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It has, however, been holden, that laying above ten pounds on a horse race is an illegal bet within the statute of Anne, on the ground that the statute ought to be extended to all sports as well as games, in order to prevent excessive betting (k) And it has been determined, that a wager of ten pounds to five pounds upon a horse race is within this statutej although the race was for a legal plate.(1) Cricket also, it seems, is an unlawful game within this statute.(m) It has been determined also, that if two persons play at cards from Monday evening to Tuesday evening, without any interruption, except for an hour or two at dinner, and one of them win a balance of seventeen guineas, this is won at one sitting within the statute.(11)

It seems that if a loser prefer an indictment against a winner on this statute of Anne, and the grand jury find the bill, the court

will not permit an information to be filed against the defendant, A., although the indictment was quashed, and, of course, the defend

ant never tried upon it; for the grand jury may find another bill for the same offence.(0)

It is also settled, that if a defendant be convicted on an information on this statute, the court can only give judgment quod convictus est, and cannot set a fine on the offender of five times the value, but that an action must be brought on the judgment to recover the penalty.(p) Upon the ground that the judgment of the court is only quod convictus est, and is to be the foundation of an action to recover the penalty, it was urged in a recent case, that it is necessary to prove the sum precisely as laid in the in

dictment: but Lord Ellenborough, C. J. was of opinion that alos obszatitthough, if the prosecutor had averred in the indictment that the

defendants had won any bills of exchange of a specified amount, the allegation must have been proved as laid; yet that since the sum only was averred, and that under a videlicet, the prosecutor was entitled to prove the winning of a smaller sum.(a)

(Ic) i Hawk. P.C. c. 92. s. 52. Good- or 18 Geo. 2. c. 34. which relate to buro v. Marley, 2 Str. 1159. Blaxton bona fide horse-racing only. Whaley v. Pye, 2 Wils. 309. And it has been v. Pajot, 2 Bos. and Pul. 51. And it holden, that a wager on a horse race was ruled that no action can be mainfor less than 501. cannot be recovered tained on a wager on a cock-fight. in an action: the 13 Geo. 2. c. 19. s. 2. Squires v. Whisken, 3 Campb. 140, having prohibited such races. John- And see as to the offence of keeping son v. Band, 4 T. R. 1. and see Bid- a cock-pit, ante, 300. mead a. Gale, 4 Burr. 2432. And that (1) Clayton v. Jenpings, 2 Blac, R. a wager, though for more than 501. 706. that the plaintiff could perform a cer- (m) Jeffreys v. Walter, 1 Wils. 220. tain journey in a post-chaise and pair (n) Bones v. Booth, 2 Blac. R. 1226. of borses in a given time, cannot be 10) I Hawk. P. C. c. 92. s. 56. Anon. so recovered. Ximenes v. Jaques, 6 8 Mod. 187. T. R. 499. Nor a like wager, that a (p) Rex v. Lookap, 2 Str. 1048. siogle horse should go from A. to B. The defendant was accordingly dison the high road sooner thau one of charged without any fine or costs. two other horses to be placed at any (9) Rex v. Hill, Darley and others, distance their owrier should please; 1 Starkie R. 359. And see Rex v. these being transactions prohibited by Gilham, 6 T. R. 265. Rex v. Burdett, 16 Car. 1. c.7. s. 2. and 9 Aone, c. 14. Ld. Raym. 149. ante, 146. Rex v. and not legalized by 13 Geo. 2. c. 19. Baynes, 2 Ld. Raym. 1265. || ,

1. CHAPTER THE THIRTY-SEVENTH.

OF USURY AND ILLEGAL BROKERAGE.

Ir was anciently holden that the taking of any kind of considera- Usury a contion for the loan or forbearance of money was an offence of eccle- tract for ex

orbitant insiastical cognizance, punishable by severe censures and forfei- terest for the tures :(a) but this notion, which appears to have proceeded from a use of money. mistaken construction of some passages in the Mosaical law, (b) has long given way to the more reasonablc doctrine that there is nothing iinproper in taking a moderate interest for the use of money. Any large and immoderate consideration for such use has, however, been justly deemed prejudicial to the welfare of society'; and the contract to receive any such exorbitant increase is that which is now generally understood by the odious appellation of asury.

