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And if it were given to an indorsee of the first bill or note who took it bonâ fide and for value, he could not before 58 G. 3. have sued any of the parties whom the usury would have protected from the first bill or note. (56)

Especially if he knew of the usury when he took the substituted security. (56)

But a bill or note substituted for one given upon an usurious contract will be valid, if it is given for principal and legal interest only; (57)

Or for what remains due for principal and legal interest, after reforming all prior payments, and excluding all usurious interest. (57)

for 401. upon the transaction: this bill came into plaintiff's hands bonâ fide and for valuable consideration, but when it became due it was not paid, and plaintiff was apprised of the usury; it was then arranged that Akers should draw for the amount upon defendant, and that defendant should accept for the accommodation of White, which was done accordingly: nonsuit; and on rule nisi to set aside the nonsuit, and cause shewn, the court thought that as defendant really stood in the place of White, whatever would be a defence for White was also a defence for defendant, and as plaintiff's recovery in this action would enable Akers to keep the usurious interest he had received, and plaintiff by taking this new security, in which White's name was studiously omitted, was lending himself to screen Akers, the usury was a bar to this action, and the nonsuit right.

(57) Preston v. Jackson, 2 Stark. 237. Wyer lent defendant two sums on usurious interest, and took defendant's bonds for the amount; the bonds were afterwards given up, the account settled, and a note given for the usurious interest: Wyer indorsed that note to the plaintiff, and Holroyd J. held,

If a bill or note is given in part upon a legal, and in part upon an illegal consideration, and several bills or notes are afterwards substituted in lieu thereof, the effect of the illegality may be confined to some only of the substituted bills or notes, and the other stand exempt. (58)

As where a bill or note is given as to half for a gaming debt, and as to the residue for money lent, and two bills or notes of equal amount are afterwards substituted for it, if the giver does any thing which may be considered an election to ascribe the gaming debt to the one, he will be liable upon the other. (58)

Promising to pay one whilst both remain unpaid, shall be deemed an election to ascribe the gaming debt to the other. (58)

that though a new security for principal and legal interest had been held binding, such a security for the usurious interest was not so, and he would not allow the plaintiff to recover on the note.

(58) Hubner v. Richardson, Michas. 1819. Richardson lost to Brown at gaming 90l. and owed him other money; and for upwards of 201. of the gaming debt, and upwards of 70%. of the other, gave him a 100%. note: he paid part, and then gave Brown two notes for 431. each, one of which was indorsed to plaintiff for a valuable consideration, and he knew nothing of the gaming debt; defendant promised him payment: and in an action on the note, case on question whether the gaming consideration vitiated the note in plaintiff's hands, and after argument, the court held it did not, for it was for defendant to make out that some of the gaming debt made part of the consideration of this note: it might be wholly included in the other note, which did not appear to have been paid, and defendant's pro

But it is no objection to a bill or note that it was drawn in order to be discounted, and that the brokerage for getting it discounted was exorbitant, if the broker did not discount them himself, and the person who did knew nothing of his charge. (59)

The objection of illegality of consideration is in some cases confined to those persons who were parties or privy to such illegality, and those to whom they have passed the bill or note without value; in other cases it is extended even to holders bonâ fide, and for value.

The latter cases are, where the consideration is either (60) wholly or in part (61) signing a bankrypt's certificate, money (62) lost by gaming as afore

mise to pay this, implied an election on his part that it should be so included in the other.

(59) See Acland v. Pearce, 2 Campb. 599. Young Y. Wright, 1 Campb. 139. Dagnell v. Willey, 11 East. 43.

(60) Robinson y. Bland, Burr. 1077. A bill of exchange was partly for money lent at the time and place of play, and partly for money lost at play and on a case reserved the court held that the plaintiff could recover nothing upon the bill, but that he might recover the money lent on a count for money lent.

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(61) Vide 5 G. 2. c. 30. § 11. ante, p. 400. note (24).

