PART Defence. * 1521 *If the landlord evict the tenant from parcel of the premises let at an entire rent, the latter, if he quit the resídue, is discharged from the whole rent (h); but if he continue in possession of the remainder he is liable pro tanto (i). Where the defendant is charged on his own account, he may show in defence that he took possession merely in his representative capacity, and that he offered to deliver up the possession, having derived no benefit from the occupation; as, that he took possession as administrator, and that the premises being productive of no profit to him he offered by parol, eight months after the death of the intestate, to deliver up the possession (k). `support the action, inasmuch as a title on the part of the plaintiff was not necessary to support the action, the declaration merely alleging an occupation by permission of the plaintiff. In that case, however, the action was against the vendee, who had obtained possession by fraud. It seems to be difficult, on legal principles, to say on what grounds the vendor is entitled to recover from the vendee, where the title of the former turns out to be defective. He must recover, if at all, either on an express or an implied contract. The question then is, whether the law will imply a contract of one kind where the parties have themselves entered into an express contract of a different nature, and wholly inconsistent with the contract to be implied. Where the defendant has derived no benefit from the occupation, it would be contrary to justice and equity that he should be liable in respect of such occupation; and it would be a very precarious test to make the right to sue to depend upon a nice calculation of the quantum of benefit received. The statute, it is true, contemplates an occupation by the permission of the plaintiff, and is silent as to his title; but the statute also contemplates the relation of landlord and tenant, a relation which the parties never intended to constitute, and in fact never did constitute. It may be productive of great hardship to the defendant that the plaintiff who is or who must be taken to be cognizant of his own title, should be able, upon a breach of his own agreement, to bind the defendant by a contract of an entirely different nature. See Hegan v. Johnson, 2 Taunt. 148; Neal v. Viney, 1 Camp. 471; supra, 1297. (h) Smith v. Raleigh, 3 Camp. 513. (i) Stokes v. Cooper, 3 Camp. 514, n. [See Fitchburg Cotton Manuf. Corporation v. Melven & al. 15 Mass. Rep. 270.] If A. lets to B. who underlets to C. and D., and A. gives notice to C. and D. to quit, and C. quits accordingly, and the premises occupied by him lie vacant for a year, after which, they are re-let by B. A. cannot recover against B. in respect of the premises held by C. for the time during which they were unoccupied. Burn v. Phelps, 1 Starkie's C. 94. Where the lessee took a farm under an agreement, which he did not sign, and the lessor failed to fulfil part of his agreement, as to allowing the lessee certain sporting privileges, it was held, that the lessor could not recover the stipulated rent, but only according to the value of the land, as found by the Jury. Tomlinson y. Day, 3 B. & B. 680. (k) Remnant v. Bremridge, 2 Moore, 94. [8 Taunt. 191. S. C.] It is no defence that the plaintiff has brought an ejectment to recover the same premises, and has laid the demise on the day when the alleged tenancy commenced (1). PART IV. The plaintiff cannot recover if it appear that the premises Defence. were let for an illegal purpose (m). But an action is maintainable for the rent of a Jewish synagogue, such establishments not being prohibited by any law (n). * USURY. To constitute usury (0) there must either be a direct loan, and a taking of more than legal interest for the forbearance of payment, or there must be some device for the purpose of concealing or evading the appearance of a loan, and forbearance, which really existed (p). The offence imports a contract, a forbearance, and a taking of usurious interest. * 1522 contract. The usurious contract, like any other contract, must be Proof of the proved as alleged ; and a variance as to the quantum of usurious interest will be fatal. In this respect, an indictment for usury differs from an indictment for taking more than 10s. in the pound for brokerage (q); for there the offence (1) Cobb v. Carpenter, 2 Camp. 13, n. But it would furnish a ground of application to the Court. And see Cowp. 246. But see the observations of Buller, J. 1 T. R. 386. And it would be otherwise after a recovery in ejectment, 1 T. R. 378. (m) As for the purpose of prostitution, Crisp v. Churchill, cited 1 B. & P. 340. Girardy v. Richardson, 1 Esp. C. 13. Selw. 65. But see Lloyd v. Johnson, 1 B. & P. 340. (n) Israel and others v. Simmons, 2 Starkie's C. 356. (0) The stat. 12 Ann. st. 2, c. 16, enacts, that no person shall take, directly or indirectly, for loan of any monies, wares, merchandise, or other commodities whatsoever, above the value of 51. for the forbearance of 100l. for a year, and so after that rate, &c.; and that all bonds, contracts, and assurances whatsoever, for payment of any principal or money to be lent, or covenanted to be performed, upon or for any thing whereupon or whereby there shall be received or taken above the rate of 51. in the 100l., shall be utterly void; and that every person who shall take, accept and receive, by way or means of any corrupt bargain, loan, exchange, chevisance, shift, or interest of any wares, merchandise, or other thing or things whatsoever, or by any deceitful way or means, or by any covin, engine, or deceitful conveyance for the forbearing, &c. shall forfeit and lose for every such offence the treble value of the monies, wares, merchandise, and other things so lent, bargained, exchanged, or shifted. (p) Barclay v. Walmsley, 4 East, 57. 