SECTION III. Of amendment in a penal action for usury. While all is in paper, an amendment may be made at common law, as well in penal as in civil actions; but the permission to amend is entirely in the discretion of the court. In a declaration in a qui tam action for usury, the court granted leave to amend by altering the date of the note, all being in paper.' So the Court of King's Bench amended a misnomer of the defendant's christian name in a penal action.* So after the record had been made up, and carried down to trial, and withdrawn by the plaintiff, the court granted leave to amend as to the sum lent.3 And in another case, after the record was withdrawn, the defendant had leave to amend by altering the venue.* And the court will grant leave to amend, even after the time limited for bringing a new action has expired, provided the plaintiff has not been guilty of any unnecessary delay in prosecuting his suit, and the amendment does not introduce any new substantive cause of action.5 But the amendment in the declaration will not be permitted where there has been any delay on the part of the plaintiff, even though the pleadings are still in paper." As where the action has been depending four years." Neither will the court, in a penal action, alter the term of which the declaration is entitled to a previous term, in order to bring it within the time limited for the action. Nor is there any instance in which the court has given leave to amend, as to the parties to the suit, in a penal action, after de murrer.9 1 Bonfield qui tam v. Milner, Burr. 1098. * Mertaer v. Hurst, B. R. Hill, 1815, cited 1 Marsh. Rep. 420. 3 Mace qui tam v. Lovett, Burr. 2833. • Tailleur qui tam v. Cocks, B. R. Tr. 1782, cited 6 Term Rep. 173. 5 Cross v. Kaye, 6 Term Rep. 543. Maddock qui tam v. Hammett, 7 Term Rep. 55. 6 Ranking qui tam v. Marsh, 8 Term Rep. 30. Steel qui tam v. Sowerby, 6 Term Rep. 171. 7 Goff qui tam v. Popplewell, 2 Term Rep. 707. Woodruff v. Williams, 1 Marsh. Rep. 419., * Per Buller, J. in Evans v. Stevens, 4 Term Rep. 228. But the court will amend the verdict by the judges' notes, if the jury, by mistaking the date of the instrument, create a variance for which the evidence affords no foundation; but not if any evidence has been given, by which it was competent for the jury to find as they may have done.2 SECTION IV. Of compounding and settling a penal action for usury. The prosecutor may, if the defendant consent, compound the ac-. tion on the statute 18 Eliz. c. 5; but such composition must be with the leave of the court, otherwise it is penal. But the court will in general grant this leave, even after verdict." 3 And where a rule has been obtained by the defendant for staying the proceedings on payment of part of the penalties, the court will grant an attachment against him for non-payment.5 The attorney general may enter a nolle prosequi on behalf of the crown; but he cannot enter it, except for the king's part of the penalty.R SECTION V. Of the evidence in a qui tam action. Supposing the action be not compounded, but regularly proceeded in, the next question will be, as to the evidence: Who will be a competent witness; and what will be sufficient proof to charge the defendant? Where an action qui tam is brought by a stranger, the borrower will be a competent witness to prove the usury, after the repayment of the money. And therefore to let in the borrower's evidence, it will be necessary to show that the money has been repaid. In one case, Chief Justice Lee refused to let the borrower him Manners qui tam v. Postan, 3 Bos. & Pul. 343. 2 Ibid. 345. Bland v. Featherstone, Barnes, 118, 3d edit. 4 Maugham qui tam v. Walker, 5 Term Rep. 98. 5 Hart qui tam v. Draper, 2 Marsh. 358; and King v. Clifton, 5 Term Rep. 257. Streton v. Taylor, Cro. Eliz. 138. 'Long's case, 1 Ventr. 191. Shank qui tam v. Payne, Str. 633. self prove the repayment; conceiving that, until the money was shown to have been repaid, he could be no witness at all. But since that case, the Court of King's Bench have held that the borrower is a competent witness to prove both the usurious contract and the repayment of the money, because they considered that the repayment itself established his competency and credit. And this decision has since been revised and confirmed in a case where an action had been brought to recover the penalties of the statute upon a loan and forbearance to one Bromer, who was called as a witness to prove the transaction. In addition to his being the borrower, it appeared that he was an uncertificated bankrupt; and although the sums laid in the declaration had been paid with the lawful interest, still he was largely indebted to the defendants on a running account for different loans, in which the sums declared on were included. Lord Kenyon suffered him to be a witness, thinking that the objection went to his credit, and not to his competency. And this opinion he afterwards confirmed on a motion for a new trial, the rest of the court concurring.3 2 So that, in addition to its being established that the borrower may prove the whole case, it seems that not even his being indebted to the defendants on a general balance will affect his competency, provided the particular sums in question have been paid. But in an action on the statute against the assignee of a bankrupt, for taking usurious interest on a loan of money to the bankrupt before his