It seems that, at common law, no indictment for usury could be Offence at supported, unless it were of such an exorbitant kind as that taken common law. by the Jews. Accordingly, it is laid down in the books, that üsury, such as the Jews took, namely, forty per cent. per annum, or more, was an offence at common law; and that, upon conviction, the usurer forfeited his goods to the king, and his lands to the lord of the fee, but that no other usury was so prohibited.(c)

Different rates of interest have been established by different Offence by nations. In this country also they have been regulated by the statutes. Legislature; and have varied and decreased for two hundred years past, according as the quantity of specie in the kingdom has increased by accessions of trade, the introduction of paper credit, and other circumstances. By the statute 37 Hen. 8. c. 9. the rate of interest was fixed at 101. per cent. per annum, which the statute 13 Eliz. c. 8. confirmed; and ordained that all brokers should be guilty of a prominire who transacted any contracts for more, and that the securities themselves should be void. The statute 21 Jac. I. c. 17. reduced interest to eight per cent.; and it having

(a) I Hawk. P. C. c. 82, s. 4.

410. It is however stated that a very (6) Exod. c. 22. v, 25. Levit. c. 25. eminent harrister, in the year 1814, v. 36, 37. Deuter. c. 23. v. 19, 20.; advised that, in a case of clear and and see i Hawk. P. C. c. 82. s. 7.2 Blac. palpable usury, a party may be inCom. 455.

dicted at common law. 2 Chit. Crim. (c) 2 Roll. 800. 3 Inst. 151, 152. 6 L. 549, Dote (f) Com. Dig. C'sury, (A.) Anon. Hardr.

was rew, by the tract, the

tere

been lowered in 1650, during the usurpation, to six per cent., the same reduction was re-enacted after the restoration, by the 12 Car. 2. c. 13.; and now, by the statute 12 Ann. st. 2. c. 16. it is reduced to five per cent. A contract, therefore, to take more than five per cent. is at this time usurious, and by the statute of Anne totally void; besides which, the lender is made liable to the for

feiture of treble the money borrowed. 12 Ann. st. 2. This statute of Anne enacts, “ That no person or persons whatc. 16. s. 1.

“soever, upon any contract, take, directly or indirectly, for loan enacts that no person shall

“ of any monies, wares, merchandize, or other commodities whattake above 51. “ soever, above the value of five pounds for the forbearance of one per cent. in- " hundred pounds for a year, and so after that rate for a greater terest.

" or lesser sum, or for a longer or shorter time;" and that all And that all bonds, contracts, &c. whereby there shall be reserved or taken bonds, &c. for above the rate of five pounds in the hundred, as aforesaid, shall be a greater in

shall be utterly void ; “ and that all and every person or persons whatvoid.

" soever, which shall, upon any contract, take, accept, and reAnd that per- " ceive, by way or means of any corrupt bargain, loan, exchange, sons taking “chevizance, shift, or interest of any wares, merchandizes, or above 51. for the forbear

“other thing or things whatsoever, or by any deceitful way or ance of 1001. " means, or by any covin, engine, or deceitful conveyance, for the for a year shall « forbearing or giving day of payment for one whole year, of and forfeit treble the value of

" for their money or other thing, above the sum of five pounds the monies, “ for the forbearing of one hundred pounds for a year, and so after &c.

