the bill, so far as regarded 357., the residue of the sum therein specified, should be renewed, and that the defendants should take in renewal thereof, as to the 351., another bill for 357., bearing date the 8th of April, 1830, to be drawn by Newton upon, and accepted by, Joyce and Son, payable two months after date to Newton's order, and to be indorsed and delivered by him to the defendants; and that the defendants should take the said 57. in part of the said 407.; and should take the said last-mentioned bill of exchange in renewal of the said first-mentioned bill as to the said sum of 35l.; and should forbear and give day of payment of the said sum of 357. in this count first mentioned, from thence until the said bill for 357. should become due. And that, for *671] forbearing and giving day of payment of the 357. so to be forborne, &c., from the time when the first-mentioned bill became due till the bill for 35%. should become due, the defendants should take, accept, and receive from Newton a certain sum, viz. 27. 1s. 6d. The count then alleged that, in pursuance of the said agreement, the defendants did then and there, viz. on the said 12th of April, 1830, take, accept, and receive of and from Newton the said 27. 1s. 6d. for the forbearing, &c., from the time of making the said agreement until the time when the bill for 357. should become due; and that, as a security for the 357., and in renewal of the first-mentioned bill as to that sum, Newton did then and there, viz. on the said 12th of April, 1830, in further pursuance, &c., make and draw his certain other bill of exchange in writing, bearing date the said 8th of April, 1830, being the day when the first-mentioned bill became due, &c. The count then went on to describe the bill in other respects, and stated that it was then and there accepted by Joyce and Son, and indorsed and delivered by Newton to the defendants; and that the defendants then and there took and received the same as security, &c., and in renewal, &c. And that the defendants, in further pursuance, &c., did forbear and give day of payment of the said 357. so to be forborne, &c., from the time when the first-mentioned bill became due, until the said bill for 351. became due, the said first-mentioned bill not being paid or satisfied except as to the said 57. Averment, that the 27. 1s. 6d. so taken, &c., exceeded the rate of 57. for 1007. for a year, contrary to the form of the statute, &c.: whereby, &c. The seventh count contained a similar statement of the usurious renewal of a bill of 50.; the usurious bargain, and *672] the taking of the sum in consideration *of forbearance, being laid (with a videlicet) on the 12th of June, 1830, on which day also the new bill was in like manner alleged to have been drawn, bearing date the 4th of June, 1830. The statements as to the contract of forbearance, and the forbearance actually granted, were the same as in the first count. The twentieth count stated, that Joyce and Son before the making of the next-mentioned agreement, viz. on the 20th of July, 1830, drew a bill of that date upon the plaintiff, payable to Joyce and Son two months after date, for 307., which bill the plaintiff accepted, and Joyce and Son indorsed and delivered to Newton; and that afterwards, viz. on the 23d of July, 1830, it was corruptly, and against the form, &c., agreed by and between the defendants and Newton, that the defendants should lend and advance to Newton, upon the discount of such bill, 287. 58., and should forbear and give day for payment of that sum to Newton from the lending and advancing of the same until the bill should be due, and that for the forbearing, &c., the defendants should take, accept, and receive 17. 15s., and that for securing the payment of the said 287. 5s. so to be lent, &c., and of the said 17. 15s. so to be taken, &c., Newton should indorse and deliver to the defendants the last-mentioned bill. And the count averred that in pursuance of the said agreement, the defendants did afterwards, viz. on the 23d of July, 1830, advance and lend, &c., and did forbear, &c.; and that, for securing the payment of the said 287. 58. and 17. 15s., Newton, in further pursuance, &c., did, on the said 23d of July, 1830, indorse and deliver to the defendants the last-mentioned bill, which the defendants then and there took from him according to the said corrupt agreement, and upon the terms thereof; and the defen

[*673

dants afterwards, viz. *on the 6th of December, 1830, took and received from Newton the said 17. 15s. for such last-mentioned forbearance in pursuance of the said last-mentioned agreement, which said sum, &c. (averment that 17. 15s. exceeded the rate of 5 per cent.) contrary to the form, &c., whereby, &c. The twenty-second count was for receiving from Newton, viz. on the 6th of December, 1830, upon a certain other corrupt contract, made July 23d, 1830, 17. 15s. by way of corrupt bargain for the defendants' forbearing and giving day, &c. to Newton, of 287. 15s. from the 24th of July to the 6th of December, 1830, the said 287. 15s. being, on the said 24th of July and until and upon the said 6th of December, due from Newton to the defendants. Averment, that 17. 15s. exceeded the rate of 5 per cent. The twenty-fifth count was upon the usurious renewal of a bill for 307. at two months, drawn by Joyce and Son upon the plaintiff, dated July 20th, 1830, indorsed to Newton, and by him to the defendants; and it did not materially differ from the first and seventh counts. Plea, the general issue.

