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1827.

SUTTON

TOOMER.

I should be very sorry to suppose, that bankers meant to require acceptances, in the usual sense of that word, upon notes of this description. The note was originally on a valid stamp, and though its validity is now destroyed, may it not be read to shew upon what terms the money was received ? The plaintiff could not recover upon this instrument; but the subscribing witness proved an advance of money upon the terms mentioned in a paper, which was then properly stamped. The plaintiff consented to an alteration for the defendant's benefit. His security for the two and a half per cent. interest is invalid. That does not destroy the plaintiff's remedy for his original demand, or prevent the paper's being given in evidence to shew what was the original contract.

Bayley, J.—The note was originally valid, but lost its operation by a subsequent act, which would make it void, except for the purpose of shewing upon what terms the money was received (a). But, independently of the note, we find that interest was paid ; which would shew that a principal sum was due, in reference to which the interest was paid. The original contract was, to pay the principal, and interest at the rate of three per cent. They are willing to take two and a half. It seems to be considered, that the alteration of the note destroyed the original debt; but though the parties entered into a second contract, which was void, it does not follow that the first contract is extinguished (6). A contract to pay and receive usurious interest upon a debt already existing, does not destroy the debt (c). It was competent to the Court to look at the instrument (d) for the collateral purpose of ascertaining the terms on which the deposit was made.

Rule refused (e). (a) Vide Forsyth v. Jervis, 1 (d) Rerv.Pendleton, 15 East, 449. Stark. N. P. C., 437.

(e) And see French v. Patten, (6) Robson v. Hall, Peake, 9 East, 351; Fairlie v. Christie, N. P. C., 127, S. P.

7 Taunt. 416, 1 J. B. Moore, (c) Ferrall v. Shaen, 1 Saund. 114 ; Holt's N. P. C., 331, S.C.; 292, and the cases cited, 295, in no- Stoveld y. Eade, 4 Bingh. 81. tis; Beete v. Bidgood, post 143,156.

VOL. I,

к

1827.

On oyer

the 11. 15s.,

DEARDEN and others, against Binns. A bond con- DEBT on bond, dated 19th December, 1823. ditioned for the payment of the bond appeared to be the joint and several obligation of money and interest, and

Kershaw, the defendant,and Harrop, to the plaintiffs,trustees also for the

of a certain society established at the house of Mr. Melling performance of collateral acts, Woolley, in Stayley Bridge, in 4001., solvend : to plainthe ad valorem tiffs, their certain, &c. : 'and the condition appeared to be, stamp, appro- that if Kershaw, his heirs, &c., or any of them, shall and priated to the do well and truly pay unto the plaintiffs, or any of them, principal sum, where that their, or any of their successors, executors, &c., the full stamp exceeds

sum of 2001., being money advanced by the members of which the col- the said society, with lawful interest for the same, for the lateral matter would require use of the members of the society, by the payment of inif it stood

stalments of 21. 8d. on each and every monthly day of meetalone.

ing of the members in the year, and make the first payment on the next monthly day of meeting, and also shall and do continue to make the payment on the successive monthly days as aforesaid, until the sum of 2001. and interest, upon the whole sum throughout the time aforesaid, shall be fully paid and satisfied, without fraud, &c., and also shall well and truly observe and perform the rules and orders belonging to the said society, then, &c. The defendant pleaded, first, non est factum. The second plea set out the rules of the society, and averred payment of the monthly contribution, and of all penalties, &c., and security given in respect of chances, as required by the condition. Third plea, that before the making of the supposed writing obligatory, to wit, on the 19th December, 1823, at, &c., it was corruptly, and against the form, &c., agreed by and between the plaintiffs and Kershaw, that plaintiffs should lend and advance to Kershaw, 2001., and that the plaintiffs should forbear, and give day of payment thereof to Kershaw in the manner following, that is to say, until the said sum of 2001., with interest for the same, at the rate and in manner hereafter mentioned, should be fully

1827.

DEARDEN

BINNS.

