Sidebilder
PDF
ePub

Farrell 119.

66

[ocr errors]
[ocr errors]
[ocr errors]

46

[ocr errors]

And to prove that this ufurious contract was not confummate and compleat, until all the money was paid by Hinchcliffe to the defendant; he cited the cafe of Browne and Fulfbye, 4 Leon. 43. upon the ftatute of 13 Eliz. c. 8. of ufury, the cafe was this; A. borrowed of B. 8ol. and was bound in an obligation to pay to him gol. at the end of the year. It was the opinion "of the juftices, that although the gol. was tendered, and B. the lender did tell the fame over, yet if he take and accept but of 80l. it is not ufury within the ftatute to make a treble forfeited; but yet in that cafe, the obligation itself is void." Alfo in Body and Faffel's cafe, 3 Leon. 205. there is a note, "That it was holden in the Exchequer by Baron Clark, that if "a man lendeth money, and for the forbearing of it contracts for more than 10. in the 100l. that the bond made for it is "void prefently; and that if he doth receive exceffive intereft, "he fhall forfeit treble the value." From which note it. follows, that he shall not forfeit treble the value, until he receives exceffive intereft. Whereupon Serjeant Davy concluded, that the offence in the cafe at bar was not compleatly committed, or confummate, until the 10th of August 1769, and there, fore this action was brought in due time.

66

Serjeant Glynn for the defendant, in Hilary term laft, infifted that the defendant committed the offence, charged upon him in the declaration, upon the 31ft of March 1769, which was more than one year before this action was brought; that the ufurious contract, and taking the 6. 55. for intereft of 100l. for three months by way of advance, conftituted and compleated the offence upon that day; for by the fate of the cafe Williams the defendant then advanced to Hinchcliffe the full fum of 100/. who immediately returned to Williams 6l. 55. for the forbearance for three months; fo that the 61. 55. was confidered at that time as ufury, or to be given for the use of 100l. for three months; and if the court fhould fay that fuch a contract and payment of unlawful interest as this, is no offence until the principal money be all paid, it would greatly hinder and delay profecutions for ufury.

The court broke the cafe (as it is called) in Hilary term last, but gave no decifive opinion.

Lord Chief Justice De Grey-The queftion is, whether this action was brought within one year next after the offence com mitted?

The flat. 12 Ann. c. 16. for reducing the rate of intereft, enacts, "that no perfon whatsoever, from and after the 29th day of September 1714, upon any contract which fhall be made from

66

*and after that day fhall take, directly or indirectly, for loan. "of any monies, wares, &c. above the value of 5/. for the for"bearance of 100l. for a year, and fo after that rate for a greater " or leffer fum, or for a longer or fhorter time; and that all "bonds, contracts and affurances whatfoever, for payment of any "principal, or money to be lent or covenanted to be performed upon or for any ufury, whereupon or whereby there fhall be " referved or taken above the rate of 5. in the 100/. fhall be "utterly void, and that every perfon which fhall after the time "aforefaid, upon any contract to be made, take, accept and "receive, by way or means of any corrupt bargain, loan, exchange, chevizance, fhift or intereft of any wares, merchan"dize, or other thing or things whatsoever, or any deceitful way or means, or by any covin, engine, or deceitful convey"ance, for the forbearing or giving day of payment for one "whole year, of and for their money or other thing above the "fum of 5, for the forbearing of 100l. for a year, and fo after "that rate for a greater or lesser fum, or for a longer or fhorter term, fhall forfeit and lofe for every fuch offence the treble "value of the monies, wares, merchandizes, and other things "fo lent, bargained, exchanged or fhifted; the one moiety to "the Queen, her heirs and fucceffors, the other moiety to him "or them that will fue for the fame, in the fame county where "the offence is committed, by action of debt, bill, plaint or information, &c." By this ftatute, three diftinct matters are confiderable.

