county aforesaid, lent and advanced to one Richard Jones, the sum of £5, of lawful money of England, to be paid to the said Dorothy upon the 8th day of January from thence next following in the year abovesaid. And the same Dorothy Smith, afterwards, to wit, on the said 8th day of January, in the year abovesaid, at the parish aforesaid, in the county aforesaid, unjustly and corruptly received and had of the said Richard Jones, for deferring and giving day of payment of the said sum of £5, for the time aforesaid, twelve shillings and sixpence of lawful money of England, which said sum of 12s. 6d. by the said Dorothy so as aforesaid of the said Richard received and had for deferring and giving day of payment of the said sum of five pounds for the time aforesaid, exceedeth the sum of six pounds by the £100, for one whole year, contrary to the form of the statute in such case made and provided, and against the peace of the said lady the now queen, her crown and dignity; wherefore the sheriff of the county of Middlesex is commanded, that he do not omit, &c. but that he cause the said Dorothy Smith to come to answer, &c. Upon which afterwards, to wit, at the same general quarter-sessions of the peace of the said lady the queen, held for the county aforesaid at Hicks Hall aforesaid in the county aforesaid, on the said Friday the 12th day of January in the third year of the reign of the said lady the queen abovesaid, before the said justices of the said lady the queen and others, their fellows aforesaid, cometh the said Dorothy Smith in her proper person, and having heard the indictment aforesaid, the same Dorothy saith, that she is not guilty thereof, and of this she puts herself upon the country and Simon Harcourt, Esq., clerk of the peace of the county aforesaid, who prosecutes for the said lady the queen in this behalf, likewise &c. Therefore let a jury thereupon come before the justices of the said lady the queen, assigned to keep the peace in the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanours committed in the same county, and who, &c. to recognize, &c. because, &c. the same day is given as well to the said Simon Harcourt who prosecutes, &c. as to the said Dorothy Smith, here, &c. Whereupon at the next general sessions of the peace of the said lady the queen, holden for the county aforesaid at Hicks Hall aforesaid in Saint John Street aforesaid in the county aforesaid, to wit, on the 26th day of February in the 3d year of the reign of the said lady the queen abovesaid, before Joseph Offley, John Herbert, John Bond, John Crosbie, Benjamin Hilton, esquires, and others, their fellows, justices of the said lady the queen, assigned to keep the peace in the county aforesaid, and also to hear

and determine divers felonies, trespasses, and other misdemeanours committed in the same county, come as well the said Simon Harcourt, who prosecutes, &c. as the said Dorothy Smith, in their proper persons; and the jurors of the jury impannelled by the said sheriff for this purpose, to wit, Nathaniel Chandler, William Gunson, Robert Moore, William Giles, Robert Wheely, Edward Reynolds, Edward Hampsted, John Searle, William Ashman, Benjamin Mil's, Richard Winch, and William Weaver, being called, sworn, who being chosen, tried and sworn to speak the truth of and concerning the premises aforesaid, say upon their oath, that the said Dorothy Smith is guilty of the premises aforesaid in the indictment aforesaid above specified, above laid to her charge in manner and form as by the indictment aforesaid is above supposed against her; whereupon all and singular the premises, being seen and understood by the court here, it is considered by the court here, that the said Dorothy Smith do pay to the said lady the queen the sum of £15 for her fine by the court here above laid upon her, according to the form of the statute in that case made and provided, for and by reason of the premises whereof she the said Dorothy Smith as aforesaid is convicted, and that she the said Dorothy Smith be taken, &c. which said Dorothy Smith being present here in court, by the court aforesaid, is committed to the New Prison of the said lady the queen, at Clerkenwell in the county aforesaid, there to remain until she shall pay the fine aforesaid' &c. And now to wit, on Saturday next after one month of Easter in this same term, before the said lady the queen, at Westminster cometh the said Dorothy Smith in her proper person, who is committed to the marshal &c. and she immediately saith, that in the record and process aforesaid, and also in the giving of the judgment aforesaid against her the said Dorothy Smith, there is manifest error in this, to wit, that the indictment aforesaid against her, and the matter in the same contained, are not sufficient in law to warrant the judgment against her now given, or to convict her of the trespass and offence aforesaid; therefore in that there is manifest error: there is also error in this, to wit, that where by the record aforesaid it appears that judgment upon the indictment aforesaid was given against her the said Dorothy Smith in form aforesaid, that judgment, by the law of this realm of England, ought to have been given for the same Dorothy, that she be thereof acquitted, and go thereupon without day: therefore in that there is manifest error. And the said Dorothy prays that the judgment aforesaid for the errors being in the record and process aforesaid may be reversed and annulled, and absolutely be had for nothing; and that

she may be restored to the common law of this realm of England, and to all things which she hath lost upon the aforesaid occasion.

A writ of error of a judgment at the sessions for Middlesex at Hickes's Hall, upon an indictment upon the statute of usury and Mr., Eyre assigned for error, that the justices at sessions had no jurisdiction of usury by the statute. 12 Car. 2 c. 13. And upon looking into the statute, the court were of the opinion, and reversed the judgment. Smith v. Regina, Lord Raymond, 1144.

It will be observed that the statutes of the several states which provide for the punishment of usury by indictment, directly specify the courts in which the same may be tried, and with such correction in that respect as must necessarily be made, it is supposed the precedent here given is sufficient. It is copied from 3 Lord Raymond's R. 36.