" that rate for a greater or lesser sum, or for a longer or shorter - term, shall forfeit and lose for every such offence the treble 6 value of the monies, wares, merchandizes, and other things so

“ lent, bargained, exchanged, or shifted.” S.2 enacts. The second section of this statute further enacts, “ that all and that no scri

6 every scrivener and scriveners, broker and brokers, solicitor and vener, &c. shall lake “ solictors, driver and drivers of bargains and contracts, who shall above 5s. for “ take or receive, directly or indirectly, any sum or sums of 1001. for a

« money, or other reward or thing for brokage, soliciting, driving, year for brokage, &c.; nor " or procuring the loan, or forbearing of any sum or sums of above 12d. 6 money, over and above the rate or value of five shillings for the

stamploan or forbearing of one hundred pounds for a year, and so duties for making or re- “ rateably, or above twel ve pence, over and above the stamp newing any “duties, for making or renewing of the bond or bill for loan, or

“ forbearing thereof, or for any counterbond or bill concerning penalty of 201. and costs and the same, shall forfeit for every such offence twenty pounds, imprisonment" with costs of suit, and suffer imprisonment for half a year; the

“ one moiety of all which forfeitures to be to the queen's most ex“ cellent majesty, her heirs and successors, and the other nioiety “ to him or them that will sue for the same in the same county " where the several offences are committed, and not elsewhere, by ci action of debt, bill, plaint, or information, in which no essoign,

as wager of law, or protection, shall be allowed.” As to an in- The provisions of the 12 Car. 2. c. 13. were similar to those of dictment be

the statute of Anne, which have been just cited, except that the ing sustain

rate of interest was fixed by them at six per cent; and it is reable upon this statute.

ported to have been decided that no indictment would lie upon the statute of Car. 2., and that it was necessary for the party prosecuting to sue for the penalties in a penal action; as being the

an indict

method of proceeding prescribed by the statutc.(d) But upon the principles which have been stated in a former part of this Work, as to an indictment being sustainable where there is a general prohibitory clause in a statute, though there be afterwards a particular provision and a particular remedy given, it should seem that an indictment will lie upon the statute where an usurious transaction has been carried into effect.(e) An indictment for usury has not, however, been a frequent mode of proceeding, as the party prosecuting has, in general, been contented to sue for the heavy penalties given by the statute: and it is clear that an indictment cannot be maintained for a corrupt agreement only; as where such an agreement was stated in an indictment for usury, without any loan, or taking excessive interest in pursuance of it, judgment was arrested. (f)

It was holden, that justices of the peace at their quarter ses- Justices of sions had no jurisdiction upon an indictment on the statute of 12 peace have no

statute of jurisdiction Car. 2. (9) And with respect to an information on the statute of 12 Anne, it has been holden that the court of King's Bench will ment for not grant it after the time has elapsed within which the common usury. informer should institute his proceedings; on the ground that As to an in

one formation by where a penalty has vested in the crown only, the court have not

the court of power to grant an information, but must leave it to the attorney- K.B. general to file one if he shall think proper.()

It is said that an indictment for usury, (supposing it to be sus- Form of intainable,) must contain all the requisites of a declaration for dictment. usury.(i)

If the transaction were effected by means of some device, or Evidence. colourable pretence, it must be left to the jury to say whether the sum taken, though ostensibly for another purpose, was not in reality taken as usurious interest.(k)

The statute 53 Geo. 3. c. 141. repeals the 17 Geo. 3. c. 26. 53 Geo. 3. c. except as to annuities or rent charges granted before the passing 141. Endeaof the act; and after providing for the due enrolment of the deeds, o

us, duce infants (i) Reg. v. Dye, (7 Anne,) 11 Mod. In an action for usury, the averment 174. The case is very shortly reported, of the quantum of the excess taken is and docs not state upon which section material. But some of the reasons of the statute the question was raised: for that accuracy, namely, that the but the editor of the Reports, (ed. penalty is apportioned to the value, 1796.) has cited many authorities in and that the judgment depends upon support of the decision, as to the ap- the quantum taken, do not apply to

bility of some of which qu. Reg. the proceeding by indictment. It may, 1. Dye is however cited as law in 7 however, be said, on the other hand, Bac. Abr. Usury, (I).

that, as the contract must be set forth (e) Ante, 47. ei sequ. And see 2 Chit. in the indictment, the general rule of Crim. L. 549, note (f).

pleading will apply; namely, that in (f) Rex r. Upton, 2 Str. 816. setting forth a contract it is necessary

