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 4007., 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 2007., 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 2007., 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 as 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 1697. 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 51. per cent. per annum, on the whole of the said last mentioned sum of 2007. 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 307. 4s., so agreed to be given for the loan of the said sum of 1697. 16s., and the said interest so reserved and made payable to the said plaintiffs, by the said condition of the said writing as last aforesaid, 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 107. 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, Cross, Serjt. and Parke; for the defendant, F. Pollock and Starkie. (b) 8 & 9 W. III., c. 11. (c) It has been said, that a specialty cannot be avoided by usury appearing in evidence, or upon the face of the condition, but it must be pleaded; 1 Hawkins, P. C. 248, 1827. DEARDEN บ. BINNS. 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 by the verdict of the jury, which negatived the alleged corrupt agreement. Hawkins cites no authority, but he possibly had in view the case of Dande v. Currer, 1 Siderfin, 285, in which the marginal note is, “Although it appear that more money is paid than the statute allows, still the party ought to plead the usurious contract, and not demur." But the case at large is literally this: "On demurrer in debt on articles, it appeared that money was lent, ss. 500l.; and the articles were dated 8th March, to be paid at such a time, and in the mean time to pay interest 157. (at the then legal rate of 6 per cent.) half-yearly, from the November preceding, and upon that the other demurs; and it was now shewn for cause, that by the declaration it appears that the contract is usurious; but, on the other side, it was said that it ought to have been pleaded, quod corruptè agreatum fuit, &c., to the intent that they might have an answer to it. But upon reading the articles, it was, "Whereas money was lent," which might be in November or before; for which reason (pur que) judgment for the plaintiff:" 2 Keb. 35, S. C. That Serjeant Hawkins may have been misled by this note appears less improbable, as even Serjeant Williams, (1 Wms. Saund. 295 a),notwithstanding his usual accuracy, refers to this case, as supporting the proposition of Hawkins. The case is also cited by Comyn ubi supra, in confirmation of the same doctrine. He, however, refers also to Geary v. Swaine, 1 Lutw. 464, & 3 Salk. 391; Whelpdale's case, 5 Co. Rep. 119; Humberton v. Howgil, Hobart, 72. The last two cases merely shew that an obligor cannot, under non est factum pleaded to a money bond,shew that the contract was usurious, and that therefore the sealed writing is not his deed. The case of Geary v. Swaine, decides that a contract appearing in the condition of a bond, whereby the obligor is to pay the principal and 107. per cent. over, if the obligee shall be alive at the end of half-a-year, and that if he die in the interim, the principal and interest shall be lost to the obligee, is not so conclusively usurious as to entitle the defendant to demur, and thereby oust the plaintiff of the opportunity of explaining the transaction in his replication, Besides which, the reporter states that two of the Judges thought it was not usury, and that the others said nothing upon that point. The notice of the case in Salkeld, seems to be a short and inaccurate abstract of part of the report in Lutwyche. And see Buckley v. Guilbank, Cro. Jac. 677; 2 Roll. Rep.414, post 155. In the principal case, the objection seems to resolve itself into this: Although the defendant may be pre 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]. Lord TENTERDEN, C. J.-I cannot satisfy myself that this stamp was not sufficient. The other Judges concurring, 1827. DEAR DEN บ. BINNS. cluded from availing himself of the defence of usury, which the juryhave negatived, and although the Court may have no power to infer such a defence from the terms of the instrument, yet, if the parties have clearly reserved to themselves 2007., and interest beyond 5l. per cent., the Court are not precluded from seeing that a stamp which will barely cover 2001. and interest at Rule refused (b). 51. per cent., is insufficient for the (a) 55 Geo. 3, c. 184, sched. (b) And see Beete v. Bidgood, post 143; Solarte v. Melville, post. DOE, on the demise of WESTMORELAND and others, and also of PERFECT and others v. SMITH. THIS was an action of ejectment brought to recover the possession of certain messuages in the parish of Kippax, in the county of York. At the trial at the last assizes for the county of York, before Bayley, J. (a), it appeared, that the defendant had entered upon the premises under an agreement for a lease, Where A, having entered into an agreement for a lease, has been let into possession and has paid the stipulated and that since his entry, he had paid rent to the landlord, rent, a tenancy from year to agreeably to the terms of the intended lease. A writ of year is created, which the sheriff may sell under a fi. fa. against A. (a) Counsel for the plaintiff, Jones, serjeant, Milner and Pat teson; for the defendant, F. Pol- 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. 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. BAYLEY, J.-Could not the landlord bring an action of debt? The other Judges concurring, (a) Scott v. Scholey, 8 East, 467; Metcalf v. Scholey, 2 N. R. 461. Rule refused (b). (b) And see Mann v. Lovejoy, 1 R. & M. 355; Hamilton v. Stead, 5 D. & R. 206, 3 B. & C. 478, S.C. |