Washbourn v Burrows
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1847 |
| Date | 12 June 1847 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 45
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 5 D. & L. 105; 16 L. J. Ex. 266.
[107] washbourn v. burrows. June 12, 1847.-Covenant for payment of 250 ; and interest on demand. The defendant pleaded, that the covenant was entered into in pursuance of an usurious contract, by which the defendant agreed to pay more than 5 per cent, by way of interest, and that the payment was secured by a deed, whereby the defendant bargained and sold to the plaintiff", by way of security, certain personal chattels, and also " the crops of grass then i growing on certain lands."-Replication, that the contract was entered into after the passing of the 2 & 3 Viet. c. 37 :-Held, on general demurrer, that the plea was good, and the replication bad; for though the term " crops of growing grass " might mean crops to be severed by the owner of the soil, and delivered as a personal chattel, yet the plea afforded a good prima facie answer to the action, it being sufficient for the defendant to shew that the contract was usurious within : the 12 Anne, s. 2, c. 16; and if the plaintiff relied upon the 2 & 3 Viet. c. 37, as excepting the case from the operation of that act, he should reply, that the contract was entered into after the passing of the statute of Victoria, and that the security did not relate to land.-The defendant pleaded also a general plea of fraud, to which the plaintiff replied de injuria:-Held, a good replication.- ; Another plea set out a power of sale in default of payment of 2/50, and interest, and averred that, in pursuance thereof, the plaintiff sold and disposed of the goods, I chattel^, and effects, in the indenture mentioned, for the purpose of repaying, 1 satisfying, and discharging the 350, interest, and costs ; and the plaintiff, by ! means of such sale and disposal, had and received 500, being the proceeds and profits of the sale and disposal, and thereby and therewith repaid, satisfied, and ; discharged, the sum of 250, interest and costs. And the plaintiff, with the : consent of the defendant, received the said proceeds and profits of the sale and disposal, in full satisfaction of the said sum of 250, interest and damages.- ' Replication, that the plaintiff did not sell or dispose of the said several goods, i chattels, and effects, nor did the plaintiff, by means of such sale and disposal, ; have or receive the said monies, being the proceeds and profits of the said sale 1 and disposal, nor did the plaintiff thereby or therewith repay, satisfy, or dis-; charge the sum of 250, interest, &c., nor did the plaintiff accept or receive the ; said proceeds and profits of the sale and disposal in full satisfaction and discharge, ; modo et forma :-Held, on special demurrer, that the replication was not bad for duplicity. I [S. C. 5 D. & L. 105; 16 L. J. Ex. 266.] Covenant on an indenture for payment of 250, and interest, on demand, i The defendant pleaded (amongst other picas), thirdly, that, before the making of the indenture, it was corruptly and against the form of the statute agreed by and between the plaintiff, W. U. Cliffe, and the defendant, that the plaintiff shouldilend and advance to W. B. Cliffe and the defendant the sum of 200, and that the plaintiff should forbear and give day of payment thereof to the said W. B. Cliffe and the defendant nntil demand of repayment thereof by the plaintiff; and that, upon such demand of repayment thereof, W. B. Cliffe and the defendant should then, for the loan of the said sum of 200, and for giving the day of payment thereof, give 46 WASHBODRN V BURROWS 1 EX 108. and pay to the plaintiff more than lawful interest at and aftei the rate of 5 per cent per annum on the said sum of 200, that is to say, the sum of ."50, making, together with the sum of 200 so to lie lent and [108] advanced as afoiesaid, the sum of 250 in the said indenture mentioned , and also that W B Cliffe and the defendant should pay to the plaintiff mteie&t at the rate of 5 per cent pei annum on tho said sum of 250, fiom the 31st day of May, 18-15, until the payment of the sum of 250 in the said mdentute mentioned, and that foi seeming the payment of the said sum of 250, with inteiest thereon as afoiesaid, the said W B Cliffe and the defendant should make and seal, us their act and deed respectively, and deliver to the plaintiff a certain indentuie, whereby the said W. B Chtte and the defendant should severally covenant with the pl.itutiff to pay him on demand tho sum of 250, with inteiest thereon as afoiesaid, and should also batgain, sell, and assign to the plaintitt all the goods, chattels, plate, linen, &c, then in and about and belonging to the dwelling-house and...
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