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1827.

DEARDEN

v.

BINNS.

interest on the whole of the said sum of 2001., throughout the time last aforesaid, by the instalments last aforesaid to the said plaintiffs, he the said defendant should make and seal, and as his act and deed deliver to the said plaintiffs, a certain writing obligatory, to be dated the 19th December, 1823, and should thereby bind himself in the penal sum of 4001., conditioned for payment, by Kershaw, his heirs, executors, or administrators, or any of them, unto the said plaintiffs, or any of them, or any of their successors, executors, administrators, or assigns, of the said sum of 2001., together with interest thereon at the rate aforesaid, and for Kershaw, his heirs, executors, or administrators, continuing to pay the said instalments until the said last mentioned sums of 2001., and interest upon the whole of the sum throughout the time last aforesaid, should be fully paid and satisfied. Averment, that in pursuance of the said corrupt and unlawful agreement, so made ás last aforesaid, the said plaintiffs, as trustees as aforesaid, afterwards, to wit, on, &c., at, &c., lent and advanced to Kershaw, the said sum of 1691. 16s.; and that for securing the repayment thereof, together with the said sum of 301. 4s., making together the sum of 2001., and interest at the rate of 5l. per cent. per annum, on the whole of the said last mentioned sum of 2001. throughout the time last aforesaid, by monthly payments, as last aforesaid, he the said defendant in further pursuance of the said last mentioned corrupt and unlawful agreement, then and there made and sealed, and as his act and deed delivered to the said plaintiffs, the said writing in the said declaration mentioned, and the said plaintiffs then and there accepted and received the said writing, with the said condition thereunder written, of and from him the said defendant in pursuance of the said last mentioned agreement, and for the purpose last aforesaid. And that the said sum of 301. 4s., so agreed to be given for the loan of the said sum of 1691. 16s., and the said interest so reserved and made payable to the said plaintiffs,

1827.

DEARDEN

BINNS.

by the said condition of the said writing as last aforesaid,
exceed the rate of 5l., for the forbearing and giving day
of payment of 1001. for one year, contrary to the form of
the statute, &c. By means whereof, and by force of the
said statute, the said writing was and is wholly void in
law; conclusion, as in third plea. The replication assigned
a breach of the condition, by non-payment of the 2001. and
interest, and took issue upon the corrupt agreements
alleged in the third and fourth pleas. The rejoinder took
issue on the non-payment. At the trial before Hullock,
B., at the last assizes for the county of Lancaster (a), the
bond was produced and proved; but it appearing that
it bore a 21. stamp only, which is the stamp proper for
a bond conditioned for securing the payment of a sum not
exceeding 2001., and it being objected that the operation
of the bond extended beyond securing a sum of 2001.,
that point was reserved to the defendant.
negatived the payment of the 2001. and interest, and the
several corrupt agreements, and assessed the plaintiffs
damages under the statute (6).

The jury

F. Pollock, now moved according to the leave reserved. The objection on the Stamp Act is, that by this instrument more is secured than the payment of 2001. and legal interest. Kershaw was to pay 101. per annum interest during the whole time, notwithstanding the principal would be gradually diminished by the monthly payments of 21. 8d. It appeared at the trial, that such was the calculation upon which the parties proceeded (c). Another objection to the sufficiency of the

(a) Counsel for the plaintiffs, be pleaded ; 1 Hawkins, P.C. 248, Cross, Serjt. and Parke; for the s. 20;1 Curwood's Hawkins, 621, defendant, F. Pollock and Starkie. s. 63; Comyn, on Usury, 210; and

(6) 8 & 9 W. III., c. 11. if this be law, it follows that in the

(c) It has been said, that a spe- principal case the defendant could cialty cannot be avoided by usury not avail himself of usury apparent appearing in evidence, or upon the on the condition, although he face of the condition, but it must pleaded the usury, his plea of

1827.

DEARDEN

v. BINNs.

stamp is, that there cannot be appended to a money bond a collateral stipulation, without an additional stamp, particularly where the further provision appears to relate to the payment of money; here the surety might be made responsible for the payment of the monthly contributions,

usury being rendered unavailable as supporting the proposition of by the verdict of the jury, which ne- Hawkins. The case is also cited by gatived the alleged corrupt agree- Comyn ubi supra, in confirmation ment. Hawkins cites no authority, of the same doctrine. He, however, but he possibly had in view the refers also to Geary v. Swaine, 1 case of Dande v. Currer, 1 Si- Lutw. 464, & 3 Salk. 391; Whelpderfin, 285, in which the margi- dale's case, 5 Co. Rep. 119; Humnal note is, “ Although it appear berton v. Howgil, Hobart, 72. The that more money is paid than the last two cases merely shew that an statute allows, still the party ought obligor cannot, under non est facto plead the usurious contract, and tum pleaded to a money bond,shew not demur.” But the case at large that the contract was usurious, is literally this: “On demurrer in and that therefore the sealed debt on articles, it appeared that writing is not his deed. The case money was lent, ss. 500l.; and the of Geary v. Swaine, decides that a articles were dated 8th March, contract appearing in the condito be paid at such a time, and in tion of a bond, whereby the oblithe mean time to pay interest 15l. gor is to pay the principal and 101. (at the then legal rate of 6 per cent.) per cent. over, if the obligee shall half-yearly, from the November be alive at the end of half-a-year, preceding, and upon that the other and that if he die in the interim,

