Clack v Sainsbury
| Jurisdiction | England & Wales |
| Judgment Date | 20 November 1851 |
| Date | 20 November 1851 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 648
IN THE COURT OF COMMON PLEAS
clack v. sainsbury. Nov. 20, 1851. The 7th section of the statute 3 & 4 W. 4, c. 98,-which exempted from the opera tion of the usury laws bills and notes made payable at or within thr"ee months aftei date, or not having more than three months to run,-is not repealed by the subse quent statutes 7 W. 4 & 1 Viet. c. 80, and 2 & 3 Viet. c. 37, which extended the exemption to bills and notes made payable at or within twelve months after date or not having more than twelve months to run, and to contracts for the loan 01 forbearance of money above 101.,-with a proviso, that nothing in the last-mentionec act contained "shall extend to the loan or forbearance of any money upon the security of any lands, tenements, or hereditaments, or any estate or interesi therein."-Where, therefore, in an action upon a bill payable two months aftei date, the defendant pleaded that the bill was given in pursuance of a corrupt agreement for a loan of money upon usurious interest, and the plaintiff replied that the transaction took place after the passing and coming into operation of the 3 & 4 W. 4, c. 98, s. 7 :-Held, that the replication was a good answer to the plea; and that the effect of the replication was not avoided by a rejoinder that the transaction took place after the passing and coming into operation of the statutes oi Victoria. This was an action of assumpsit on a bill of exchange for 401., drawn by the defendant on the 15th of November, 1850, upon, and accepted by, one Charles Bromley, payable two months after date; with counts [696] for money lent, and money found due upon an account stated. The defendant pleaded, that, theretofore, to wit, on the 13th of September, 1850, it was corruptly, and against the form of the statute in such case made and provided, agreed by and between the said Charles Bromley and the plaintiff, that he, the plaintiff, should then, to wit, on the day and year last aforesaid, lend and advance to the said Charles Bromley a certain sum of money, to wit, the sum of 371., and that the plaintif) should forbear and give day of payment thereof to the said Charles Bromley from the day and year last aforesaid until and upon a certain day, to wit, the 15th of November, 1850, and that, for the loan of the said sum of 371., and for giving day of payment I1C.B.697. CLACK V, SAINSBITBY 649 thereof as aforesaid, the said Charles Bromley should give and pay to the plaintiff, on the said 15th of November, 1850, more than lawful interest at and after the rate of 51. per cent, per annum on the said sum of 371., that is to say, the sum of 31., making, together with the said sum of 371. so to be lent and advanced as aforesaid, the sum of 401., and that, for securing such payment to the plaintiff of the said sum of 401, the said Charles Bromley should then, to wit, on the said 13th of September, 1850, deliver" to the plaintiff a certain bill of exchange, bearing date the 12th of September, 1850, and to be drawn by the defendant upon, and accepted by, the said Charles Bromley, for the payment to the order of the defendant of 401. two months after the date thereof, and indorsed by the defendant in blank : That the plaintiff, in pursuance of the said corrupt and unlawful agreement, did then, to wit, on the 13th of September, 1850, lend and advance the said sum of 371. to the said Charles Bromley, on the terms aforesaid, and the said Charles Bromley in pursuance of the said corrupt and unlawful agreement, and upon the terms thereof, and for the purpose in that behalf aforesaid, did thereupon then, to wit, [697] on the 13th of September, 1850, deliver to the plaintiff such bill of exchange as last aforesaid; and thereupon the plaintiff then took and received the said last-mentioned bill of exchange in pursuance of the said corrupt and unlawful agreement, and on the terms thereof, and for the purpose of securing the said re-payment to the plaintiff of the said sum of 371. so lent and advanced by him as aforesaid, and the said payment of the said sum of 31. for such interest as aforesaid, which interest exceeds the rate of 51. for the forbearing of 1001. for a year, contrary to the form of the statute in such case made and provided: That afterwards, and when the said last-mentioned bill of exchange was due and payable according to the tenor and effect thereof, to wit, on the 15th of November, 1850, it was agreed by and between and amongst the plaintiff and the defendant and the said Charles Bromley, that, in consideration of a certain sum of money, to wit, the sum of 31., to be paid by the said Charles Bromley to the plaintiff, further time should be given by the plaintiff for the payment to him of the said sum of 401. in the last-mentioned bill of exchange specified, to wit, until the 18th of January, 1851, and that, for securing payment thereof as last aforesaid, the defendant should make his other bill of exchange in writing, directed to the said Charles Bromley, whereby the defendant should require the said Charles Bromley to pay to his the defendant's order the said sum of 401., two months after date- thereof, and that the said Charles Bromley should accept the said last-mentioned bill of exchange, and that the defendant should indorse and deliver the same to the plaintiff,' and that the said last-mentioned bill should be taken' and received by the plaintiff in renewal of and substitution for the said bill of exchange in that plea first mentioned : That afterwards, to wit, on the day and year last aforesaid, in pursuance of the said last-mentioned agreement, he the defendant did make, and [698] the said Charles Bromley did then accept, such bill of exchange as in that behalf aforesaid, and the defendant did then indorse and deliver the same to the plaintiff, who did thereupon then, and in pursuance of the said last-mentioned agreement, take and receive the same in renewal of and substitution for the said bill of exchange in that plea first mentioned, and for the purpose of securing re-payment to him, as in that behalf aforesaid, of the said sum of 371. so lent and advanced by him to the said Charles Bromley upon such corrupt and unlawful agreement as aforesaid, and the payment of the said first-mentioned sum of 31.- for such interest as aforesaid, -which said bill of exchange in that plea secondly mentioned was and is the said bill of exchange in the said first count mentioned : That there never was any other consideration, except as in that plea aforesaid, for the said indorsement and delivery by the defendant to the plaintiff of the said last-mentioned bill of exchange, or for the plaintiff being the holder thereof; and that the plaintiff had always held and now holds the same for and upon such consideration as in that behalf aforesaid, and not for or upon any other consideration whatsoever,--verification. To this plea the plaintiff replied, that each of the said contracts and bills of exchange in the'said second plea mentioned, was made and entered into, and drawn, and accepted, and indorsed, respectively, and the said several matters and things therein mentioned occurred and took place, as in the said plea respectively alleged, after the coming into operation of a certain statute made and passed in a session of parliament held in the third and fourth years of William the Fourth, intituled " An act for giving to the corporation of the Governor and Company of the Bank of England certain privileges for a limited period," and while th provisions of the same C. P. xvi.-21* 650 CLACK. V. SAINSBUEY 11 C. B. 699 statute were and remained...
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