paid by Kershaw to plaintiffs, by the instalments of 21. 8d. at each and every monthly day of meeting, the first of the said payments to be made on the next monthly day of meeting of the said society following the said agreement; and that Kershaw, for the loan of the said sum of 2001., and for giving day of payment thereof as aforesaid, for the time aforesaid, should give, and pay to plaintiffs, more than lawful interest, at and after the rate of 5l. per cent. per annum on the sum of 2001., that is to say, that Kershaw agreed to pay to plaintiffs, and plaintiffs agreed to accept and receive from Kershaw, on account of the sum of 2001. and interest, the respective monthly instalments of 21. 8d. on the successive days aforesaid, until the full sum of 2001., together with interest at the rate of 51. per cent. per annum, upon the whole of the said sum of 2001. throughout the time aforesaid should be fully paid and satisfied, and that for securing the repayment of the sum of 2001., and interest on the whole of the sum of 2001. throughout the time aforesaid, by instalments as aforesaid, to plaintiffs, the defendant, together with Kershaw, and Harrop, should become bound to the plaintiffs, in the penal sum of 4001., conditioned that Kershaw, his heirs, &c., should pay unto plaintiffs, or any of them, their or any of their successors, executors, &c., the sum of 2001., together with interest at the rate aforesaid, by the said instalments, and continue to pay the said instalments, until the said sum of 2001., and interest upon the whole of the said sum throughout the time aforesaid, should be fully paid and satisfied. Averment, that in pursuance of the corrupt and unlawful agreement made as aforesaid, plaintiffs, afterwards, to wit, on the said 19th December, in the year 1823, at, &c., lent and advanced to Kershaw, the said sum of 2001., and that for securing the repayment thereof, to the plaintiffs, together with interest upon the whole of the said sum, throughout the time aforesaid, by monthly payments, as aforesaid, defendant, and also Kershaw and Harrop, in pursuance of the said corrupt, &c., then and there, to wit,

1827.

DEARDEN

v. BINNS.

on, &c,, at, &c., made and sealed, and as their joint and several act and deed, delivered to plaintiffs the said writing in the said declaration mentioned, and plaintiffs then and there accepted and received the said writing with the said condition thereunder written, of and from defendant and Kershaw and Harrop, in pursuance of the said corrupt, &c., and for the purpose aforesaid; and that the interest so agreed to be paid as aforesaid, and reserved and made payable to plaintiffs, by the said condition of the said writing as aforesaid, exceeds the rate of 51. for the forbearing and giving of day of payment of the 1001., for one year, contrary to the form, &c., by means whereof, and by force, &c., the said writing was, and is wholly void in law; concluding with verification, and prayer of judgment. Fourth plea, that before the making of the supposed writing obligatory, and also at the several times hereinafter next mentioned, Kershaw was a member of the said society, and that afterwards, to wit, on the seventh January, 1824, at, &c., at a monthly meeting of the said society, Kershaw, in respect of a certain chance or share of the said Kershaw in the subscription fund in the said rules and orders mentioned was declared to be the highest bid. der for, and entitled to one of the said shares of 501. in the said rules and orders mentioned at or for the price or sum of 71. 10s., and that afterwards, to wit, on the 4th February, 1824, at, &c., at another monthly meeting of the said society, Kershaw, in respect of two other chances or shares of said Kershaw, in the said subscription fund, was declared to be the highest bidder for, and entitled to two other shares of 501. each, at or for the price or sum of 141. 12s.; and that afterwards, to wit, on the 7th April, 1824, at, &c., at another monthly meeting of the said society, the said Kershaw, in respect of one other chance or share of the said Kershaw, in the said subscription fund, was declared to be the highest bidder for, and entitled to one other share of 501., at or for the price or sum of 81. 2s., which sums of 71. 10s., 141. 12s, and 81. 2s., make together the full sum of 301. 4s. ; and that after the respective times last aforesaid, to wit, on, &c., at, &c., it was corruptly, and against the form of the statute in that case made and provided, agreed by and between plaintiffs and Kershaw, that the said plaintiffs as trustees of the said society, should lend and advance to the said Kershaw, the sum of 1691. 16s., on account of the said four shares of 501. each, to which Kershaw was so declared to be entitled, as last aforesaid, and that the said plaintiffs should forbear and give day of payment thereof to Kershaw, in manner following (that is to say), until the said sum of 1691. 16s., together with the additional sum of 301. 4s. making together the full sum of 2001. with interest on the said last-mentioned sum of 2001., at the rate and in manner hereinafter mentioned, should be paid by Kershaw, to the said plaintiffs, by certain instalments of 21. 8d. at each and every monthly day of meeting of the said society, the first of the said payments to be made on the next monthly day of meeting of the said society, following the said lastmentioned agreement, and that for the loan of the said sum of 1691. 168., and for giving day of payment thereof, as last aforesaid, Kershaw should give and pay to the said plaintiffs, more than lawful interest, at and after the rate of 5l. per cent. per annum, on the said sum of 1691. 16s., (that is to say), the said sum of 301. 4s., making together with the said sum of 1691. 16s. so to be lent and advanced by the said plaintiffs to the said Kershaw .as aforesaid, the sum of 2001. in the said condition of the said supposed writing obligatory mentioned ; and also, that Kershaw should give and pay to the said plaintiffs the said "respective monthly instalments of 21. 8d. on the successive days last aforesaid, until the said full sum of 2001. last mentioned, together with interest at the rate of 51. per cent. per annum, upon the whole of the said sum of 2001., throughout the time last aforesaid, should be fully paid and satisfied, and that for securing the payment of the said last mentioned sum of 2001., and

1827.

DEARDEN

v. BINNs.

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