or empowered to act or practise as a broker in the premises; or any of them, within the City of London." Demurrer and joinder. Manisty in support of the demurrer.-The second plea is bad; for although a contract by way of gaming may be void, still it does not follow that an agreement to pay money lost upon such a contract is illegal and void. It is consistent with this plea that the plaintiff was requested, after the transaction was concluded, to pay the money to a third party for the defendant. [Martin, B. —The case of Oulds v. Harrison (a) virtually decides that this plea is bad.] The third plea is bad for the same reason. And, moreover, it is not stated, nor does it appear by the plea, that the money paid and alleged to be due upon the accounts stated is claimed by the plaintiff as broker. The plaintiff can only be defeated by shewing that his demand consists of a claim to remuneration for his services as a broker. Pidgeon v. Burslem (b) is an express authority upon this point. He was then stopped by the Court. Needham contrà.-As to the second plea: if the illegal contract mentioned in it were purely a collateral matter, the plea could not be supported. But it is alleged that the claim accrued "under and by virtue of" that illegal contract. The plaintiff, therefore, was a party to it. [Parke, B.-The plea does not negative the fact of a third party having won the money, and that the defendant requested the plaintiff to pay the amount over to him. The plea, therefore, is consistent with a state of facts which entitle the plaintiff to recover.] The third plea is good. Cope v. Rowlands (c), is an authority that an unlicensed broker cannot recover remuneration (a) Ante, p. 572. (b) 3 Exch. 465. (c) 2 M. & W. 149. 1854. JESSOPP v. LUTWYCHE. 1854. JESSOPP v. LUTWYCHE. for commission in buying and selling stock; and if the act is illegal and the plaintiff is particeps criminis, he cannot recover: Clayton v. Dilly (a), De Begnis v. Armistead(b). The case of Petrie v. Hannay (c), however, has a contrary aspect. [Parke, B.-Pidgeon v. Burslem cannot be sur mounted. The statute relating to brokers only precludes them for recovering remuneration for their services as such. Martin, B.-This plea is open to the same objection as the preceding plea.] Manisty was not called upon to reply. PARKE, B.-Both pleas are bad. Pidgeon v. Burslem is precisely in point. It is consistent with the pleas that the defendant requested the plaintiff to pay over the money for him to a third party, and that in fact it was so paid; in which case the defendant has no defence. PLATT, B., and MARTIN, B., concurred. Judgment for the plaintiff. (a) 4 Taunt. 165. (b) 10 Bing. 107. (c) 3 T. R. 418. 1854. SEMPLE v. H. CORNEWALL. Dec. 5 tion stated, that, in consideration the plaintiff would dis count the joint and pro- for 700l., paya- months after defendant and one H. S., the THE declaration stated, that, in consideration the plaintiff A declarawould discount the joint and several promissory note of the defendant and one H. I. H. Cornewall for 700l., and dated 9th day of July, 1853, and payable three months after date to the plaintiff or his order, the defendant and the said H. I. H. Cornewall jointly and severally promised the plaintiff, in the event of the said note not being paid at maturity, to pay to the plaintiff interest on the amount thereof at the rate of 18. in the pound per month, payable monthly in advance, the first payment to made on the 12th of October, 1853, should the said note not be then paid; and that although the said note came to maturity on the said of October and was not paid at maturity, and no thereof was paid before or on the day on which in event of such nonpayment the sixth monthly payment interest in advance became payable according to the promise, and the whole of the amount of the said remained unpaid on and after the last-mentioned which elapsed before this action, and although the plaintiff the plaintiff 12th defendant proplaintiff, in the mised the event of the note not being part paid at ma the turity, to pay him interest on the amount of of the note, at said in the pound the rate of 18. note per month: The declara day, tion then alleged, that did then dis count the said note, and that it was not paid at maturity, and still remained unpaid, and laid as a breach the non-payment by the defendant of certain of the monthly instalments. Plea that it was corruptly agreed between the plaintiff, the defendant, and H. S., that the plaintiff should discount the note, and as the proceeds of such discounting, advance to the defendant 595l. only, and that the plaintiff should receive for such advance the amount of the note on its arriving at maturity, and that the plaintiff should give further day of payment of the amount of the note for an indefinite period, to commence when the note should become due; and that, for the forbearing of payment of the