(g) Reg. v. Smith, (4 Anre,) 2 Salk. to set it forth correctly, and prove it 680. 2 LỖ. Raym.1144. S. C.

as set forth. (h) Rex t. Hendricks, 2 Str. 1234. (k) Per Grose, J. in Rex v. Gillbam, By the 31 Eliz, c. 5. s. 5. the common 6 T. R. 268. See further as to the informer is limited to a year after the points decided concerning usury, and offence committed; and, if no such the proceedings for the recovery of suit is brought within a year, then the the penalties, i Hawk. P. C. c. 82. crown may sue at any time within 6 Coin. Dig. Usury. 7 Bac. Abr. Usury. two years after the end of the first 2 Blac. Com. 455. et sequ. 4 Blac. year.

Com. 156, 157. (i) 2 Chit. Crim. L. 549. pote (F).

in

to grant an

gre

der

crea

1 the ten

bein and

mon

and C. the Fice but

66

&c. whereby any annuity or rent charge shall be granted, makes nuities a mis- all contracts for the purchase of any annuity or rent-charge, with

any person being under the age of twenty-one years utterly void;
and then enacts (s. 8.) “ that if any person shall either in person,

or by letter, agent, or otherwise howsoever, procure, engage,
sa solicit, or ask, any person being under the age of twenty-one

years, to grant or attempt to grant any annuity or rent-charge,

or to execute any bond, deed, or other instrument for securing “ the same, or shall advance or procure, or treat for any money “ to be advanced to any person under the age of twenty-one years,

upon consideration of any annuity or rent-charge to be secured

or granted by such infant, after he or she shall have attained “his or her age of twenty-one years; or shall induce, solicit, or

procure, any infant, upon any treaty or transaction for money “advanced or to be advanced, to make oath, or to give his or her “ word of honour or solemn promise, that he or she will not plead

infancy, or make any other defence against the demand of any “ such annuity or rent-charge, or the repayment of the money “advanced to him or her when under age, or that when he or she

comes of age, he or she will confirm or ratify, or in any way “ substantiate such annuity or rent-charge, every such person “shall be guilty of a misdemeanor; and being thereof lawfully con“victed in any court of assize, oyer and terminer, or general gaol

court ther

ant sum

delivery, shall and may be punished for the said offence by fine,
iinprisonment, or other corporal punishment, as the court shall

" think fit to award."
Acting as soli The 9th section enacts “that all and every solicitors and
citors, &c. in

“ solicitor, scriveners and scrivener, brokers and broker, and other

persons or person, who shall ask, demand, accept, or receive, “ directly or indirectly, any sum or sums of money, or any

other “ kind of gratuity or reward, for the soliciting or procuring the “ loan, and for the brokerage of any money that shall be actually “ and bona fide advanced and paid as and for the price or consi“ deration of any such annuity or rent charge, over and above the

sum of ten shillings for every one hundred pounds so actually “ and bona fide advanced and paid, shall be deemed and adjudged “ guilty of a misdemeanor; and being lawfully convicted of such « offence in any court of assize, oyer and terminer, or general “ gaol delivery, shall and may for every such offence, be punished

“ by fine and imprisonment, or one of them, at the discretion of Competency “ the court; and that the person or persons who shall have paid

or given any sum or sums of money, gratuity or reward, shall “ be deemed a competent witness or witnesses, to prove the

This act is not to extend to Scotland or Ireland, nor to any annuity or rent-charge given by will or by marriage settlement,

or for the advancement of a child, nor secured upon freehold or granted by copyhold, or customary lands, of equal or greater annual value

than the said annuity, (over and above any other annuity, and the
interest of any principal sum charged or secured thereon, of which
the grantee had notice at the time of the grant) whereof the
grantor is seised in fee simple or fee tail in possession, or the fee
simple whereof in possession the grantor is enabled to charge at

such cases
misdemeanor.

and al

of witnesses.

« same.”

Proviso for
Scotland or
Ireland, and
annuities

will, &c.

Thy

« EelmineJätka »