On the trial before Denman, C. J., at the sittings in London after Michaelmas term, 1833, evidence was given in support of the above counts, but the witnesses were unable to state in any instance the day on which the usurious contract took place. It appeared, however, that the renewals took place after the renewed bills became due. For the defendants it was contended that, to support this action, the precise day of the usurious contract ought to have been proved; and Carlisle v. Trears, 2 Cowp. 671, was cited. The Lord Chief Justice reserved the point, and the plaintiff had a verdict on the above-mentioned counts. In Hilary term, 1834, Hutchinson obtained a rule nisi for entering a nonsuit. *Barstow, now shewed cause. The precise day of the usurious contract [*674 need not be shewn. It is sufficient if the plaintiff shews a combination of facts, from which an irresistible conclusion results, that usurious interest has been agreed for and taken. Then, if two points of time are given, and it is clear that, if the forbearance was agreed for at any time between those two, the offence of usury has been committed, the plaintiff establishes his case if he shews that the contract of forbearance was to take effect from some such intermediate time, although he may not be able to fix the precise day. Here, that is the case at all events with the renewals. In each instance where the bills were renewed, it was clear that the contract took place after the first bill had become due. Thus, in the case of the bill mentioned in the first count, the bill origi nally given was due on the 8th of April. Newton, on some day after that time, agreed to give a new bill for 357. at two months, bearing date the 8th of April, and to pay the defendants 27. 1s. 6d. for giving him time from the day when the first bill became due, till the day when the second was due. Now at whatever time between those two days the contract may have been made (and it must have been at some intermediate time), the interest was excessive. A similar argument will apply, though less strongly, to the cases of discount. If the forbearance began on the very day when the bills were drawn, the interest was excessive, and it is not necessary to shew how much the amount taken exceeded 5 per cent. In Partridge v. Coates, Ry. & M. 153, 1 Car. & P. 534, where the action was upon the present statute, and a variance appeared between the *declaration and evidence, as to the day from which the forbearance was [*675 to begin, Abbott, C. J., said "You must, in a declaration for usury, shew, on the face of the record, that the period of forbearance is such, that the sum taken for interest is more than the party by law is allowed to take." Here the declaration shewed the period of forbearance to be such that the interest must have been usurious, and it was supported by the evidence. In a case of Harfield v. Levy, argued in the Exchequer (but not reported) Partridge. Coates, Ry. & M. 153, 1 Car. & P. 534, was cited as shewing that, in such an action as this, the day of the contract is material. One of the learned Judges of that Court thought that that case did not go so far, but said that, if it did, he disapproved of the decision; it became unnecessary, however, to decide the

particular point, because it appeared that there had been sufficient proof of the day. In Carlisle v. Trears, 2 Cowp. 671, there was no specified period within which, on whatever day the contract took effect, it must have been usurious. In Brooke v. Middleton, 1 Camp. 445, the interest was alleged to have been taken for the forbearance of a sum of money from the 20th of April; but it appeared in evidence that the actual loan, from which the forbearance was necessarily to be dated, could not have taken place till the 21st, and the variance was held fatal. Here, in the cases of renewal, the forbearance was to be from the time when the first bill became due, till the maturity of the second; and in this respect the evidence agreed with the declaration. The same distinction applies to Carlisle v. Trears, 2 Cowp. 671, Harris v. Hudson, 4 Esp. N. P. C. 152, and Borrodaile v. Middleton, 2 Camp. 53. *None of these cases, therefore, apply to the contracts of renewal.