and it was now shewn the principal and interest shall for cause, that by the declaration it be lost to the obligee, is not so appears that the contract is usuri- conclusively usurious as to entitle ous; bui, on the other side, it was the defendant to demur, and said that it ought to have been thereby oust the plaintiff of the pleaded, quod corruptè agreatum opportunity of explaining the tranfuit, &c., to the intent that they saction in his replication, Bemight have an answer to it. But sides which, the reporter states upon reading the articles, it was, that two of the Judges thought it “Whereas money was lent,” which was not usury, and that the others might be in November or before; said nothing upon that point. The for which reason (pur que) judg- notice of the case in Salkeld, seems ment for the plaintiff:” 2 Keb. to be a short and inaccurate abstract 35, S. C. That Serjeant Haw- of part of the report in Lutwyche. kins may have been misled by And see Buchley v. Guilbank, Cro. this note appears less improbable, Jac. 677; 2 Roll. Rep.414, post 155, as even Serjeant Williams,(1 Wms. In the principal case, the objection Saund. 295 a),notwithstanding his seems to resolve itself into this: Alusual accuracy, refers to this case, though the defendant may be pre

demurs;

1827.

which Kershaw, as a member of the society, was liable to make. [Littledale, J. If the money part were left out, the bond would require a 35s. stamp (a). Bayley, J. We are to say what would be the construction of the bond at the time it was executed : your objection would rather shape itself into this, that more than five per cent. was reserved].

DEAR DEN

v. BINNS.

Lord TENTERDEN, C. J.-I cannot satisfy myself that this stamp was not sufficient. The other Judges concurring,

Rule refused (b).

cluded from availing himself of the 5l. per cent., is insufficient for the
defence of usury,which the juryhave purpose.
negatived, and although the Court (a) 55 Geo. 3, c. 184, sched.
may have no power to infer such a part 1, p. 508,“ Bond in England,
defence from the terms of the in- or personal bond in Scotland, of
strument, yet, if the parties have any kind whatever, not otherwise
clearly reserved to themselves charged in this schedule, por ex-
2001., and interest beyond 5l. per pressly exempted from stamp du-
cent., the Court are not precluded ties, 1l. 15s.”
from seeing that a stamp which will (6) And see Beete v. Bidgood,
barely cover 2001. and interest at post 143; Solarte v. Melville, post.

Doe, on the demise of WÉSTMORELAND and others, and

also of PERFECT and others v. Smith. This was an action of ejectment brought to recover the Where A, haypossession of certain messuages in the parish of Kippax, ing entered

into an agreein the county of York.

ment for a At the trial at the last assizes for the county of York, lease, has been before Bayley, J.(a), it appeared, that the defendant had session and entered upon the premises under an agreement for a lease, has paid the and that since his entry, he had paid rent to the landlord, rent, a tenancy agreeably to the terms of the intended lease. A writ of

let into pos

year is created, which the sheriff may sell under a fi. fa. against A. (a) Counsel for the plaintiff, teson ; for the defendant, F. Pol. Jones, serjeant, Milner and Pat- lock and Parke.

from year to

1827.

Doe dem. WESTMORE

LAND

v. SMITH.

fi. fa. having issued upon a judgment confessed by the now
defendant to Perfect and Co., a bill of sale was executed
to the judgment creditors by the chief bailiff of the honor of
Pontefract and his deputy, to Westmoreland and Co., the
first lessors of the plaintiff, by the direction of Perfect and
Co., the judgment creditors, who were the second lessors of
the plaintiff. It was objected, on the part of the defendant,
that when there is an agreement or equitable interest for
a term of years, there can not be such a tenancy from year
to year as can be seized by the sheriff.

By the direction of the learned Judge, a verdict was
found for the plaintiff, with liberty to the defendant to
move to enter a nonsuit.

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F. Pollock, now moved accordingly. It was admitted on the trial, that the equitable interest upon an agreement for a lease could not be seized by the sheriff (a); but it was insisted that payment of rent was evidence of a tenancy from year to year. On the part of the defendant, it is contended that the rule does not prevail where it is shewn to be a payment under an agreement; and that, under such circumstances, a tenancy at will only is created. Although a tenancy exists as between landlord and tenant, it is not so for all purposes.

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BAYLEY, J.-Could not the landlord bring an action of debt?

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