SECTION II.

Plea of usury.

And the said C D, by E F his attorney, comes and defends the wrong and injury, when, &c.; and says, that he ought not to be charged with the said debt by virtue of the said supposed writing obligatory, (or indenture, &c.,) because he says, that before the making the said writing in the said declaration mentioned, to wit, on the said

day of, in the year of our Lord, at, &c. aforesaid, it was corruptly and against the form of the statute, in that case made and provided, agreed by and between the said A B and the said CD, that the said A B should lend and advance unto the said CD the sum of $100 of lawful money of the United States, and that the said A B should forbear and give day of payment thereof to the said C D until and upon the day of, in the year of our Lord -, then next ensuing, and that the said C D, for the loan of the said sum of $100, and for giving day of payment thereof as aforesaid, for the time aforesaid, should give and pay to the said A B, on the said aforesaid then next ensuing,

-, in the year of our Lord

day

of the sum of $8 of like lawful money, making, together with the said sum of $100 so to be lent and advanced by the said A B to the said CD as aforesaid, the said sum of $108, in the said condition mentioned, and also that the said C D should pay to the said A B interest on the said sum of $108, from the A. D..

day of

,

aforesaid, until the time of the payment of the said sum of $108, in the said condition mentioned, and that for securing the payment of the said sum of $108 with interest for the same as aforesaid, to the said A B, he the said C D should make and seal, and as his act and deed deliver to the said A B, a certain writing obligatory, and should thereby bind himself in the penal sum of $500, conditioned for the payment of the said sum of $108 by him the said C D unto the said A B, on the said day of in the year of our Lord aforesaid then next ensuing, with interest, for the said sum of $108 in the mean time as aforesaid, to be paid quarterly, to wit, at &c., aforesaid. And the said CD in fact further saith, that in pursuance of the said corrupt and unlawful agreement so made as aforesaid, the said A B afterwards, to wit, on, &c., aforesaid, to wit, at &c., as aforesaid, lent and advanced to the said C D the said sum of $100; and that for the securing the repayment thereof, together with the said sum of $8, so to be paid and given to the said A B as aforesaid, for the purpose aforesaid, on, &c., aforesaid, then next ensuing, with interest in the mean time as aforesaid, to be paid quarterly, as well for the said sum of $100 so lent and advanced as aforesaid, as for the said sum of $8, so to be given and paid to the said A B as aforesaid, for the purpose aforesaid; he the said C D, in further pursuance of the said corrupt and unlawful agreement then and there, to wit, on, &c., aforesaid, at, &c., aforesaid, made and sealed, and as his act and deed delivered to the said A B, the said writing in the said declaration mentioned, and the said A B then and there accepted and received the said writing, with the said condition thereunder written, of and from him the said CD, in pursuance of the said corrupt and unlawful agreement, and for the purpose aforesaid. And the said C D avers that the said sum of $8, so as aforesaid agreed to be given and paid to the said A B, for the purpose aforesaid, and the interest of the said sum of $108 so reserved and made payable to the said A B, by the said condition of the said writing as aforesaid, exceeds the rate of $7 for the forbearing and giving day of payment at $100 for one year, contrary to the form of the statute in such case made and provided; by means whereof, and by force of the said statute, the said writing obligatory was and is wholly void in law. And this he, the said C D, is ready to verify; wherefore he prays judg ment, if he ought to be charged with the said debt by virtue of the said writing obligatory (or indenture, &c.)

SECTION III.

Another plea of usury.

Although usury may be given in evidence under the general issue, in actions of assumpsit, still, if the defendant wish to avail himself of the testimony of the plaintiff, under the New York act of 1837, it must be made the subject of a special plea; or, what is equivalent thereto, he must give notice specially of the usurious contract he in-. tends to prove by the plaintiff's testimony. 3 Hill, 564. 4 Ibid. 35 Endorsee v. Drawer or Acceptor;-That plaintiff discounted the bill on usurious terms.

The defendant, by his attorney, as to the said [first] count, saith, that at the time of the making of the unlawful agreement hereinafter mentioned, the said bill of exchange in the said first count mentioned, had more than three months to run' before the same would become due according to the tenor and effect thereof; and that after the making of the said bill, to wit, on, &c. [the exact day if possible], it was corruptly, and against the form of the statute in such case made and provided, agreed by and between the plaintiff and the defendant, that the plaintiff should lend and advance to the defendant a certain sum of money, to wit, the sun of £, and that the said plaintiff, should forbear and give day of payment of the said sum of £—————, from the time of lending and advancing the same until a certain day, to wit, on, &c. [that is, the day on which the bill became due], and that for forbearing and giving day of payment of the said sum of £ the defendant should pay to the plaintiff a certain sum of money, to wit, the sum of £, and that for securing the repayment of the said sum of £, together with the said sum of £

A. D.

on the said day of the defendant should endorse and deliver to the plaintiff the said bill of exchange in the said first count mentioned, and the defendant saith that in pursuance of the said unlawful agreement the plaintiff did afterwards, to wit, on the said

of

lend and advance the said sum of £

day

to the

A. D. defendant, and the defendant did then, for securing the repayment of the said last mentioned sum, as also the payment of the said sum of day of A. D. -, as aforesaid, en

on

the said

'This is not material, as it refers to the English act.