made to them accordingly, down to the period of their respective failures. Commission cannot be added to the amount of legal interest for the purpose of inducing a loan of money to be made, and of recompensing it afterwards when made. All commission, where a loan of money exists, must be ascribed to and considered as an excess beyond legal interest, unless as far as it is ascribable to trouble and expence bonâ fide incurred, in the course of the business transacted by the persons to whom such commission is paid; but whether any thing, and how much, is justly ascribable to this latter account, viz. that of trouble and expence, is always a question for the jury, who must, upon a view of all the facts, exercise a sound judgment thereupon. There has been much contrary evidence given upon this subject, particularly as to the question of commission properly demandable for this description of trouble and expence; and in order to set aside this verdict, we ought clearly to see that the jury have disbelieved what they ought to have believed on this head, or have believed what they ought to have disbelieved; and that they, in consequence, have erroneously considered a larger amount of commission for trouble and expence as allowable in this case, than could fairly be allowed. This, upon the fullest consideration of the evidence, we cannot distinctly see to have been the case. That there are circumstances in this case strongly pregnant of suspicion, and which lead to a conclusion different from that which the jury have drawn, cannot be denied: a striking circumstance of this kind is, that after an agreement made by the Steins at a period of great pecuniary pressure in their affairs, when advances were most necessary to them, by which agreement it had

1815.

CARSTAIRS against STEIN.

been

1815.

CARSTAIRS against STEIN.

been stipulated in terms that the banking-house of the
Kensingtons should be kept from advance in every
respect, they, the Kensingtons, did nevertheless almost
immediately become in advance for them; and though
the interest paid by the country and Scotch house, as it
is called, on such advances, was so contrived as not to
amount to more than 877. in the first three years, yet
the interest on advances during the same period to the
London house amounted to 500ol. and the commission
to about the same sum. There is likewise a very
suspicious machinery in the constitution of two houses,
(under different firms, but consisting of precisely the
same individuals,) as well as in the substance of the
dealings with them, formed, as it is said, on the basis of
there being no advance to be made by the Kensingtons,
whereas an advance, which commenced almost imme-
diately, continued in an increased and increasing pro-
portion, down to the respective failures of the different
parties. These circumstances certainly laid a found-
ation for suspecting that the high rate of commission
contracted for was a colour for usury upon loans which
were stipulated not to be required, but which were in
fact required, and made from the beginning to the end
of this business. But this question, i. e. whether colour
or not, was a question for the consideration of the jury,
and to their consideration it was fully left, with a strong
intimation of opinion on the part of the judge, that the
transaction was colourable, and the commission of
course usurious. The jury have drawn a different
conclusion, and which conclusion, upon the view they.
might entertain of the facts, they were at liberty to
draw; and they having done so, for the reasons already
stated, we do not feel ourselves, as a court of law, and
acting

4

acting according to the rules by which courts of law are usually governed in similar cases, at liberty to set aside that verdict and grant a new trial.

Rule discharged.

1815.

CARSTAIRS against STEIN.

The KING against COMMERELL and ELLIS.

THE

HE inhabitants of the parish of Slinfold, in the county of Sussex, were presented by A. and B. the constables of the hundred, for not repairing a carriage road, which presentment was afterwards turned into an indictment at the Quarter Sessions, and the names of A. and B. indorsed thereon as the witnesses. Notice was given by the parish that they would appear and plead not guilty, and try at the next sessions, which notice was entitled "The King, on the prosecution of A. and B.," &c. and was signed " D. S. solicitor for the parish of Slinfold," and was directed to the clerk of the peace and to A. and B. Notice was also given by the defendant Ellis to the surveyors of the parish to produce their accounts, &c. at the trial, on the part of the prosecution, which notice was signed "H. Ellis, licitor for the prosecution." Afterwards at the said sessions one of the inhabitants appeared, and pleaded not guilty to the indictment, and it was tried, and the parish were acquitted, whereupon the sessions made an order, entitled "The King, on the prosecution of W. Commerell and H. Ellis, against the inhabitants of the parish of Slinfold," whereby " the Court awarded

so

appear by the record of the proceedings; and the order is good in form payment of the costs to the solicitor of the parish.

and

a

indictment for not repairing highway, may by their order award C. and E. to pay costs to the parish,

although the

names of C.

and E. be not

on the back of

the indictment, and although the indictment originated in a presentment of A. and B. con

stables, whose names are on

the indictment;

and it is enough

if the order is

intituled as in the prosecution

of C. and E., ing further that

without shew

C. and E. are prosecutors;

neither need it

appear on the

face of the indictment was

order that the

tried, if that
if it be for the

1815.

The KING

against

COMMERELL.

and ordered the said W. C. and H. E. to pay to D. S. the solicitor for the above defendants in the said prosecution, 241. 6s. 11d. as and for their costs therein." The bill of costs was entitled as in the prosecution of Commerell and Ellis.

And all this now appearing upon the return to a certiorari, Courthope in support of the order of sessions, adverted, 1st, to an objection that had been made to the order, at a former time when a part of the proceedings only was before the Court, viz. that it did not appear upon the face of the order that a trial had been had; to which the Court, he said, at that time answered that if it appeared upon the record of the indictment, &c. that would be sufficient; whereupon a certiorari went to remove the record. And now he observed the record did set forth that there had been a trial, and that the parish were acquitted. 2dly, As to the objection that Commerell and Ellis are not shewn to be the prosecutors, but are only so called in the title of the order. The stat. 13 G. 3. c. 78. s. 64., which enables the court to award costs to the prosecutor or person indicted, does not prescribe the form in which they shall be awarded; and so in Rex v. Inhabitants of Clifton (a), it was holden that the judge at the trial indorsing that the defence was frivolous, was in effect awarding costs to the prosecutor. And if it were necessary to the well making an order upon the prosecutors for payment of costs, to shew that they were really prosecutors, the consequence would be that the justices must set out the whole evidence relating to that matter, which would introduce great length and inconvenience in the proceedings. 3dly,. As to the objection that the costs are awarded to D. S., and not to the in(a) 6 T. R. 344.

habitants

habitants of Slinfold, the answer is that the inhabitants as an aggregate body are incapable of having the costs paid to them.

D'Oyly contrà, objected that not only was it not shewn that C. and E. were prosecutors, but their being prosecutors was negatived, because it appears that it was the constables who made the presentment, and whose names were afterwards indorsed upon the indictment, and the parish have treated them as prosecutors by naming them such, and directing to them, and giving them a notice; after which they cannot turn round and name other persons prosecutors in their bill of costs. Neither can the sessions look beyond the record for the prosecutor, for the law has defined who the prosecutor is, viz. the person who prefers the indictment and goes before the grand jury; and therefore there is no necessity for any farther inquiry; and if there were, the sessions have not such a latitude of discretion as to be authorized to determine that a party has made himself prosecutor by giving a notice to pro2dly, The order for payment of costs directs them to be paid to the solicitor and not to the parish, whereas the statute from which alone the sessions have authority to award costs, directs that they shall award them to the person indicted. And though it may be true that here the costs could not be paid to the parish at large, and therefore possibly the order might be well executed by payment to their authorized agent or solicitor, yet that is no argument against making the order in the form prescribed by the act; for as well might it be argued that a parish cannot be indicted, because the parish at large cannot appear,

duce books, &c.

is ill, because it

VOL. IV.

P

1815.

The KING

against COMMERELL.