and desired Blundell might be brought to him: he waited a considerable time, but he did not come; went to the house where he was, and saw Blundell, with Lieutenants Dillon and A. O'Brien. Mr. Blundell came to him, and they had some conversation. Mr. Blundell returned, and so did the witness: addressing himself to the company, Lieut. Dillon sitting at the head of the table, he said he feared they were there at no good; that he was a magistrate, and that be came to keep the peace: that if there was any disposition to a duel, be should bind them over. Mr. Blundell then took the lead in the conversation,

versation, and said, in certain situations, gentlemen in the army were obliged to fight duels. Dillon observed, if any officer in his regiment refused to fight, he should feel it his duty to inform the commanding officer. The rest, with the exception of Blundell, followed, but did not say so much about it. Witness then repeated that he would have no fighting, and asked if there was no intermediate course; he was told by Mr. Dillon, that fighting there must be, in some situations. After a little more conversation, he retired, saying there should be no fighting; Mr. Dillon said to him, there should be no fighting in your district." They were then eating and drinking freely. Witness then went home.

The judge censured Mr. Barwis for not acting more promptly.

James Fitzgerald, private in the 96th regiment of foot, is servant to Gilchrist, was so on the 9th of this month; was in Parkhurst barracks on that morning. By order of his master, he took to Newport a box; did not at that time know its contents; went to Mr. Webb's for a hat for him, and af. terwards went with his master to where the duel was fought, at the back of Carisbrook Castle. Mr. M'Guire was with his master. Soon after they were there, Mr. Blundell and Mr. Hemmings came to the spot; when they met they proceeded to the back of the Castle, and Mr. Hemmings measured out the ground, taking either 12 or 13 paces. Hemmings asked Mr. Gilchrist for a pistol; Gilchrist answered, if you have it, it shall be without my consent, and against my wishes, that they should be used on that

day; on which Mr. Hemmings was desired by Mr. Blundell to get one of his own, and the pistol was produced and loaded. Mr. Hemmings gave the word, and both fired together. Blundell stood his ground, and handed his pistol to Hemmings. Hemmings said the pistol was burst, and Blundell was asked to borrow one of Gilchrist, as he wished to have another shot. Then Gilchrist and Hemmings went to Blundell, and afterwards to M'Guire, but he did not hear what passed. After this they loaded. M'Guire's pistols, and each took

one.

Hemmings gave the word, they fired, and Mr. Blundell fell. M'Guire, Gilchrist, and Hemmings came up to him, Blundell said, my dear M'Guire, I am dying, but I forgive you from my heart and soul; then Gilchrist shook hands with him, and said, are you satisfied that we have behaved as gentlemen to-day; he replied, yes, my dear Gilchrist, I die in peace with you all. Witness was sent for a doctor, whom be met coming out; and when he returned, the parties were all gone.

Mr. Wm. Dunlop is surgeon of the 98th regiment; on the 9th inst. he was called on to attend Mr. Blundell about one o'clock, at Newport; he was lying on his back, his clothes taken off, and a medical gentleman attending. The ball had entered between the back bone and shoulder blade, had passed through the lungs, and struck the sixth rib on the left side, and lodged under the arm pit.

T. Rayles, Captain and Adjutant at the Army Depot, in the Isle of of Wight, on the 9th was in com

pany