*676]

Sir W. W. Follett, Solicitor-General, contrà. The argument for the plaintiff is, that if an usurious contract be shewn, the precise date of it is immaterial, or that, if two days can be fixed between which the contract must have taken place, and having taken place, must be usurious, the plaintiff has proved his case. But it has constantly been held, in proceedings upon this penal statute, that the day of the loan, as well as the time of forbearance, must be distinctly alleged, and, even if stated under a videlicet, must be proved as laid. In Harfield v. Levy, ante, p. 675, there were two sets of counts, one set laying the transaction on Friday, the other on Saturday; the witness who proved the loan expressed some uncertainty as to the day, but was sure that it was either the Friday or the Saturday; and it appearing that the Friday was Good-Friday, when the bank at which the loan took place was closed, the jury, upon the whole evidence, were of opinion that the transaction happened on the Saturday; and the Court of Exchequer held that there was evidence to support their finding. One of the learned Judges did say that he thought the rule formerly laid down was too strict, but nothing was decided on that point. There is no distinction here between the discounts and renewals; and in no instance is any time proved at which the material facts took place. As to the renewals, all that appears is, that they happened after the bills became due. [LITTLEDALE, J. The time of forbearance is from *the time of the first bill being due till the second *677] becomes due.] But no day is shewn upon which the contract took place. The question discussed in Harfield v. Levy, ante, p. 675, was, whether sufficient evidence had been given as to any particular day. Here there is no proof as to any day. According to the authorities, even if proof of a day had been given, and that proof had varied from the declaration, the plaintiff must have failed. Lord DENMAN, C. J. It is clear from the authorities, that time is of the essence of all usurious bargains, and that in a declaration alleging such a bargain, the date of the usurious contract must be stated, and must be proved as laid, even though under a videlicet. A different day cannot be proved, and some day must be stated and proved. In this case though it is demonstrable that usury was committed, no day was shewn in evidence, upon which the contract took place; nothing was laid before the jury which could enable them to say that the precise offence laid in the declaration was proved. We cannot contend with the decided cases. The rule must be absolute. LITTLEDALE, WILLIAMS, and COLERIDGE, Js., concurred.

Rule absolute. (a)

(a) See the authorities cited in 1 Wms. Saunders, 295, a.; note (1) to Ferrall v. Shaen.

VOL. XXIX.-21

*In the Matter of The LONDON and GREENWICH Railway Company and the Sheriff of SURREY. Friday, January 30.

A company was empowered by statute to take certain lands, making compensation to the owners for the value of the lands, and for damage occasioned by the taking; and it was enacted that such compensation, in case of disagreement, should be assessed by a jury to be summoned by the sheriff on the company's warrant. It was also enacted that, upon such assessment, the satisfaction for damages should be settled and ascer tained separately from the value of the lands.

A jury was summoned on warrant as above, stating the subject of the inquiry to be, the purchase-money to be paid for lands of T. K., and the compensation to be made to him for damage. The jury returned a general verdict for 15,000l. Neither the proprietor nor the company (unless by the form of the warrant) required a distinct assessment to be made of value and damages. This Court refused to grant a mandamus to the sheriff, at the company's instance, to summon a jury for a new inquiry.

It being objected that, for want of a distinct assessment, the ad valorem duty to be put upon the conveyance to the company could not be ascertained, the Court recommended that the finding of the jury should be specially stated in the conveyance, and duty paid as upon a purchase for 15,0002.

WIGHTMAN, in this term, obtained a rule nisi for a mandamus to the sheriff of Surrey to summon a jury to inquire of, assess, and ascertain the sum of money to be paid by the above-mentioned company for the purchase of all the leasehold estate of Thomas Keeton in certain dwelling-houses, garden ground, &c., in the parish of Bermondsey; and also in satisfaction or recompence for all his estate and interest of and in certain other garden ground near the Spa Road, in the same parish, in the occupation respectively of Keeton or his under-tenants, about to be purchased pursuant to a notice given by Keeton to the company under stat. 3 & 4 W. 4, c. xlvi. (local and personal, public;) and also the sum to be paid him by way of satisfaction or compensation for any loss, damage, or injury whatsoever for improvements, tenant's fixtures, machinery, or in any other manner howsoever, which the said Thomas Keeton might sustain or be put to by or by reason of the passing of the said act, and in respect of which he should be entitled to satisfaction or compensation by virtue of the said act: and also the compensation and satisfaction to be paid to the said Thomas Keeton for the loss, damage, or injury which he should sustain or be put to by reason of the delivering up the possession of the whole of the said garden ground situate near the Spa Road, in his occupation.