5 Esp. C. 11. (q) Under the stat. 17 Geo. III. c. 26, s. 7. PART IV. Contract. * 1523 Usurious interest. consists in the simple excess, and the quantum of that excess being immaterial, a variance from it in evidence will not be material (r). If the declaration state an absolute agreement, and *the proof be of an agreement in the alternative to forbear to the one or other of two days, at the option of the borrower, the variance will be fatal (s). It is sufficient to prove the loan or forbearance according to its substance and legal effect. A forbearance by C. to A. is proved by evidence that A. is debtor to B., and B. to C., and of an agreement for an usurious consideration to be paid to C. that he shall take A. as his debtor (1), although B. join A. in the security to C. (u). So it would be by evidence of a loan by C. to B., and the giving a note as security by A. to C., more than legal interest having been taken for forbearance on the note (x). An allegation of a loan of a specific sum of money is satisfied by evidence of a loan to that amount, part in money, and part in uncoined gold of a certain definite value, which the borrower agreed to take as cash (y). On a count for usury in discounting two bills of exchange, one of which is described to have been drawn by B. on a certain person, to wit, John K., evidence of a bill drawn on Abraham K., is a fatal variance (z). The offence is completed in the county where the usurious interest is received, and the offence should be laid there (a). Where usurious interest has been taken by means of an *1524 agent, it is not essential to call the agent himself; * such a rule, it has been observed, would be very inconvenient (b). In an action for penalties for having deducted more than legal interest in discounting a bill of exchange, in order to prove the actual receipt of the amount of the bill, it was proved that a demand had been made on the acceptor by a person of the name of Brown, and that proceedings had (r) R. v. Gilham, 6 T. R. 265. (x) Manners v. Postan, 3 B. & P. 343. (y) Barbe v. Parker, 1 H. B. 283. (z) Hutchinson v. Piper, 4 Taunt. 810. (b) Per Chambre, J. 1 N. R. 103. PART IV. been instituted by him to compel payment, in consequence whereof, a person on behalf of the acceptor paid to Brown the amount of the bill and the costs of suit, on his producing the bill, for which Brown gave his receipt as the agent Usurious infor Barrow, the present defendant; and it was held that terest. this was sufficient evidence of the fact to go to a jury, although the proceedings were not produced, and although it was not proved that Brown was in fact the attorney for the defendant (c). Whether the sum taken under the name of commission be a reasonable remuneration for trouble, or be but a cloak for usury, is a question of fact for the determination of the Jury (d). And where there is conflicting evidence upon the subject, the Court will not grant a new trial unless it be manifest that the Jury have decided erroneously (e). A fresh contract made by parties privy to an usurious Effect of usury. agreement, and in furtherance of it, is void. But a *fresh *1525 contract made between the same parties in repudiation of the original usury, or with an innocent party who was not privy to the usury, is binding; thus, a fresh security given for the balance of a debt originally usurious is void (f). But where usurious securities have been destroyed by mutual consent, a promise by the borrower to pay the principal and legal interest is binding (g). If A. for an usurious consideration give his promissory note to B. who transfers it to C. for value, without notice of the usury, and afterwards A. gives a bond to C. for the amount, the bond is valid (h). But it would be otherwise if A. gave the bond to B. (i). A bona fide debt is not extinguished by being mingled with an usurious transaction (k). (c) Owen v. Barrow, 1 N. R. 101. Sed qu. The circumstance upon which the Court appear to have principally relied was the possession of the bill itself by Brown.-Where usury is committed by the wife, who lends money secured by bond to her husband, the bond is void, for the husband is liable, civiliter, though not criminaliter, for the act of the wife. Barnett v. Tompkyns, Škinn. 348. (d) Carstairs v. Stein, 4 M. & S. 192. See also Doe d. Grimes v. Gooch, 3 B. & A. 664. (e) Ibid. (f) Pickering v. Banks, Forrest, 72; Cuthbert v. Haley, 8 T. R. 390. (g) Barnes v. Hedley, 2 Taunt. 184. 1 Camp. 165. n. (h) Cuthbert v. Haley, 8 T. R. 390. (i) Ibid. (k) Gray v. VOL. III. See also Wright v. Wheeler, Fowler, 1 H. B. 462. If a bond be given without 60 PART IV. Competency. * 1526 General principles. The borrower of money at usurious interest is a competent witness for the plaintiff, in an action to recover penalties from the lender (7). A witness to prove usury in a contract between himself and the defendant, cannot be cross-examined as to other contracts which he has made with other persons, in order that it may be inferred, if he answer in the affirmative, that the contract in question was of the same nature; or in order to contradict him, if he answer in the negative (m). * VARIANCE. THE same reasons which require the cause of action or of criminal charge to be stated upon the record, require also that the allegations shall be proved; mere assertion, without corresponding proof, would be nugatory. And as such allegations and proofs are to answer certain legal purposes, it necessarily follows that it is always for the Court to pronounce whether the facts proved satisfy the allegations on the record (n). As questions of variance are of daily occurrence, it may not be improper, before the decisions on the subject are noticed, to enter into a brief consideration of the principles upon which the doctrine is founded. With respect to the proof of the facts and circumstances alleged, three predicaments may occur: they are either all proved as alleged, or none of them are proved; or part are proved wholly or partially, and the rest are either not proved, or absolutely disproved or negatived. The last of these predicaments is of course the only one which can afford ground for discussion. Now, considering that all human affairs and dealings are connected together by innumerable links and circumstances, forming one vast context, without any chasm or interruption, and undistinguished by the artificial boundaries and definitions of right and wrong prescribed by the law, it is in the nature of things impossible that a transac usury, the taking usurious interest afterwards will not avoid the bond. Dalton's case, Noy, 171; Vin. Ab. Ev. T. b. 124. (1) Abrahams v. Bunn, 4 Burr. 2251; Smith v. Prager, 7 T. R. 60; supra, 18. 760; Spenceley q. t. v. De Willott, 7 East, 108. (m) Spenceley q. t. v. De Willott, 7 East, 108. (n) A formal objection on the score of variance, if not taken at the trial, is not afterwards available. West v. Andrews, 1 B. & C. |