1816. JONES v. DAVISON. that as the penalty is not incurred until more than legal interest is actually received, the time of bringing an action for the penalty (which is one year after the offence committed by 31 Eliz. c. 5. s. 5.) begins from the receipt of the usurious interest, and not from the making of the contract; unless more than legal interest be received at the time of the contract. Doug. 235. 3 Wils. 261. And, as we have before shewn, that there may be usury in the person, and not in the security; the security remain ing good, and the usury being subsequent; so the person may be subject to the penalties, whilst the security (the occasion and means of the usury) may be valid; and, on the other hand, the security may be illegal and void by the statute, whilst the party may not be subject to the penalty of it. For if a man contract for more interest than the statute allows, and afterwards takes no more than legal interest, the security indeed is void; but the penalty is not incurred. And herein agree all the cases, ancient and modern. Abraham v. Bunn, 4 Burr. 2253. Floyer v. Edwards, Cowp. 114. Fisher v. See Beasley, Dougl. 237. likewise Williams' Saunders 295, where many of the old cases are collected, and the pleadings in the action for usury explained. FIRST SITTINGS AFTER TRINITY TERM, 56 GEO. III. 1816. TH SIMPSON . BLISS. HIS was an action for money had and re- Cap in 1813, laid a bet of fifteen guineas with a You cer A. wins the wager, but be fore he re ceives the mo ney from B. guineas, as his bet. B. never paid the wager hope of ob lost. Held, it with him; the defendant said he would not 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 Shortly after the race the defendant asked the plain- to 4., 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 4. was Epsom races was not to pay the bet upon the ground, but to settle at Tattersall's next morning. The plaintiff paid him the ten guineas, and the next morning Captain B. shot himself; the tiff never obtained the original bet, and the present action to recover the ten which he had paid the defendant. plain entitled, notthe statutes of gaming, to maintain an withstanding action of mo ney had and received brought against C. for guineas which he had the 10 guineas paid him. 1816. SIMPSON V. BLISS. 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. 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. This case was not afterwards moved. 1816. ADJOURNED SITTINGS AFTER TRINITY TERM, THI DAVIS v. LIVING and Others. HIS was an action against the assignees and messenger under a commission of bankrupt against Davis the elder. The plaintiff had succeeded to his father's business, and lived in a shop which had been taken in his father's name; but he carried on trade in his own name. The father was it is discre tionary with the Judge at Nisi Prit whether he will direct the acquittal of whom there is at the close of a bankrupt, and had not obtained his certificate. The assignees under his commission, suspecting that the goods in the plaintiff's shop belonged to the father, such defend and that the son was only a colourable owner, ants, against seized them under the commission against the fa- no evidence, 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 the plaintiff, that one of the assignees was present making them with the messenger when the goods were taken; the co-defendbut the witness did not know the messenger's name, an intermeand could not swear that he was one of the de- is not a matter fendants. purpose of witnesses for ants. But such diate acquittal which the defendants' counsel can claim of right. 2. An uncertificated bank Best, serjeant, insisted, that all the defendants should 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. DAVIS v. LIVING and 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. 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 which 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 Richard 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 |