bankruptcy, the bankrupt is not a competent witness to prove the offence, if he has not obtained his certificate, or repaid the money; notwithstanding he is willing to give a release to his assignees of the benefit which may arise from the discharge of this debt in particular, and all claim to allowance or surplus in general; and notwithstanding the assignee has proved his demand for the money lent under the commission.1 As to what will be evidence against the defendant;-in an action for usury, in discounting a bill, where it was proved that one Brown demanded payment of the acceptor, and commenced an action against him in order to compel payment; in consequence of which a person on behalf of the acceptor, paid to Brown the amount of the bill, and the costs of the suit, on producing the bill, for which Brown gave a 49. 'Abraham qui tam v. Bunn; Burr. 2251; and see Parris's case, 1 Vent 2 Smith qui tam v. Prager, 2 Esp. N. P. C. 486. 37 Term Rep. 60 ; and see Bent v. Baker, 3 Term Rep. 27. * Masters qui tam v. Drayton, 2 Term Rep. 496. receipt as the attorney for the defendant; and no account was given how Brown came by the bill: it was holden that there was sufficient evidence to be left to a jury, that Brown acted as the defendant's agent, and consequently that the defendant had received usurious interest.1 As to the evidence for the defendant, it has been held, that where it had been proved that the defendant had taken from one Ubank £50, for the loan of £1000 for six months, it was not competent for the defendant to give in evidence an account in the handwriting of Ubank, wherein he admitted part of this £50 to have been paid on the balance of an old account.2 SECTION VI. Of the consequences of the trial of a penal action for usury. {If an information be brought against two, and only one be found guilty, there can be no judgment in this case.3 And usury shall not be intended, unless the jury find it expressly.1 But if, upon nil debet pleaded, the jury find an usurious receipt, and do not find any loan, a new' venire shall be awarded, and not a new nisi prius.5 If the prosecutor be nonsuited, this shall not prejudice the crown.6 And it is said, in Salked, that one in execution for usury cannot be bailed, though there be an error on the record, and though it was formerly the custom to bail in such a case; but that it is otherwise on an audita querela.” In an action qui tam for taking excessive usury, the declaration stated the taking to have been in pursuance of a loan of $200, by means of a promissory note, and the evidence was of a loan of $200, and the interest thereon for more than six months. Held, that this was a material variance. An amendment will not be allowed in an action qui tam to recover the penalty for an offence which at the 1 Owen qui tam v. Barrow, 1 New. Rep. 101. 2 Maugham qui tam v. Walker. Peake, N. P. C. 163. 5 Loveday's case, 8 Co. Rep. 130. time of making the motion is barred by the statute of limitations. Drake v. Watson, 4 Day, 37. In an action qui tam for usury, the plaintiff alleged a loan by the defendant to A for sixty-three days, and produced in evidence a note executed by A and B jointly and severally, payable to the defendant in sixty days: held to be a fatal variance. Wilmot v. Munner, 4 Day, 114. A conveyed to B land of the value of $1600, for the consideration of $300; B at the time agreeing to reconvey it upon payment of $522 97 at two instalments, the last within three years from the date of the contract; no part of the $522 97 were paid. It was held that B was not liable to a qui tam action for taking usurious interest. Thompson v. Moses, 7 Mass. 361. A receives B's note, payable at a day certain, and delivers him the amount secured by the note, deducting interest for the time the note had to run, at the rate of two per cent. per month on the $400. In an action by A on the note, the defendant had judgment on the ground that the contract sued was usurious. In an action for the penalty by the statute, it was holden that A was not liable. Simpson qui tam v. Warren, 15 Mass. 460. The act against usury, after fixing a penalty of three times the usurious loan, to be recovered by action of debt, limits the commencement of the action to six months after the offence committed. Defendant lent $100 on usurious interest, and received various sums on account of the loan, more than six months before action brought, and the balance of principal and usurious interest within six months. Held, that the plaintiff was entitled to recover three times the amount of the sum originally loaned. Stewart v. Fowler, Harper's R. 403. `A, being in want of money, applied to B, and it was agreed between them, that A should receive from B the note of one L, which he held, and give therefor to B a bond payable to S for the sum due on L's note, with fifteen per cent. A gave his bond accordingly to S, by whom it was endorsed to the brother of B, in whose name a suit was brought and judgment recovered, and the money was collected by an execution against A. Held, that A was guilty of usury, and that it was no defence for a lender of money on usury in an action qui tam, to say that he acted as another's agent, unless he disclose the agency at the time of contracting. Whether being particeps criminis, such disclosure at the time would avail him. Wilkes v. Coffie, 3 Hawks, 28. A sheriff who had collected money upon an execution, and had |