Page images

by his replication. The provisions of the legislature relating to usury are as follow: by stat. 37 H. 8. c. 9, (by which all former statutes against usury are repealed,) s. 3, "no person by way of corrupt bargain, loan, &c. or other means, shall take for forbearance of 1001. or other thing due for wares, &c. for one whole year, above 101. per centum, and so pro rata, &c.” By stat. 13 Eliz. C. 8. (by which 5 and 6 Edw. 6. c. 20, for repeal of the stat. 37 H. 8. c. 9, is repealed, and consequently, stat. 37 H. 8. c. 9, is revived,) “all bonds, contracts, and assurances , collateral, or other, to be made for payment of any principal, or money to be lent, or covenant to be performed upon, or for any usury in lending or doing any thing against the act 37 H. 8. c. 9, upon or by which loan, &c. there shall be reserved or taken above the rate of ten pounds for the hundred for one year, shall be utterly void.” In stat. 21 Jac. c. 17. s. 2, this clause is repeated almost verbatim, but the rate of interest allowed to be taken is reduced to 8l. in the hundred. The same clause is again repeated in stat. 12 Car. 2. c. 13. s. 2, where the rate of interest is reduced to 61. per centum. And, lastly, by stat. 12 Ann. st. 2. c. 16, (the principal statute on this subject,) all bonds, contracts, and assurances, for payment of any principal or money to be lent, or covenanted (20) to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of 51. in the hundred, shall be utterly void. Where the lender of stock reserved to himself the dividend by way of interest, and the option of deciding, at a future day, whether he would have the stock replaced, or the sum produced by the sale of it repaid to him in money, with five per cent. interest, it was holden”, that this bargain was usurious. In pleading usury, it is not necessary to recite the statutec; but, in framing the plea, care must be taken, 1st, that it should state," that it was corruptly agreed , &c. :" 2ndly, that the usurious agreement be particularly set forth, and the quantum of interest agreed to be given ; 3dly, that the same exactness be observed in stating the agreement, so that it may correspond with the evidence, as in other cases of

d Nevison v. Whitley, Cro. Car. 501. e Hinton v. Roffee, 2 Show. 329.

a 13 Eliz. c. 8. $. 3.
b White v. Wright, 3 B. and C. 273.
c Bro. V. M. 255. cited in Com. Dig.

(Pleader, 2 W. 23.)

(20) Should it not be printed “covenant?" See the stat. 13 Eliz. c. 8. The stat. 12 Ann. stat. 2. c. 16. is partially repealed by later statutes, 3 & 4 W. 4. c. 98., 5 & 6 W. 4. c. 41. as to bills, notes, and mortgages.

contract; for in a case where the agreement was for the forbearance of money until one or other of twc days, and the plea, instead of stating it in the alternative, stated it as an alsolute forbearance until one of those days, the variance was holden fatal ; 4thly, the plea must aver, that the agreement was to pay such a sum for giving day of payment; merely stating, that the sum agreed to be given, for giving day of payment, exceeded the rate of legal interest, is not sufficiente.

It is to be observed”, that although a security tainted with usury in its inception may be avoided, even in the hands of an innocent purchaser, for a valuable consideration without notice, yet a subsequent usurious contract will not avoid a security, which was good at the time when it was made (21). A substituted security, which has been given for a security contaminated by usury, is void, if such substituted security be given either to the party to the original contract, or to his personal representativei But, where the original usurious security has been transferred by the party to whom it was given to another person, ignorant of the usury, and such other person accepts from the original debtor another security, which renders the first security void, the second security is available in the hands of such innocent person. Hence where A. for an usurious consideration k gave

his promissory note to B., who transferred it to C. for a valuable consideration without notice of the usury, and afterwards A. gave C. a bond for the amount, it was holden, that in an action brought by C. against A. on the bond, the bond could not be avoided on the ground of the usurious contract between A. and B. In an action of debt on a bond', to which usury was pleaded, it appeared that the plaintiff had lent the defendant 10001. for the securing of which, with lawful interest, a bond was given, and the defendant also agreed to give the plaintiff a salary of so much a-year, as a clerk in his brewery. It was not intended that the plaintiff should perform any

f Tate v. Wellings, 3 T. R. 538.
g Swales v. Bateman, W. Jones, 409.
h Ferrall v. Shaen, 1 Saund. 294.

i Admitted per Cur. in Cuthbert v.

