
    The King v. Ridge.
    
    May, 1817.
    A scire facias having issued against the defendant, as the acceptor ,of three several hills of exchange, dated 12th April 1813. payable twelve months after date, drawn by the Earl of Moira, whereby he (Ridge,) became indebted to Austen (the holder) in that sum and interest, as found by an inquisition, under a commission on an extent against him, as receiver general for the county of Oxford ; the defendant pleaded a general traverse : and the case coming on to be tried before the Eord Chief Baron, at the sittings after Trinity Term, the jury found a verdict for the Crown.
    In Michaelmas Term, Clarke obtained , a rule to show cause why a verdict should not be entered for the defendant, or a new trial granted.
    Erom the report of the evidence, given on the trial, it appeared to have been proved, that'a little before Eord Moira’s departure for India, his Eordship had drawn four bills for one thousand pounds each, payable to his own order, ^twelve months after date, which were accepted by Ridge, his Eordship’s regimental agent.
    That they were then handed over, endorsed by Eord Moira, generally, to Major James, his Eordship’s confidential friend, and who had been employed in obtaining money for his Eordship, through the medium of such bills, ever since the year 1802, by getting them discounted for that purpose, and often at the house of Austen & Maunde, but more particularly with Austen, who usually furnished cash for them.
    That Major James, (having previously had a communication with Maunde on the subject of getting the bills negotiated,) took them himself to the banking house of Austen, Maunde & Co., in Henrietta street; where, after several interviews with Maunde (without seeing Austen on business,) he at length received from Maunde 36001. Os. Od. (three thousand six hundred pounds) for the four bills, which he immediately gave to Eord Moira. Major James was known to Austen & Co. to be the agent of Eord Moira, and to be procuring the money for him.
    It was also in evidence, that Eord Moira’s bills, so drawn and accepted, had become much depreciated in the market; which was explained to mean, that they were not negotiable for so much in value as they purported to be drawn for, and that fifteen pound, per cent per annum, was commonly required and received for discounting them. Major James had himself no interest in the bills, but was merely the agent of Eord Moira; and had not endorsed them, nor was there any other endorsement on them but that of Eord Moira. On that evidence, the counsel for the defendant objected that the transaction was usurious ; for that it was quite clear, that the money given for the bills in question, was in the way of discounting them for Eord Moira, and not as buying them of Major James.
    His Eordship left it to the jury to say whether the transaction before them was merely colourable on the part of the house of Austen & Maunde, and was a discounting *of the bills ; or whether it was a fair and bona fide purchase of the bills by them. If the former, directing them to find for the defendant; if the latter, for the Crown ; when the jury found a verdict for the Crown.
    Dauncey and Nolan, shewed cause ; contending, that what had been done in respect of the bills, was on the face of the transaction a mere sale, and not a discount; when the Court calling on the counsel who were to support the rule :
    Clarke and Peake submitted, that the transaction was a discounting, and not a purchase of the bills, and therefore usurious ; that the money given for them was a personal advance to Eord Moira himself alone, on his credit, at a premium of 151. Os. Od. (fifteen pounds) percent, being considerably above the usual discount. Major James was nota third person holding the bill for his own benefit, as having received it for money due to him from Eord Moira, nor does he endorse it, or make himself liable ; if he had, it would have been a- loan to him, and therefore, equally usurious ; but, he is identified with Eord Moira, who was at the time distressed for money, and was precisely one of the persons meant to be protected by the statute, (12 Anne, chap. 16,) against the mischievous consequences of their necessities, and the language of the act is most general : or, if transactions of this sort may be legalized as a sale, the beneficial provisions of that act will be frustrated. A party selling a bill is released from all responsibility on it.
    Not so here. Eord Moira, whose sale it was, if the bill was sold, for it was sold for his benefit, and in fact by himself ; for the mere agency of a third person can make no sort of difference in the act itself, which was a discounting of these bills at more than five per cent.
    Dauncey and Nolan, contra, contended, that it was a mere question of fact for the jury, whether. this was a sale by Major James, or a discounting’ for Lord Moira ; and their finding ought to be conclusive.
    *It was in evidence that no one would take these bills for their full amount; therefore, they were sent into the market to be sold to any one who would purchase them on speculation. They had in the market • a specific value assigned them, and the house of Austen & Co. had given for them all that they were considered to be worth. This is an instrument on which any one, becoming legally possessed of it, might sue, and therefore may be the subject matter of sale. If the issue of the bill was fair at first, subsequent usury does not vitiate it. If Austen & Maunde had endorsed these bills over to a third person, they would have been available in his hands ; so also are they in the hands of the Crown.
    
