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1816.

Jones

DAVISON.

that as the penalty is not in. may be valid; and, on the
curred until more than legal other hand, the security may
interest is actually received, be illegal and void by the sta.
the time of bringing an action tute, whilst the party may not
for the penalty (which is one be subject to the penalty of it.
year after the offence com. For if a man contract for more
mitted by 31 Eliz. c. 5. s. 5.) interest than the statute allows,
begins from the receipt of the and afterwards takes no more
usurious interest, and not from than legal interest, the security
the making of the contract; indeed is void ; but the penalty is
unless more than legal interest not incurred. And herein agree
be received at the time of the all the cases, ancient and mo-
contract. Doug. 235. 3 Wils. dern. Abraham V. Bunn, 4
261. And, as we have before Burr. 2253. Floyer v. Ed-
shewn, that there may be usury wards, Cowp. 114. Fisher v.
in the person, and not in the Beasley, Dougl. 237. See
security; the security remain. likewise Williams' Saunders
ing good, and the usury being 295, where many of the old
subsequent; so the person may cases are collected, and the
be subject to the penalties, pleadings in the action for
whilst the security (the occa- usury explained.
sion and means of the usury)

1816.

FIRST SITTINGS AFTER TRINITY TERM, 56 GEO. III.

IN LONDON.

SIMPSON v. Bliss.

July 5.

as his

THIS was an action for money had and re- A. lays a I ceived. The plaintiff being at Epsom races

wager of 25

guineas with in 1813, laid a bet of fifteen guineas with a Cap

B. upon the

event of a tain B. upon a horse which was to run. The de- horse race,

and C. takes fendant, who was a training groom and standing the risk of 10 by, called the plaintiff aside, and told him, “ You

guineas (part

IOU of the 25) as had better double the bet, for that horse will cer- his share of it.

A, wins the tainly win.” The plaintiff then betted twenty-five wager, but be

fore he reguineas, and asked the defendant to take half of ceives the moit with him ; the defendant said he would not take her

ney from B.

u nou take he pays C. 10 half, but he would “go ten guineas.” The plain

portion of the tiff agreed to this proposal, and the horse won. bet. B. never

paid the wager Shortly after the race the defendant asked the plain- to A., and all tiff to pay him his ten guineas, as he was obliged taining it was to go to Newmarket that day. The custom at that a. was Epsom races was not to pay the bet upon the

Ymhe Der "pun" withstanding ground, but to settle at Tattersall's next morning. the statutes of

gaming, to The plaintiff paid him the ten guineas, and the maintain an

action of monext morning Captain B. shot himself; the plain- ney had and tiff never obtained the original bet, and brought against C. for

received the present action to recover the ten guineas to

which he had which he had paid the defendant,

paid him.

enti

· 1816,

Blossett, serjeant, objected, that this action could not be maintained, as it arose out of a gaming transaction : he cited 9 Anne, c. 14. $ 2. 13 Geo. II. c. 19.

SIMPSON

Bliss,

Best, serjeant, contrà.-This was not a bet upon a horse race; it was one degree removed. If it had been an action against Captain B. the objection might have been good: he cited Petrie v. Hannay, 3 T. R. 418.

Gibbs, C. J.-This is a nice point, and I will give the defendant's counsel liberty to move, if he desires it; but I think the plaintiff has a right to recover, on the ground that the consideration failed upon which he paid the money. The money was paid by the plaintiff to the defendant, upon the supposition that he should receive it back from Captain B. I am of opinion, therefore, that the statutes of gaming do not apply.

Best, serjeant, and Comyn, for plaintiff.

Blossett, serjeant, for defendant.

Vide Petrie v, Hannay, 3 T. where the cases are collected.
R. 418. M' Allester v. Tauen, This case was not afterwards
2 Campbell, 438; and Selwyn's moved.
Nisi Prius, title Wager; 1238,

1816.

ADJOURNED SITTINGS AFTER TRINITY TERM,

AT WESTMINSTER, 56 GEO. III. 1816.

Davis v. Living and Others.

July 6.

evidence

t some

t the

TTVHIS was an action against the assignees and 1. In an ac

tion of tort 1 messenger under a commission of bankrupt against seve

ral, if there be against Davis the elder. The plaintiff had succeeded to his father's business, and lived in a shop agains which had been taken in his father's name; but he against others,

it is discre carried on trade in his own name. The father was tionary with

the Judge at a bankrupt, and had not obtained his certificate. The Nisi Prius,

w whether hé assignees under his commission, suspecting that the will goods in the plaintiff's shop belonged to the father, acquittal of

such defende and that the son was only a colourable owner, ants, against

whom there is seized them under the commission against the fa- no evidence,

at the close of ther; and the present action was brought by the the plaintiff's son for the trespass. It was proved on the part of case, for the

purpose of the plaintiff, that one of the assignees was present

making them

witnesses for with the messenger when the goods were taken; the co-defend

ants. But such but the witness did not know the messenger's name, an interme

diate acquittal and could not swear that he was one of the de

is not a matter

which the defendants.

fendants' counsel can

claim of right. Best, serjeant, insisted, that all the defendants 2. An uncer

tificated bankshould be acquitted, except the assignee, who was rupt hires a

shop; goods are supplied in the name of his son, but principally upon the father's guarantee: Held, that his assignees were liable to an action of trespass at the suit of the son, for seizing them as the goods of the bankrupt.

1816.

proved to have directed and made the seizure: this, he stated, was for the purpose of making the messenger a witness for the other defendant.

Davis

v. Living and

Others.

GIBBS, C. J.-I do not think I am called upon to direct the Jury to acquit them in this state of the cause. It is not a matter of right wbich the defendant's counsel can claim ; it is discretionary with the Judge. And were I, in this stage of the proceedings, to direct the Jury to acquit the messenger who is joined as defendant, I am not certain that, when acquitted, and called as witness, he might not prove himself a trespasser.

It appeared in the course of the plaintiff's case, that Rịchard Davis, the father, had taken the shop in his own name ; that he had brought with him the old customers from the shop in which he carried on trade when he became a bankrupt ; that he lived in the shop with his son ; that he ordered and selected the goods, though the purchases were made in the name of his son, and credit was alone given to his son ; but, in one or two instances, the father had guaranteed the payment.

Best, serjeant, contended, that these were circumstances, from which the Jury might collect that the plaintiff had only a colourable title ; and that the property seized was virtually the bankrupt's property.

GIBBS, C. J.-It is a hard rule of law upon persons in the condition of an uncertificated bank

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