Sidebilder
PDF
ePub

tate, which gives one moiety to the informer, and the other to the King, it is naught, only as to the informer, but good for the King 2 Hawk. P. C. 272. fect. 45. Cro. Car, 330. S. P. in a cafe there cited to have been adjudged in the Exchequer, Agard verfus Candifh Moore 564. Anderf. 127. S. C. and Cro. Jac. 366. S. P. During the year next after the offence committed, the penalty is divided between the crown and the informer; after that year, the crown fhall have the whole.

The cafe of Hammon verfus Griffith, Cro. Eliz. 583. information upon a penal ftatute for the Queen and himself, before any plea pleaded the informer died; and Coke attorney general moved the court, whether he might proceed upon it for the Queen? and the court held that he might; and if the informer will be. nonfuited, or releafe, the Queen may profecute. And fo it was ruled between Stretton and Taylor, where the Queen's attorney would enter a non vult profequi; yet the informer might proceed for his part; and fo where the Queen will pardon, &c. for it is but for her own part only, wherefore it was ruled accordingly: So that if the action at bar was not brought in due time as to the informer, yet as to the King it is in due time.

Serjeant Leigh for the defendant-It is objected by my brother Burland, that the offence was not committed until the whole of the principal money was paid to the defendant. But I conceive the offence was compleatly committed the very inftant when the defendant received the 6. 5s. for intereft by way of advance for the loan of 100/. for three months, for the offence mentioned in the flat. 12 Ann. whereby a man fhall forfeit treble the value of the money lent, is the receiving or taking more than 51. per cent. per annum, for the forbearance; therefore, the time when he takes the money for forbearance, is the inftant the offence is compleatly committed; no cafe has, or can be cited, to prove that the offence is not committed, until the principal money be paid.

My brother Burland has ftarted a new point, which was not mentioned upon the first argument, or at the trial, viz. That fuppofing the action is not brought in due time with refpect the informer, yet that judgment may be entered for the King: I was not aware of this, and therefore defire a few days to look into the cafes he has cited.

Gould Juftice-This comes on before the court, upon a cafe flated by the confent of the parties, for the opinion of the court, which is not upon record like a special verdict; fo I apprehend we are not obliged to take care of the King, nor can we regularly Vol. III. take

S

take into confideration any intereft belonging to the crown in this cafe.

Chief Juftice De Grey-The parties have agreed by a cafe ftated to fubmit this fingle point to the opinion of the court, whether the action be brought in due time; and as at prefent advised, I think we cannot take into confideration any intereft the crown may poffibly have in this cafe.

Blackflone Juftice-Are informations upon the statutes of ufury different from actions of debt qui tam, &c.?

Serjeant Burland-In this kind of action the plaintiff recovers treble the fum lent in debt, but no damages or cofts; for if any damages were affeffed, or cofts taxed and entered in the judg ment, it would be erroneous, as it hath been determined in B. R. because there is no debt due until the recovery, and therefore there can be no damages for the detention of any debt; informations qui tam in the court of Exchequer, are merely in the nature of popular actions like the present.

Chief Juftice De Grey-As to this point (viz.) that fuppofing the action is not brought in due time with refpect to the informer, yet that judgment may be entered for the King, there is no cafe but that in Cro. Car. 330.

3 Keb. 804. Serjeant Burland-In Saville 6. caf. 15. there is the fame point, Mod. 267. Freem. 235. per Manwood. Although the informer was reftrained to fue within a year, and had paffed his time, yet the information is good for the Queen. And in Moore 58. caf. 165. it is held by Dyer that where a ftatute gives a remedy to the party, fo that he makes his fuit within one year after the offence committed; although that he put in his information fix years after the offence committed, yet it is fufficient for the Queen, to have the punishments given by the ftatute. (Adjourned to look into the cafes.)

At another day.

Serjeant. Leigh-It is infifted, that although this action was not brought in due time, yet that judgment may be entered for the King; I have looked into the cafes cited to prove this, and find they were all upon informations, and not upon actions of debt qui tam, &c. I have inquired of the officers, and most eminent practifers in B. R. and been informed by them, that in actions qui tam upon penal ftatutes, whenever the informer fails. in proving that he brought his action within a year after the of fence committed, he is always nonfuited; but no judgment or proceedings are ever had afterwards in fuch cases for the King;

and

and Serjeant Hawkins diftinguishes between actions and informations qui tam.

Serjeant Burland in reply-The general queftion is, Whether this action was brought in due time? I have, in my outfet endea voured to prove that it was, and must fubmit it to the court, that my brother has not fhewn to the contrary, fo fhall`pafs on to the other matter which I infifted upon; that although the court shall be of opinion that the action is not brought in due time, as to the informer, yet that judgment upon this record may be entered for the King.

My brother Leigh fays, there's a difference between an action qui tam, and an information qui tam, and seems to admit, that if this had been an information qui tam, judgment might have been entered for the King. He fays, that Serjeant Hawkins dif tinguifhes between actions qui tam, and informations qui tam; but I take it quite the contrary; for he treats of both together in the fame words, in his obfervations upon the ftatutes relating both to actions and informations. 2 Hawk. P. C. 271, 272.