[ocr errors]

66

Firft, No perfon, upon any contract, fhall take for loan of money, &c. above the value of 5. for the forbearance of 100l. for a year.

Secondly, All bonds and affurances for payment of any money to be lent upon ufury, whereupon there fhall be referved or taken above 5. in the 100l. thall be void. And,

Thirdly, Every perfon which fhall receive, by means of any corrupt bargain, loan, exchange, chevizance, fhift or intereft, of any wares, or other thing, or by any deceitful way, for the forbearing or giving day of payment for one year, for their money or other thing, above 5l. for 100l. for a year, fhall forfeit the treble value of the monies and other things lent.

If a man contracts to take for loan of money above 51. per cent. per annum, the contract is void; and yet it feems the penalty may not be incurred, if he never takes or receives, by means of such contract, above 5l. per cent. per annum. But at what time foever he takes or receives above 5l. per cent. for for

bearing

2d Argument

Eafter term

bearing or giving day of payment for a year, he that inftant has incurred the penalty; the plaintiff here took about 51. per cent. per annum, for intereft or ufury, by way of advance on the very day of the contract, he then had compleatly committed the of fence against the ftatute, and incurred the penalty therein, as it feems to me, as at prefent advised: but I give no opinion.

It is objected for the plaintiff, that the offence was inchoate, and not compleat upon the 31st of March 1769, but that there was a continuance thereof until the 10th of August 1769, when the offence was compleatly committed, and not before. I own I do not understand this; let the plaintiff's council upon the next argument enter fully into it.

Gould Juftice-I give no opinion now. We are to confider the facts ftated in the cafe as if found by a special verdict; the days and times in the declaration being under a videlicet, are not to be regarded: the ftatutes of ufury are to be construed together (like the bankrupt laws); and, by the ftat. 13 Eliz. c. 8. intitled an act against ufury, are directed to be moft largely and strongly conftrued for the repreffing of ufury, against all perfons who shall offend against the fame, by any way or device, directly or indirectly. When the defendant received 61. 5s, of the borrower's money, for the forbearance of 100l. for three months, I think he then committed the offence, and incurred the penalty.

Blackflone Juftice-I cannot fee how this is a continuation of the offence from the time of taking the 67. 55. illegal intereft by way of advance for 100l. for three months: but I give no opinion, as the cafe is to be argued again.

Nares Juftice-I was of council in this caufe, and therefore fhall not give any opinion; but I muft fay this is a queftion of great confequence; the cafe ftated muft be confidered as if it was a fpecial verdict; in fact, it's ftated, that 100l. was lent, and 6. 55. was paid immediately on the loan by way of advance for the forbearance of 100/. for three months; the action is by a common informer, who ought to be ftrictly confined to time according to the 31ft of Eliz. c. 5.

Serjeant Burland for the plaintiff-The question is, whether at the bar, in this action was brought within one year next after the offence was committed, and depends upon the fact ftated in the cafe, which is to be confidered as if it was a special verdict.

11 Geo. 3.

Antiently, it was against the common law, to take any premium whatever for the loan of money, as being against the law of God: our common law followed it; and by the ftatutes of 3 H. 7. and

11 H.

4.

all ufury is damned and prohibited, as being against the law of God, the laws of the realm, and the law of nature. 3 Inft. 152.

By the ftatute of 37 H. 8. c. 9. intitled a bill against ufury, all Anno 1546. afts, ftatutes and laws thentofore made concerning ufury, fhifts, corrupt bargains, and chevizances, and all pains, &c. concerning the fame are made utterly void. But notwithstanding it is cal led a bill againft ufury, it enacts, that no perfon fhall take for the forbearing of one year for his money, due for wares, &c. above 10/. in the 100l. fo that, in truth, it is the firft law which made ufury in a limited degree lawful in this kingdom; for before this ftatute, the taking of any premium for the forbearance or giving time for payment of money, was called ufury, and held to be both against the canon law, common law, and ftatutes before that time made against it. 3 Inft. 152.