Haley, 8 T. R. 392, 394. k Cuthbert v. Haley, 8 T. R. 390. 1 Wright v. Wheeler, 1 Campb. 165 n.

(21) The same rule holds in the case of a bill of exchange; if good in its inception, usury in the intermediate indorsements will not avoid it in the hands of a bond fide holder. Parr v. Eliason, 1 East's R. 95. Daniel v. Cartony, i Esp. N. P. C. 274. S. P. ante, p. 323. See late stat. referred to ante, n. 20.

service for the defendant there, but the salary was a mere shift, to give the plaintiff more than 5 per cent. interest for his money. One year's salary having been paid, the parties agreed, that it should be deducted from the principal, the deed securing the salary cancelled, and a fresh bond taken for the remaining principal, with 5 per cent. interest, and on this bond the action was brought. Lawrence, J.-" The original contract between these parties was certainly usurious, and no action could have been maintained on the first bond: but there was nothing illegal in the last bond: it was not made to assure the performance of the first contract; nor does it secure more than 5 per cent. interest to the plaintiff. The parties saw they had before done wrong: they rectified the error they had committed, and substituted, for an illegal contract, one that was perfectly fair and legal. I see no objection to their doing that, and therefore am of opinion, that the present action is maintainable." Verdict for plaintiff. The reader should be apprized that there was a contrary decision by Chambre, J. on this point, viz. Barnes v. Hedley, 1 Campb. 157; but the preceding opinion of Lawrence, J. seems to be the better opinion; and the case of Barnes v. Hedley having been brought under consideration in the Court of Common Pleas, it was solemnly determined, that after the usurious securities had been cancelled by consent, a promise by the borrower to repay the principal and legal interest was binding m.

5. Infancy.

An infant may bind himself by a single bill" to pay for recessaries; but if he enters into an obligation with a penalty such obligation may be avoided by a plea of infancy, (22) ;

m Barnes v. Hedley, 2 Taunt. 184.

Inst. 172. a. Russell v. Lee, 1 Lev. 86.

o Ayliffe v. Archdale, Cro. Eliz. 920

Moor, 679, S. C.


(22) Whether such obligation be void or voidable appears to have been a vexata quæstio. See Morning v. Knopp, Cro. Eliz. 700. Authorities tending to shew that it is void, are, Noy's Rep. 85. Delavel v. Clare.—3 Com. Dig. 163. (C. 2.)—Bull. N. P. 182. If an infant become indebted for necessaries, and give a bond in a penalty for the money, it will not extinguish the simple contract debt; for the bond is void(supposing such a bond to have been void at common law, on the ground of its being manifestly prejudicial to the but infancy cannot be given in evidence under the general issue non est factum P. Upon the principle which exempts an infant from a penalty, it has been holden 9, that plaintiff may recover in an action for money had and received, a sum, which, while an infant, he had paid in advance towards the purchase of a share in defendant's trade; to be retained by defendant as a forfeiture, if plaintiff failed to fulfil an agreement to enter into partnership with the defendant.

An infant cannot give a security for interest"; consequently to a bond with a penalty conditioned for payment of interest as well as principal, infancy may be pleaded in bar.