sum of 5951., the defendant should pay the plaintiff 105l., being the difference between 700%, and 595l., three months after the advance, and for the forbearing of payment on the sum of 7001. so made up, such sum of 1s. in the pound per month, on the sum of 7007., payable monthly, as in the declaration mentioned. The plea then alleged, that, to secure the said loan and interest thereon, the defendant agreed to confess, and did confess, a judgment against himself to the plaintiff for 1400l., and that the said judgment was duly registered in the Court of Common Pleas, in the mode provided for by the statute in order to affect the lands, tenements, and hereditaments of the defendant:-Held, that the plea was bad, the agreement relied upon not being usurious; and that, as the transaction was based on a promissory note, the whole transaction was rendered legal by the 3 & 4 Will. 4, c. 98, s. 7. 1854. SEMPLE v. CORNEWALL, did, in a reasonable time after the making of the defendant's and the said H. I. H. Cornewall's said promise, and before the said note became due, discount the said note and did all things necessary to entitle himself to be paid interest according to the said promise: yet the defendant has not nor has the said H. I. H. Cornewall paid 140l., being the amount of the 3rd, 4th, 5th, and 6th monthly payments which became payable before this suit. Plea-That the said agreement was made by and between the plaintiff and the defendant corruptly and against the form of the statute in such case made and provided, in this, to wit, that by such agreement it was and is agreed by and between the parties aforesaid, that the plaintiff should on the 9th of July, 1853, discount the said note for 7001., and as the proceeds of such discounting, lend and advance to the defendant a certain sum of money, to wit, 5951. and no more, and should receive for such advance the amount of the said note three months afterwards, when the same became due and payable, to wit, on the 12th of October, 1853; and that the plaintiff should further forbear and give day of payment of the said sum of 700l. for an indefinite period of time to commence from such 12th day of October, 1853; and that, for the forbearing and giving such day of payment on the said sum of 595l., the defendant should pay to the plaintiff the sum of 105l., being the difference between 700l. and 595l., in three months after the said advance, and for the forbearing and giving day of payment on the said sum of 7001. so made up as aforesaid, such sum of 18. in the pound per month on the said sum of 7007., payable monthly as in the declaration mentioned; and that, to secure the said loan and interest thereon, the defendant should confess a judgment against himself to the plaintiff, for the amount of 1,400l., in the Court of Exchequer, at Westminster, a memorandum or minute of which said judgment, containing the name and usual place of abode and the title or profes sion of the defendant, together with all other such matters and things as were and are, by the statute in such case made and provided, required, in order to affect the lands, tenements, and hereditaments of the defendant, should be left with the senior Master of the Court of Common Pleas, at Westminster, in order that, by such means, the plaintiff should have and hold a security for the said advance and interest on the lands, tenements, and hereditaments of the defendant.—The plea then alleged, that the agreement therein mentioned was forthwith carried into effect by the plaintiff and the defendant in all respects; and that the defendant did then confess such judgment to the plaintiff as aforesaid; and that the plaintiff did then forthwith sign such judgment as aforesaid against the defendant, and did leave such memorandum, as aforesaid, of the judgment with the said Master of the Court of Common Pleas, at Westminster, and thereby the defendant's lands, tenements, and hereditaments became and were affected thereby, according to the form and effect of the statute in such case made and provided; and the plaintiff thereby then had and obtained a security on the defendant's lands, tenements, and hereditaments for the said loan and interest, which lands, tenements, and hereditaments of the defendant, in England, so affected and charged by such memorandum, as aforesaid, were then amply sufficient in value to satisfy such charge and lien; and further, that the said sum of 1051. for the forbearance of the said sum of 5951. for the said period of three months, as aforesaid, and also the said sum of 18. in the pound per month, so agreed to be paid by the defendant to the plaintiff, as aforesaid, for such loan and forbearance of the said sum of 700l., so made up as aforesaid, do, and each of them doth, exceed the rate of 5l. for the forbearing of 100%. for a year, contrary to the statute in such case &c. VOL. X. SS EXCH. 1854. SEMPLE v. CORNEWALL. |