[*679

The company is incorporated by the above-mentioned statute, and is thereby empowered (under certain regulations) to take and use lands for the purposes of the act. Sect. 39, enables persons to contract with the company for the sale of lands, and gives a form of conveyance. By sect. 43, any person interested in lands, and receiving notice from the company of their intention to take or use the same is required to give a statement to the company of the interest which he claims therein, the injury or damage sustained by him, and the compensation he expects for such interest, and in respect of such injury or damage. Section 46, enacts that if certain persons, among whom is the said Thomas Keeton, shall be applied to by the company to sell any property belonging to them, and shall signify to the company that they desire to treat for and sell the whole of such property, and the company shall not agree to take the whole, the said person shall not be compellable to treat for or sell any part of such property. By sect. 49, proprietors of lands, &c., through which the railway is to be made, may accept satisfaction for the value of such lands, &c., or the interest therein by them conveyed, and also compensation for any damage sustained by them by reason of the severing or dividing of such lands, &c., or by reason or on account of any of the works by this act authorised, or of the execution of any of the powers of this act, in such gross sums as shall be agreed upon between the said owners and occupiers respectively and the said company; and in case

the

*680] company and such parties shall not agree as to the amount of *purchase-money or compensation, the same shall be ascertained by the verdiet of a jury. And sect. 50, enacts that upon such disagreement, or in the other cases there pointed out, the company shall issue a warrant under their common seal to the high bailiff of Southwark, or sheriff of Surrey, &c., to impannel, summon, and return a jury, which jury when made up as is there directed, shall "inquire of, assess, and ascertain, and give a verdict for the sum of money to be paid for the purchase of such lands," &c., "and also the sum of money to be paid by way of satisfaction, recompense, or compensation, either for the damages which shall before that time have been done or sustained as aforesaid for or by reason of the severing or dividing the same from other lands," &c., " or for the future temporary or perpetual or for any recurring damages," &c., "and for damage, loss, or injury as aforesaid." It is further enacted, that the high bailiff, &c., shall give judgment for the purchase-money or compensation assessed, according to the verdict, and such verdict and judgment "shall be binding and conclusive to all intents and purposes upon all parties and persons whomsoever."

Sect. 51, is as follows:-" Provided also, and be it further enacted, that in ascertaining the money to be paid for the purchase of any lands," &c., " to be taken or used for the purpose of this act, and the satisfaction, recompense, and compensation to be made for any damages which shall or may be sustained by any parties or persons respectively interested in such lands," &c., "such satisfaction, recompense, and compensation for damages shall be settled and ascer*681] tained separately and distinctly from the value of the lands," &c., "so to be taken or used as aforesaid." Sect. 52, enacts, that the jury shall, and they are empowered, "if thereunto required," to apportion part of the purchase-money or compensation to tenants or others, having a particular interest. By sect. 53, the verdicts and judgments, signed by the presiding officer, are to be kept by the clerk of the peace, and deemed records; and the same, or true copies of them, shall be allowed to be good evidence in all courts.

Sect. 58, enacts, that upon payment or legal tender of such sums of money as shall have been agreed upon between the parties, or awarded by a jury as the purchase-money for any lands, &c., or as a satisfaction, recompense, or compensation for any damages, as before mentioned, to the respective proprietors of such lands, &c., and other persons respectively interested and entitled, &c., or, if the parties so entitled or interested cannot be found, or shall refuse to receive such money, or shall refuse, neglect, or be unable to make a good title, or shall refuse to execute the necessary conveyances, &c., then, upon payment of such money into the Bank of England, as is after directed (sect. 73), within three calendar months, &c., for the use of the party entitled, it shall be lawful for the company forthwith to enter upon and take possession of such lands, &c., and to make and construct the works by this act authorized, and in respect of which such satisfaction, recompense, or compensation shall have been agreed upon or awarded, and the lands, &c., shall thenceforth be vested in the company. The said Thomas Keeton, being applied to by the company for a por*682] tion of his land mentioned in sect. 46, (*part of which land he held from year to year, and part for the residue of a term of twenty-one years, fifteen being unexpired,) demanded that they should take the whole of the lands; and, a price not being agreed upon, the company issued their warrant, calling upon the sheriff of Surrey to summon a jury to inquire of, assess, and ascertain the sum to be paid by the company in respect of the same matters as are enumerated in the above rule nisi. The jury met, and evidence was given on Keeton's part for the purpose, as the company now alleged, of shewing both the value of the lease, and the loss or damage the claimant would sustain by the premises being taken: but on Keeton's part, it was represented that the evidence bore upon the latter point only. The company called no witnesses. The price of the fixtures had been previously agreed upon. No specific claim was made in