Mazaredo. (a) The action was on a bill of exchange, drawn before the passing of the 58 G. 3. c. 93. (b) 1819. CHAPMAN Cur. adv. vult. against BLACK. ABBOTT C. J. now delivered the judgment of the Court. This was an action upon a bill of exchange for 401. drawn by one Akers upon the defendant, and accepted by him. The defendant pleaded the general issue. At the trial before me, it appeared that one White having occasion to borrow money, applied to Akers, who said he was willing to discount bills for him, if he procured the acceptance of the defendant. White did accordingly procure the acceptance of the defendant to two bills of 25l. each, drawn by White, payable to his own order at two months, and indorsed them to Akers, who discounted them, deducting 8l., a sum far exceeding the legal interest. When these bills became due, White, being unable to take them up, and being in possession of a bill drawn by him to his own order for 401. upon one Paterson, who owed him that money, indorsed this bill, and placed it, together with a sum of 20%., in the hands of the defendant for the use of Akers, who was to give hini (White) the difference; Akers, accordingly, did give White the difference, deducting 57. as discount upon the 407. bill, which (a) 1 Stark. 385. (b) By the 58 G. 5. c. 95. it is enacted, "That no bill of exchange, or promissory note, although it may have been given for a usurious consideration, or upon a usurious contract, shall be void in the hands of an indorsee for valuable consideration, unless such indorsee had, at the time of discounting or paying such consideration for the same, actual notice that such bill of exchange or promissory note had been originally given for a usurious consideration, or upon a usurious contract. had 1819. CHAPMAN against BLACK. had then about two months to run. This bill for 401. afterwards came into the hands of the plaintiff, without notice of the usury between Akers and White; it was not paid when at maturity; the plaintiff was then informed of the usury: he complained it was hard that the loss should fall upon him; and then it was agreed among the parties, that the plaintiff should have a new bill, to which the name of White should not appear, and in furtherance of this agreement the bill in question was drawn and accepted. I nonsuited the plaintiff at the trial, upon the authority of Lowes v. Mazaredo, considering it to be settled by that case, that the present plaintiff could not have sued either White or Paterson, upon the first 40%. bill, because he must make title through the indorsement of White, which was vitiated by the usury with Akers, and thinking he could have no remedy upon the substituted bill against any person, whom he could not have sued upon the original bill; and considering also, that the present defendant, who had accepted for the accommodation of White, stood in the same situation as White himself. Leave was given the plaintiff to move the Court to set aside the nonsuit, and enter a verdict for him; such a motion was made, and cause was shewn, and the point debated in the present term, before my Brothers Holroyd, Best, and myself. And upon consideration, we are of opinion that the nonsuit was right. The case of Lowes v. Mazaredo being subsequent to Parr v. Eliason and Daniel v. Cartony, both of which were there cited, must, in our opinion, be taken as furnishing the rule of law upon this subject; more especially, as the law has since been altered by a statute, passed, probably, in consequence of the decision of that very case; but which statute will not reach the present transaction. Then, as the plaintiff could not have sued White upon the first bill for 40l., can he sue the defendant, who represents White on the present bill? We think he cannot. The case of Tate v. Wellings shews that a substituted security generally stands in the same situation as the original. Indeed, if it were otherwise, the statute of usury might, in many cases, be easily evaded by a little prolongation of time, and multiplication of securities. The case of Cuthbert and Others v. Haley was cited for the plaintiff, but it is very different from the present. The plaintiffs in that case, who were bankers, had received from one Plank, a customer, several promissory notes made by the defendant; these not being paid when due, he gave the plaintiffs a bond for the amount; and to an action brought upon the bond, he pleaded that the bond was given to secure money lent to him by Plank upon usury. In fact, Plank had taken usurious interest upon discounting the notes for the defendant, but the plaintiffs were ignorant of that fact, not only when they took the notes from Plank, but also when they received the bond from the defendant. Here, the plaintiff was informed of the usury before he took the bill in question; and being informed of it, instead of having recourse to Akers, or the person from whom he had received the first 40%. bill, either by suit on the bill, if that could be done, or by reclaiming the consideration which he had given for it, which, undoubtedly, might have been done; he makes himself a party to a fresh bill, from which the name of White is studiously omitted, in order to cover the transaction; and if he be allowed to recover upon this bill against the present defendant, he will thereby enable 1819. CHAPMAN against BLACK. 1819. CHAPMAN against BLACK. enable Akers to keep the unlawful interest he has received from White: and this effect was known to him at the time of his taking the bill; whereas no such effect was known to or contemplated by Messrs. Cuthbert when they took the bond from Haley; but they took the bond for their own security only, and without reference to any other object. For these reasons, we, who heard the argument, think that the rule for setting aside the nonsuit must be discharged. Rule discharged. In the execu process against any man in the case of a mittance, before legally justified. LAUNOCK against BROWN and Others. (a) tion of criminal TRESPASS for breaking and entering plaintiff's dwelling-house and seizing a gun. Plea, not guilty. At the trial at the last spring assizes for the county of Hants, before Holroyd J., the defendants, two of whom were constables, and the third the game-keeper of the manor where the plaintiff resided, justified the trespass under a warrant granted by virtue of the stat. 22 and 23 Car. 2. c. 25. s. 2., which empowers game-keepers and other persons, authorized by warrant under the hand and seal of any justice of the peace for the county, in the day-time to search the houses of unqualified persons suspected of having in their custody guns, &c. for the purpose of destroying game; and to seize, detain, and keep the same, to and for the use of the lord of the manor, or to cut to pieces and destroy them. The plaintiff was proved to be an the case of felony. (a) This case was moved within the first four days, but, by accident, was omitted to be inserted in its proper place. unqua unqualified person; but on the warrant being produced several objections were taken to it as being informal. And it further appearing that the outer door of the plaintiff's house had been broken open, without his having been previously requested to open it, the learned Judge was of opinion that the justification was not sufficiently made out, and the plaintiff obtained a verdict. And now, Pell Serjt. moved for a rule to shew cause why the verdict should not be set aside, and a nonsuit entered. He contended that the defendants were justified in obeying the warrant; and that if the warrant was informal, the proper remedy of the plaintiff was not against them, but against the magistrate who had granted it. Then, as to the other objection, that the outer door was broken open, he contended that here there appeared to have been a misdemeanour on the part of the plaintiff; and that, in the execution of criminal process, the outer door may be lawfully broken open. If a previous request be held to be necessary, it will be very inconvenient; for in many criminal cases, as, for instance, felony, it will give the party accused notice that he may make his escape. ABBOTT C. J. I am of opinion that, in this case, the verdict is right. It is not at present necessary for us to decide how far, in the case of a person charged with felony, it would be necessary to make a previous demand of admittance before you could justify breaking open the outer door of his house; because, I am clearly of opinion that, in the case of a misdemeanour, such previous demand is requisite; and that is sufficient for the deter 1819. LAUNOCK against BROWN. |