      
       This case is referred to in Whitworth v. Adams, 5 Rand. 389, 398, 418, 419, 423.
    
   RICHARDS, Chief Baron.

This is certainly a case of very singular circumstances. (Stating the transaction and the connection between the parties, and observing particularly on the communication between James and Maunde, before the bills were produced.) It is said that this transaction was usurious ; and if it were, we are bound here to decide according to law.

Now I confess, on re-consideration, that I think this was an usurious transaction, and that the usury affects the Crown, in the same manner as it would the assignees of Austen & Maunde, if they had become bankrupt. Without entering into all the circumstances, the simple fact is. that Lord Moira and Major James were, as to this transaction, one and the same person. If Cord Moira had gone to Austen & Maunde, and said, “Lend me 34001. and I will give you bills for 40001.” no doubt that would have invalidated the bills ; and I do not see how we can distinguish between the facts of the bills being signed before or after the negotiation, or whether they were taken to Austen & Maunde in an issuable state or not. Major James does not affect to be more than a mere messenger in the business. It was argued, that if the bills were good in their ’^inception, subsequent usury would not make them bad. I think, however, that it would. Then it was contended, that in the hands of the Crown, as of an innocent holder, the vice of the bills was removed ; but, I think that the Crown must stand in the place of an assignee ; and I think it is clear, that in case of bankruptcy an assignee could not have recovered on the bills ; and I see no difference, for they both become possessed by act of law.

It has been put also, that the question was fairly left to the jury as a question of fact, whether this negotiation was a loan or a sale; they being told that in the one case the bills would be bad ; in the other, they would be good. The effect of that direction would be, to leave the question of law to them. Now I think that the person who tried this case ought to have told the jury, that under the circumstances of this case the transaction was usurious. It did not occur to me then, as it does now, that this negotiation was tainted with usury ; but, I should certainly now direct, if theca.se were trying before me, that Lord Moira could not be sued on these bills, because they are bad in point of law ; and, therefore, I think there should be a new trial.

GRAHAM, Baron.

The arguments of the defendant’s counsel have relieved me from many considerable difficulties ; and I think the question was, ultimately, not one of fact. If Major James had received these bills from Lord Moira on his own account, as security for a debt, and had then sold them, the direction would have been right; but James was Lord Moria’s confidential agent. (Adverts to the evidence.) This, therefore, being clearly a loan to Lord Moira, and not a purchase in the market, it was not a question for the jury ; and the Judge should have told them, that it was a transaction which the law did not allow. Then the bills getting into the hands of the Crown, under this extent against its debtor, does not remove the usurious quality ; for, that is ^certainly a very different thing from a bill originally good having got into the possession of a bona fide holder for a valuable consideration.

WOOD, Baron, absent.

GARROW, Baron.

The confusion which has got into this case, proceeds from its having been at one time considered, that these bills were sent about the town to be sold for what could be got for them ; but the fact is, that this paper was sent by the maker to those who well knew its precise value, to get that value for it, which was done. Nothing had been given by Major James for it; and whether the transaction was originally good, it is not necessary to enquire : but that this transaction, as between Major James, the acknowledged agent of Lord Moira, and Austen & Maunde, was usurious, there can be no doubt.

It was ingeniously argued, that the bills, by-getting into the hands of the Crown, made a difference, as between the Crown and the party; but, it would be most unfortunate if that were so ; for, then the grossest usurer would have nothing to do but to get his bills seized under an extent, and then all his illegal transactions would be rendered available in the hands of the Crown. That is too monstrous a proposition for serious consideration, and would require to be supported by undoubted authority.

PER CURIAM.

Rule absolute.  