Richard Kirkman Lane, - Appellant; J. J. Horlock, S. Rew, and Q. Rew, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 10 March 1856 |
| Date | 10 March 1856 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1028
House of Lords
Mews' Dig. i. 360, 1014; xiv. 1078, 1808, 1825. S.C. 25 L.J.Ch. 253; 2 Jur. N.S. 289; 4 W.R. 408. The usury laws were repealed in 1854 (17 and 18 Vict. c. 90). But see now the Money-Lenders Act, 1900 (63 and 64 Vict. c. 51.
Usury - Security on Lands.
V H.L.C., B81 LANE V. HORLOCK [1856] RICHARD KIRKMAN LANE,-Appellant'; J. J. HORLOCK, S. REW, and Q. REW,- Respondents [February 11, 12, 14; March 4, 10, 1856]. [Mews' Dig. i. 360, 1014; xiv. 1078, 1808, 1825. S.C. 25 L.J.Ch. 253; 2 Jur. N.S. 289 ; 4 W.R. 408. The usury laws were repealed in 1854 (17 and 18 Viet, c. 90). But see now the Money-Lenders Act, 1900 (63 and 64 Viet. c. 51.] Usury-Security on Lands. Where money is advanced at usurious interest on the security) of Bills of Exchange, having only three months to run, such advance is protected, and the Bills themselves are valid under the 3 and 4 Will. 4, c. 98, s. 7, and though a warrant of attorney to confess judgment may be taken at the same moment, on which judgment is the next day entered up and registered under 1 and 2 Viet. c. 110, so as to become a charge on the lands of the debtor, the transaction is not thereby rendered invalid under the proviso of the 1st section of the 2 and 3 Viet. c. 37. The 2 and 3 Viet. c. 37, does not repeal the 3 and 4 Will. 4, c. 98. Semble that a warrant of attorney to confess judgment, though by such judgment the lands of the debtor may be charged, is not a charge upon land. H. had received from L. money advanced on the security of bills of exchange. In October 1843, he wanted a further advance, which L., after inquiring into the value of his real estate, consented to make, on condition that three months' bills should be given for the amount (usurious interest included), and that a warrant of attorney to confess judgment, which L. should be at liberty to enter up immediately, should also be executed. All this was done, and judgment was entered up on the following day, and the judgment registered. The bills given in October 1843 were not paid when they became due in January 1844, and others were then substituted [581] for them. These last were also* dishonoured. A sale of H.'s estate took place, under a mortgage, executed to a prior creditor, who' received more than would satisfy his claim: Held, that L. was entitled to maintain a bill against him to pay over so much of the surplus in his hands as would satisfy L.'s judgment. This House does not reform a decree of the Court below. This was an appeal against a decree of Vice-Chancellor Kindersley, dismissing with costs a bill filed by the Appellant. In the year 1843 Horlock, then the owner of an estate called the Rocks, in the parish of Marshfield, in the county of Gloucester (but which estate was heavily mortgaged), was introduced by Foster, his then solicitor, to Lane, for the purpose of having two bills of exchange discounted, both payable at three months after date, one for the sum of £298 10s., the other for £225 6s. 6d. The first of these bills was dishonoured when it became due; the interest on it was regularly paid up. Before the second of them was at maturity, namely, in October 1843, Horlock required a further advance, and, through his solicitor, applied to Lane to let him have a sum of £800. Lane told Foster that if he made any further advance he must know the extent and rental of Horlock's estate, and the incumbrances upon it, and must be informed in writing what judgments there were against it, and also the exact amount he was required to lend, and further, that he must have not only bills of exchange for the amount then to' be lent, but also' a warrant of attorney, to secure the amount of both the bills which he then held, and of any bills which he might afterwards discount, not to exceed in the whole a definite sum; and must be at liberty immediately to enter up and register a judgment on this warrant of attorney. The information was furnished on 25 October 1843, and there appeared to be [582] certain mortgages on the estate, but no unsatisfied judgments. On the same day Horlock went to Lane, who produced a cash account, debiting Horlock with the sum of £1528 7s. 6d., made up of the £800 then to be advanced, and three months' interest thereon, at the rate of 60 per cent, per annum; also the two bills then in Lane's hands, and interest at the same rate, and the expense of the warrant of attorney and the stamps; but Horlock was allowed £4 as a rebate of 1028 LANE V. HORLOCK [1856] V H.L.C.. 683 interest on the bill for £255 6s. 6d., which would not be due till the following llth November. This account Horlock signed, and Lane then advanced £800, and Hor-lock accepted three bills for the whole amount thus agreed to be due. At the same time Horlock executed a warrant of attorney to confess judgment against him in, the Court of Queen's Bench in a sum of £4000, with a defeasance declaring that it was to secure payment of " every sum not exceeding £2000, which may at any time hereafter be due to Lane upon any bills or notes which shall be made, drawn, or accepted by Horlock, and be discounted for him, or for his use, by Lane." On the 27th October, Lane entered up judgment on the warrant of attorney, and registered it, so as to make it under the 1 and 2 Viet., c. 110, s. 13, a charge on real estate. The three bills became due on the 28th January 1844, but on