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![handle is hein.slavery/ssactsengr0019 and id is 1 raw text is: MADDOCK V. HAMMETT
[184] MADDOCK QUI TAM against SIR B. HAMMETT AND OTHERS. Saturday,
May 6th, 1797. The offence of usury is not complete until the lender has
actually received the excess of interest in money or money's worth. Therefore
if a promissory note be given for repayment of a sum lent with usurious interest,
and the note when due be taken up and another note substituted for it, the
offence of usury is not thereby committed, nor is the penalty incurred till the
latter note be paid. [1 B. & P. 155. 1 Mar. 349.]
This was an action on the Statute (a)' for Usury, in which the facts were stated to
be these. On the 14th May 1795 one Haviland carried a promissory note, in respect
of which the usury was assigned, to the defendant, who were bankers at Taunton, to
be discounted. The note was made by Haviland for 10001. on the said 14th May,
payable four months after date to Sir William Yea or order, and indorsed by him.
The defendants paid Haviland 1831. 6s. 8d. in cash, 3001. in bank notes, charged
161. 13s. 4d. for the discount, and paid the remaining 5001. by a draft on their bankers
in London payable seven days' after sight. The usury was stated to consist in
calculating this last-mentioned draft as cash, instead of deducting so much from the
discount as the draft had to run before it became payable. But the point on which
the case turned was this; the note for 10001. on which the discount was taken,
became payable on the 17th September, on which day Haviland discharged it
by giving another note for 23001. which included the sum due upon the first note
and also a further advance which he received from the defendants; and the second
note is still outstanding and unsatisfied. Buller J. was of opinion at the trial at the
last Taunton Assizes that the offence charged was not complete ; for that in order to
constitute usury there must be an usurious taking, either of money or money's worth,
as well as an usurious contract; whereas nothing had been taken by the defendants
except Haviland's note, which at present only gave them a right of action, and perhaps
might never be paid. He therefore nonsuited the plaintiff.
Gibbs now moved to set aside the nonsuit, 1st, because the note for 23001. was
taken in payment for that of 10001. on which the usury is assigned, and which was
thereupon cancelled. It was so understood between the parties at the time, and
therefore the transaction is the same as if the first note had been paid in cash and
then the whole sum had been advanced by the defendants on the second note.
2dly, the excess of interest was received by the defendants at the time of discounting
the first bill; and whether [185] the money to be retained by the lender or paid by
the borrower is the same thing: the formality of its actually passing from one hand
to another, cannot vary the case. Lloyd q. t. v. Williams (a)2, as in point to shew that
the usury is complete at the time of taking the usurious interest, although the principal
may never be paid.
Lord Kenyon, Ch.J. The objection here is, that nothing has been received by the
defendants either for interest or principal, except a paper security, which till it has
been paid, is no payment whatever, and may ultimately turn out to be worth nothing.
The plaintiff says that it was given for the first note, which was given on an usurious
contract: if so, the second note is also bad. But the plaintiff cannot be permitted to
contend both ways; that it is good because given in payment of the first note, and
bad because that first note for which it was given in discharge was bad. It is true
that a payment either in money or money's worth, would be sufficient: and it shall
not be permitted to a party who has knowingly received any thing, as interest, to
apply it afterwards to another account as he finds it convenient. But here the
defendants have not received any thing; and therefore I am of opinion that the
direction of the learned Judge at the trial, was right. If indeed the note in this case
had been paid, it would have fallen within the principle of The Portsmouth Bankers'
case (b), which I held to be usury. That opinion has, I know, been questioned by
mercantile men ; but after all the consideration which I have been able to give to that
case, I still think that it was rightly decided.
Per Curiam. Rule refused.
(a)1 12 An. st. 2, c. 16. (a)2 3 Wils. 250.
(b) Matthews q. t. v. G'riffiths and Others, Peake's Ni. Pri. Cas. 200.
7 T. R . 184.](ViewImageLocal?handle=hein.slavery/ssactsengr0019&div=1&collection=&method=preview&ext=.png&size=3)