The ftatute of 5 & 6 Ed. 6. c. 20. repeals the 37 H. 8. Anno 1551-2, c. 9. concerning only ufury, lucre or gains, of or for the loan, forbearing or giving days of payment of any fum or fums of money; and enacts, that no perfon by any means fhall lend or forbear any fum of money, for any manner of ufury, increase, lucre, gain or intereft, to be had, received or hoped for, over and above the fum or fums lent, upon pain to forfeit the fum or fums fo lent, and the ufury, increafe, lucre, gain or intereft thereof; imprifonment and fine at the King's pleafure. See Raft. ftat. tit. Ufury 7.

The ftatute of 13 Eliz. c. 8. revives the ftatute 37 H. 8. c. 9. Anno 1570. and is the first statute that makes bonds, contracts and affurances

void, whereby above 10l. per cent. per annum fhall be reserved

or taken for money lent.

By the ftatute 21 Jac. 1. c. 17. no perfon fhall take for the Anno 1623. loan of monies, &c. above 81. per cent. per annum.

By the ftatute 12 Car. 2. c. 13. no perfon fhall take for the Anno 1660. loan of monies, &c. above 61. per cent. per annum.

The ftatute of 12 Ann. ftat. 2. c. 16. reduces the interest to Anno 17136 51. per cent. per annum: 2dly, It makes all bonds and affurances void, whereupon there fhall be referved or taken more than 10/. per cent. per annum: And 3dly, It gives an action for treble the value of the money lent, against the lender, if he receives or takes more than 51. per cent. per annum, for forbearance.

This action is brought by an informer against the defendant for taking above 51. per cent. upon the loan of 100l. for three

months;

months; by the fate of the cafe, there is no doubt but he is guilty of the offence; but the queftion now is, whether this action was brought in due time, viz. within one year next after the offence committed..

I am to contend that the action was brought in due time, that the offence was not committed till the whole of the principal money was paid to the defendant, and no action would have laid for treble the value of the 100l. in the interval of time between the taking the 6. 55. for intereft of 100l. by way of advance, and the payment of the principal to the defendant, upon the 10th of August 1769, which is not one year before the action was brought.

Suppofe a banker difcounts a note, or bill of exchange for 100. payable in a year, and he advances to the perfon discounting the note or bill, no more than 94. the banker is not guilty of the offence of taking more than 5. per cent. per anmuth, before he receives the 100l. at the end of the year; nor would an action lie againft him for treble the value, z. gool. before the end of the year: if I am right in this fuppofition, it feems very like the cafe now before the court. The ftat. 13 Eliz. fhall have a ftrong and large conftruction againft the ufurer, for fuppreffing ufury; and no inconvenience can refult from confidering the offence inchoate from the time of the contract until the princi pal money was paid by the borrower, and received by the lender.

In Heydon's cafe, 4 Rep. 41. a. Bc. in an indictment for murder, the ftroke was given on the 4th of Auguft, anno 27 Eliz. and the perfon firuck, languifhed till the 9th of December, sanno 28 Eliz. when he died of the wound; it was held that no felony was committed until the death. By the ftatute of Glocefter, c. 9. a man fhall fue his appeal within a year and a day; it is held the year and day fhall be accounted from the death, and not from the ftroke, 4 Rep. 42. b. 2 Inft. geo. fo that although the felony may have relation to and begin by the ftroke, yet it is inchoate, and not compleat felony until the death. So in the cafe at bar, the fact of the contract was begun, but the offence against the ftatute was not compleat, until the money was wholly paid by the borrower to the defendant the lender.

But fuppofe the action is not brought in due time, with refpect to the informer (which I by no means admit), yet, with great deference to the court, judgment may be entered for the King in the prefent action qui tam, &c. Serjeant Hawkins obferves upon the conftruction of the flat. Eliz. c. 5. that if an information qui tam, be brought after the year, on a penal fa

[ocr errors]
« ForrigeFortsett »