6. Payment-Solvit ad Diem-Solvit Post Diem, and Evidence


Payment.-At the common law, it was a general rule, that where an action was grounded on a deed, the defendant could avoid it by matter of as high a nature only, as by an acquittance under seal. Hence to debt on a single bill

, payment merely without an acquittance could not properly (23) be p Whelpdale's case, 2nd Res. 5 Rep. 9 Corpe v. Overton, 10 Bingh, 252. 119. a. and new rules, ante, p. 544. distinguishing Holmes v. Blogg, 8

Taunt. 35.
Fisher v. Mowbray, 8 East, 330.

infant, quære, has the stat. 4 Ann. c. 16. s. 13, made

any alteration in the law in this respect). Authorites tending to prove that such obligation is voidable only, are, Edmunds case, i Leon, 114.2 Rol. Abr. 146. (A.) 4.—Litt. s. 259.—Perk. s. 12.—1 Bl. Com. 466.

Tapper v. Davenant, as reported in 3 Keb. 798, but not as reported in Bull. N. P. 155.—Salk. 279. per Treby, C. J. This question was again agitated in Baylis v. Dinely, 3 M. and S. 477, where it was decided on special demurrer, that in debt on bond to which the defendant pleaded infancy, the plaintiff could not reply that the defendant had ratified the bond after he came of age; the court observing, that the ratification must be by an instrument of as high a nature as that which created the original obligation. 130. stat. 9 G. 4. c. 14. s. 5.

(23) In Nichols case, 5 Rep. 43. a. to debt on a single bill, the defendant pleaded payment without acquittance, on which issue was joined and found for the plaintiff. It was holden, that, although payment without acquittance was no plea, and that issue was joined on a thing not material ; yet forasmuch as there was an issue joined on an affirmative and negative, which issue was found for the plaintiff, it was expressly helped by the statutes of jeofails, 32 H. 8. c. 30. and 18 Eliz. c. 14.

See ante, p.

pleaded $. But now, by stat. 4 Ann. c. 16. s. 12, where debt is brought on any single bill, if the defendant has paid the money due thereon, such payment may be pleaded in bar.

To debt on bond with a condition for the payment of money on a day certain, the defendant (having craved oyer of the condition,) might, even at common law, have pleaded payment at the day t; because such plea was in effect a plea of performance of the condition merely.

Solvit ad diem.-A plea of payment, from the language of the plea when the pleadings were drawn in Latin, has obtained the name of a plea of solvit ad diem. This plea is the proper form of a plea, as well where the money has been paid before the day, as where it has been paid at the day. Indeed, in the case of a bond conditioned for payment at a day certain, if the money has been paid before the day, solvit ad diem is the only proper plea u; for if the defendant, agreeably to the fact, should plead payment before the day, and issue should be joined thereon, and a verdict found for the plaintiff, and judgment accordingly; such judgment may be reversed on error; because there would still remain a possibility that the money was paid at the day, in which case the plaintiff would not have had any cause of action. Hence in the case of payment before the day, the defendant must plead a payment at the day; and then if issue is joined thereon, proof of payment before the day will be sufficient to support the defendant's plea* (24). Where a bond is conditioned for the payment of money on or before such a day y, the defendant may plead payment before the day, if the fact be so; and the plaintiff ought not to demur to such plea, as tendering an immaterial issue (25). But if to a bond so conditioned 2, the

Dyer, 222. b. S.C. in marg. See also t Doct. pl. 107.

Doctr. pl. 181. u Holmes v. Broket, Cro. Jac. 434. y Fletcher v. Hennington, 2 Burr. 944.

Merril v. Josselyn, 10 Mod. 147. and 1 Bl. R. 210.

Jernegan v. Harrison, Str. 317. 2 Tryon v. Carter, Str. 994. 7 Mod. x Bond v. Richardson, Cro. Eliz. 142. 231. Leach's Ed.

& Doct. Plac. 107.

(24) “ In the case of a bond conditioned for payment at a certain day, there cannot properly be any legal performance of the condition, but by payment at the day. Payment before the day may indeed be given in evidence on solvit ad diem, but that proceeds upon this notion, that the money is considered as a deposit in the hands of the obligee until the day arrives, and then it is actual payment.”— Per Lord Hardwicke, C. J. in Tryon v. Carter, 7 Mod. 231. Leach's Ed.

625) “ If no payment has in fact been made, the proper replica

« EelmineJätka »