In Michaelmas term, 1 & 2 Ph. & Mar. in the Exchequer Roll 77. an information qui tam was exhibited the 23d day of November, 1 & 2 Ph. & Ma. againft one Wyche, for fhooting in a hand-gun contrary to the flat. 33 H. 8. c. 6. whereby the penalty is given, one moiety to the King, and the other to the informer; and by fedt. 22. of that ftatute, if the King within one year after fuch offence, do not purfue, and every other perfon within one half year after fuch offence, commence their fuits, then as well the King, after one year, as every other perfon after half a year, fhall be barred of their fuits, actions, informations, &c. and the parties offending fhall be of all fuch offences and forfeits, clearly difcharged and quit. It appeared to the court that the informer had not exhibited this informationwithin half a year after the offence committed, but within one year, and thereupon judgment is entered upon record for the crown for the whole penalty. Confideratum eft quod dictus, T. Wyche oneretur to the King and Queen, for the whole penalty.

This cafe was adjourned over until this prefent term, when the opinion of the court was given that the action was not brought in due time; and that they had no authority to interfere with refpect to the crown (to the following effect)

Lord Chief Justice De Grey-Ufury is money given for the ufe of money for any certain time, and is called (at this day) the in

[ocr errors]

tereft

tereft thereof; the lending or letting out money at intereft or upon ufury, before ftat. 37 Hen. 8. c. 9. was against the canon law, the common law, and the ftatutes of this realm; it was forbidden He reigned by the laws of King Alfred*, Horne's Mirror, cap. 1. fect. 3.

from 871, till.

901.

+ Suppofed to be written

about the

year 1100.

Si quis de ufura convictus fuerit, omnes res fuas amittat. + Cuf tumier de Normandy, cap. 20. Inter leges fancti Edwardi.

If any one after his death had been found an ufurer, all his Temp. Hen. goods and chattels were forfeited to the King. Ufurarij omnes 2. anno 1154. res, five teftatus five inteflatus decefferit, domini regis funt, Glanvil, lib. 7. cap. 16.

By the fat. of Merton, cap. 5. anno 1235, it is granted by the King, that from henceforth ufuries fhall not run against any be ing within age. Lord Coke in 2 Inft. 89, fays, this ftatute is expounded to extend to the ufurious Jews that were then in England; for at that time, and before the conqueft alfo, it was not lawful for Chriftians, to take any ufury; and by this act it is manifeft, that the ufury intended by the ftatute, was not unlawful; for the ufury due before the death of the ancestor is enacted to be paid, and after the full age of the heir alfo; and no ufury was permitted but by the Jews only.

But by the flat. Judaifmo, 18 Ed. 1. anno 1290, it is ordained and established, that no Jew from thenceforth fhould take any ufury, 2 Inft. 89, 506.

And by many authorities and records it appears, that ufury was unlawful and punishable in all the reigns until the ftat. 37 H. 8. c. 9. which feems wonderful, as it appears, that between the 50th year of Hen. 3. and the 2d year of Ed. 1, which, was not above feven years compleat, there was paid into the King's coffers four hundred and twenty thousand pounds, of and for the ufury of the Jews. 3.Inft. 151.

It appears by the hiftory of Charles 5th, that in the year 1490, money, was borrowed at 40l. per cent. in 1511, at 20l. per cent. and in 1530 ufury was fixed per Charles 5th, at 12l. per cent. Robertfon's Hift. Spain.

By the ftat. 37 H.8. c. 9. anno 1545, no perfon, by way of any corrupt bargain, loan, exchange, chevizance, fhift or intereft, of any wares, or other things, or by any other deceitful way, fhall, take in gains for the forbearing of one year for his money or other thing that fhall be due for the fame wares, or other things above 10. in the 100/. upon pain of forfeiting treble the value of

the

the wares, or other things fold, imprisonment, fine and ransom, at the King's pleasure.

There is no mention in this ftatute made of the loan of money; the offence intended to be punished, seems to be the taking in gains for the forbearing of one year for his money, or other thing that fhall be due for the Jame wares or other things, above 10l. in the 100l. it's not faid for money lent, or the ufe or interest of money lent; fo that it feems as if it was then ftill penal to take any intereft (even 51. per cent.) for the loan of money.

But by the ftat. 13 Eliz. c. 8. anno 1370. fect 3. all bonds, &c. made for payment of any principal, or money to be lent, or covenant to be performed upon or for any ufury in lending or doing of any thing against the ftat. 37 H. 8. ch. 9. upon or by which loan or doing, there fhall be referved or taken above the rate of 10/. for the 100l. for one year, fhall be utterly void.

By the 21 Jac. 1. c. 17. anno 1623, no perfon fhall take for loan of monies, &c. above eight for a hundred for one year.

By 12 Car. 2. c. 13. anno 1660, no perfon fhall take for loan of monies, &c. above 6. for the forbearance of 100/. for a year.

And by the 12 Ann. c. 16. anno 1713, intitled, An act to reduce the rate of intereft, &c. ft. No perfon upon any contract, fhall take for loan of any monies, &c. above the value of 5. for the forbearance of 100l. for a year. 2dly. All bonds and affurances for payment of any money to be lent upon ufury, whereupon there fhall be referved or taken above five in the hundred, fhall be void. And 3dly. Every perfon who 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, shall forfeit the treble value of the monies and other things lent.

To conftitute the offence for which the prefent action is brought, to recover treble the value of the money lent, these three things must concur: ft, A contract between the parties; edly, Monies or other things lent; 3dly, Above 5l. per cent. per annum, received by the lender for the forbearance. And whenever these three matters concur, then the offence is committed; no time is mentioned with refpect to payment of the principal money lent; the principal money may never be paid, and yet

$ 3

the

« ForrigeFortsett »