the 26th January three fresh bills were drawn to replace them; these new bills being given for the whole amount then due, namely, £1754 14s. 6d., the interest being carried on at the same rate as before. The three renewed bills became due on the 29th April, but were not paid. On the 1st June 1844 Horlock accepted a bill for £175 12s. 6d., and on the 4th July 1844 he accepted another for £351 6s. 6d., each being for the interest [583] alone. The aggregate of the five bills amounted to £2281 13s. 6d. None of these bills was paid. A person named Quincey (now represented by the Hews), was entitled to a mortgage on the Bocks Estate for £2000. There were several other and prior mortgages, but Quincey's claim preceded that of Lane. In 1846 a rule was obtained by Horlock in the Court of Queen's Bench, calling on Lane to show cause why the warrant of attorney and all the subsequent proceedings should not be set aside, on the ground that the transaction waa one of usury, and the security was one upon lands, within the 2 and 3 Viet., c. 37, s. 1. The case was argued before Mr. Justice Wightman, who, adopting a previous decision of the Court of Queen's Bench, in Withey v. Gttliard (23 Legal Observer, 237), discharged the rule (4 Dowl. and L. 408). On the 14th October 1847 the Appellant issued the usual writ of elegit on the judgment, and on the 5th October 1848 re-registered the judgment, pursuant to the 2 Viet., c. 11, s. 4. In the summer of that year an attempt had been made to sell the Rock Estate on the demand of Quincey, but no sale was effected. In November 1848 it was sold to Mr. Serjeant Wraiigham for a sum of £38,963. The incumbrances prior to Quincey's mortgages amounted in the aggregate to £33,377 18s. lid. The balance was paid to Quincey, who, after satisfying his own mortgage, held in his own hands a balance of £3495 Is. 2d. Lane claimed this balance in discharge of his own demand, but as payment to him was resisted, he, in September 1849, filed his bill in the Court of Chancery, stating the matters above set forth, and praying that he might be declared entitled to a lien in respect of his judgment upon the balance of the purchase-money, etc. The answer to the claim was, that the transaction was invalid, as being one in which an advance [584] of money had been made on the security of land, and therefore contrary to the proviso in 2 and 3 Viet., c. 37, s. 1.* Evidence was gone into on both sides, and the cause came on for hearing before Vice-Chancellor Kindersley, who on the 9th July 1853 made a decree dismissing the Plaintiff's bill with costs (1 Drewry, 587, where the bill is fully set forth). Mr. Loftus Wigram and Mr. Wordsworth (Mr. Flather was with them) for the Appellants.-It may be admitted that as soon as the judgment signed on this warrant * The 2 and 3 Viet., c. 37, s. 1, declares that Bills of Exchange, not having 12 months to run, and contracts for the loan or forbearance of money above £10, are not to be affected by the usury laws, " Provided always that nothing herein contained shall extend to the loan or forbearance of any money upon security of any lands, tenements or hereditaments, or any estate or interest therein." The 3 and 4 Will. 4, c. 98, s. 7 (the Bank Charter Act of 1833), had previously declared, " That no' bill of exchange or promissory note made payable at or within three months after the date thereof, or not having more than three months to run, shall, by reason of any interest taken thereon, or secured thereby, on any agreement to pay or receive or allow interest in discounting, negociating, or transferring the same, be void," nor the liability of the parties thereto be affected, nor any party be subject to penalties under any law relating to usury. The 1 and 2 Viet. c. 110, ss. 13 and 19, gives to a judgment which has been registered the effect of a charge on the real estate. 1029 V H.L.C., 586 LANE V. HORLOCK [1856] of attorney was registered, there was a charge upon the lands. But the giving of the warrant of attorney was not creating a charge upon lands, so as to render these securities void. The original transaction was merely one of discount of bills, and in such a transaction it does not matte? whether a payment is made in cash or in new...
To continue reading
Request your trial
-
Penny v Avison
...Mr. F. Bacon, and Mr. Long, for other parties. Mr. Bolt, Q.C., in reply. As to the effect of the warrant of attorney, Lane v. Horlock (5 H. L. Cas. 580) is a further authority for our contention. With respect to the income of the mortgages, it is clearly land under the 13th section, and thi......
-
Faithful Croft v Benjamin Lumley
...the 2 and 3 Viet. c. 37, s. 1, justify this construction of the earlier statute. Both statutes were fully considered in Lane v. Horlock (5 H. L. Cas. 580), where the opinions of Mr. Justice Wightman (4 Dowl. and Low. 408), and of Vice-Chancellor Kindersley (1 Drewry, 587), in previous stage......
-
Langton v Haynes
...the security on the land The Lords Justices in Er pcnte fremington (3 De tlex, McN & G. 159). and the Lord Chancellor in Lane v. Horlock (5 H. L. C 580), have severally expressed their opinion that advances made on bills of exchange, not having more than twelve months to run, are within the......
-
Gore v Spotten
...GORE and SPOTTEN. Bond v. Bell 3 Jur., N. S. 1290. Lane v. HarlockENR 1 Drew, 587; S. C., on Appeal, 5 H. L. Cas. 580. Sawyer v. Maguire 7 Ir. Law Rep. 373. Ex parte WarirngtonUNK 3 De G., M;N & G. 159; S. C. 17 Jur. 430. Bond v. Bell 3 Jur., N. S. 1290. 508 CHANCERY REPORTS. 1858. Chancery......