(62) By 9 Ann. c. 14. §. 1. It is enacted that all notes, bills or other securities whatsoever, given, granted, drawn or entered into, or executed by any person or persons whatsoever, where the whole or any part of the consideration of such conveyances or securities shall be for any money, or other valuable thing whatsoever, won by gaming, or playing at cards, dice, tables, tennis, bowls, or other game or games whatsoever, or by betting on the sides or hands of such as do game at any of

said, or by betting on the sides of persons so gaming, money knowingly lent for such gaming or betting, money lent at the time and place of such play to any person either then gaming or betting, or who shall, during the play, play or bet, (63) money lent

the games aforesaid, or for the reimbursing or re-paying any money knowingly lent, or advanced for such gaming or betting as aforesaid, or lent or advanced at the time and place of such play, to any person or persons so gaming as aforesaid, or that shall, during such play, so play or bet, shall be utterly void, frustrate, and of none effect, to all intents and purposes whatsoever.

Bowyer v. Bampton, Str. 1155. Several notes given by Bampton to Church for money lent to game with, were indorsed by Church to the plaintiff for a full and valuable consideration, and the plaintiff had no knowledge that any part of the consi deration from Church to Bampton was money lent for gaming; and after two arguments upon a case reserved, the court held that the plaintiff could not maintain the action; for it would be making the notes of use to the lender, if he could pay his debts with them, and it would tend to evade the act, on account of the difficulty of proving notice on an indorsee; and the plaintiff would not be without remedy, for he might sue Church on his indorsement.

(63) By 12 Ann. St. 2. c. 16. It is enacted, that no person or persons whatsoever, upon any contract, take directly or indirectly, for loan of any monies, wares, merchandise, or other commodities whatsoever, above the value of 5. for the forbearance of 100%. for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter time; and that all contracts, and assurances whatsoever, made after the time afore said, for payment of any principal, or money to be lent or covenanted to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of 54. in the hundred, asaforesaid, shall be utterly void.

Lowe v. Waller, Dougl. 708-736. The defendant was acceptor of a bill, which he gave to Harris and Stratton upon an

on an usurious contract, the (64) ransom, or money knowingly (65) lent to enable the owner to ob

usurious contract; Harris and Stratton indorsed it to the plaintiff for a valuable consideration, and the plaintiff had no notice of the usury; upon a case reserved, the question was, whether the usury between Harris and Stratton and the defendant was a defence against an indorsee who took the bill bonâ fide, and paid a valuable consideration for it; and after time taken to consider, the court held it was, and though Lord Mansfield had a wish the law should turn out in favour of the plaintiff, the court found the words of the act too strong, and could not get over the case of Bowyer v. Bampton, Str. 1155.

(64) By 45 Geo. 3. c. 72. (which repeals the former act 43 Geo 3. c. 160. relating to the same subject) sect. 16. it is enacted, "That it shall not be lawful for any of his Majesty's subjects to ransom, or to enter into any contract or agreement for ransoming any ship or vessel belonging to any of his Majesty's subjects, or any merchandise or goods on board the same, which shall be captured by the subjects of any state at war with his Majesty, or by any persons committing hostilities against his Majesty's subjects, unless in the case of extreme necessity to be allowed by the court of admiralty."

And by sect. 17. "All contracts and agreements which shall be entered into, and all bills, notes, and other securities which shall be given by any person or persons for ransom of any ship or vessel, or of any merchandise or goods on board the same contrary to this act, shall be absolutely null and void in law, and of no effect whatsoever."

(65) Webb v. Brooke, 3 Taunt. 6. The plaintiff and defendant (British subjects) were made prisoners by the French at Oporto, where the defendant's ship was at the same time taken; they jointly petitioned for the release of themselves, and for the ransom of the defendant's ship, and to enable the defendant to pay for the ransom, the plaintiff lent him 3000 dollars, and for this sum the defendant drew a bill in his own favour, which he indorsed to the plaintiff. Their liberation and the ransom were accordingly effected, and they returned (as had been agreed upon) in the ship to England. The drawee refused to accept

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