ing and giving day of payment of the 357. so to be forborne, &c., from the time when the first-mentioned bill became due till the bill for 35%. should become due, the defendants should take, accept, and receive from Newton a certain sum, viz. 21. 1s. 6d. The count then alleged that, in pursuance of the said agreement, the defendants did then and there, viz. on the said 12th of April 1830, take, accept, and receive of and from Newton the said 21. 1s. 6d. for the forbearing, &c., from the time of making the said agreement until the time when the bill for 351. should become due; and that, as a security for the 351., and in renewal of the first-mentioned bill as to that sum, Newton did then and there, viz. on the said 12th of April 1830, in further pursuance, &c., make and draw his certain other bill of exchange in writing, bearing date the said 8th of April 1830, being the day when the first-mentioned bill became due, &c. The count then went on to describe the bill in other respects, and stated that it was then and there accepted by Joyce and Son, and indorsed and delivered by Newton to the defendants; and that the defendants then and there took and received the same as a security, &c., and in renewal, &c. And that the defendants, in further pursuance, &c., did forbear and give day of payment of the said 351 so to be forborne, &c., from the time when the firstmentioned bill became due, until the said bill for 35l. became due, the said first-mentioned bill not being paid or satisfied except as to the said 51. Averment, that the 21. 1s. 6d. so taken, &c., exceeded the rate of 51. for 100%. for a year, contrary to the form of the statute &c.: whereby &c. The seventh count contained a similar statement of the usurious renewal of a bill of 50%.; the usurious bargain, and the taking of the sum in consideration of 1835. Fox against (KEELING. 1835. Fox against KEELING. of forbearance, being laid (with a videlicet) on the 12th of June 1830, on which day also the new bill was in like manner alleged to have been drawn, bearing date the 4th of June 1830. The statements as to the contract of forbearance, and the forbearance actually granted, were the same as in the first count. The twentieth count stated, that Joyce and Son before the making of the nextmentioned agreement, viz. on the 20th of July 1830, drew a bill of that date upon the plaintiff, payable to Joyce and Son two months after date, for 30%., which bill the plaintiff accepted, and Joyce and Son indorsed and delivered to Newton; and that afterwards, viz. on the 23d of July 1830, it was corruptly, and against the form &c., agreed by and between the defendants and Newton, that the defendants should lend and advance to Newton, upon the discount of such bill, 287. 5s., and should forbear and give day for payment of that sum to Newton from the lending and advancing of the same until the bill should be due, and that for the forbearing, &c. the defendants should take, accept, and receive 17. 15s., and that for securing the payment of the said 287. 5s. so to be lent, &c., and of the said 17. 15s. so to be taken, &c., Newton should indorse and deliver to the defendants the lastmentioned bill. And the count averred that in pursuance of the said agreement, the defendants did afterwards, viz. on the 23d of July 1830, advance and lend, &c. and did forbear, &c.; and that, for securing the payment of the said 281. 5s. and 17. 15s., Newton, in further pursuance &c., did, on the said 23d of July 1830, indorse and deliver to the defendants the last-mentioned bill, which the defendants then and there took from him according to the said corrupt agreement, and upon the terms thereof; and the defendants afterwards, viz. on on the 6th of December 1830, took and received from Newton the said 17. 15s. for such last-mentioned forbearance in pursuance of the said last-mentioned agreement, which said sum, &c. (averment that 17. 15s. exceeded the rate of 5 per cent.) contrary to the form &c., whereby &c. The twenty-second count was for receiving from Newton, viz. on the 6th of December 1830, upon a certain other corrupt contract, made July 23d, 1830, ll. 15s. by way of corrupt bargain for the defendants' forbearing and giving day, &c. to Newton, of 281. 15s. from the 24th of July to the 6th of December, 1830, the said 287. 15s. being, on the said 24th of July and until and upon the said 6th of December, due from Newton to the defendants. Averment, that 17. 15s. exceeded the rate of 5 per cent. The twenty-fifth count was upon the usurious renewal of a bill for 301. at two months, drawn by Joyce and Son upon the plaintiff, dated July 20th, 1830, indorsed to Newton, and by him to the defendants; and it did not materially differ from the first and seventh counts. Plea, the general issue. On the trial before Denman C. J. at the sittings in London after Michaelmas term 1833, evidence was given in support of the above counts, but the witnesses were unable to state in any instance the day on which the usurious contract took place. It appeared, however, that the renewals took place after the renewed bills became due. For the defendants it was contended that, to support this action, the precise day of the usurious contract ought to have been proved; and Carlisle v. Trears (a) was cited. The Lord Chief Justice reserved the point, and the plaintiff had a verdict on the abovementioned counts. In Hilary term 1834, Hutchinson obtained a rule nisi for entering a nonsuit. 1835. Fox against KEELING. 1835. Fox against KEELING. Barstow now shewed cause. The precise day of the usurious contract need not be shewn. It is sufficient if the plaintiff shews a combination of facts, from which an irresistible conclusion results, that usurious interest has been agreed for and taken. Then, if two points of time are given, and it is clear that, if the forbearance was agreed for at any time between those two, the offence of usury has been committed, the plaintiff establishes his case if he shews that the contract of forbearance was to take effect from some such intermediate time, although he may not be able to fix the precise day. Here, that is the case at all events with the renewals. In each instance where the bills were renewed, it was clear that the contract took place after the first bill had become due. Thus, in the case of the bill mentioned in the first count, the bill originally given was due on the 8th of April. Newton, on some day after that time, agreed to give a new bill for 35l. at two months, bearing date the 8th of April, and to pay the defendants 21. 1s. 6d. for giving him time from the day when the first bill became due, till the day when the second was due. Now at whatever time between those two days the contract may have been made (and it must have been at some intermediate time), the interest was excessive. A similar argument will apply, though less strongly, to the cases of discount. If the forbearance began on the very day when the bills were drawn, the interest was excessive, and it is not necessary to shew how much the amount taken exceeded 5 per cent. In Partridge v. Coates (a), where the action was upon the present statute, and a variance appeared between the (a) Ry. & M. 153. 1 Car. & P. 534. declaration declaration and evidence, as to the day from which the forbearance was to begin, Abbott C. J. said, "You must, in a declaration for usury, shew, on the face of the record, that the period of forbearance is such, that the sum taken for interest is more than the party by law is allowed to take." Here the declaration shewed the period of forbearance to be such that the interest must have been usurious, and it was supported by the evidence. In a case of Harfield v. Levy, argued in the Exchequer (but not reported) Partridge v. Coates (a) was cited as shewing that, in such an action as this, the day of the contract is material. One of the learned Judges of that Court thought that that case did not go so far, but said that, if it did, he disapproved of the decision; it became unnecessary, however, to decide the particular point, because it appeared that there had been sufficient proof of the day. In Carlisle v. Trears (b) there was no specified period within which, on whatever day the contract took effect, it must have been usurious. In Brooke v. Middleton (c) the interest was alleged to have been taken for the forbearance of a sum of money from the 20th of April; but it appeared in evidence that the actual loan, from which the forbearance was necessarily to be dated, could not have taken place till the 21st, and the variance was held fatal. Here, in the cases of renewal, the forbearance was to be from the time when the first bill became due, till the maturity of the second; and in this respect the evidence agreed with the declaration. The same distinction applies to Carlisle v. Trears (b), Harris v. Hudson (d), and Borrodaile v. Middleton (e). (a) Ry. & M. 153. 1 Car. & P. 534. (c) 1 Camp. 445. (b) 2 Cowp. 671. (d) 4 Esp. N. P. C. 152. 1835. Fox against KEELING. (e) 2 Camp. 53. None |