T 1-791 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY T R E A T I S E UPON THE LAW OF USURY AND ANNUITIES BY FRANCIS PLOW DEN OF THE MIDDLE TEMPLE, BARRISTER J T L A IF. NuUus argcnto color eft nifi temper.ito Spleudeat ufu. Hor. LONDON: PRINTED FOR J. BUTTERWORTH, FLEET-STREET. MDCCXCVII. T ^ TO THE HONORABLE THOMAS ERSKINE. JNoTHING, Sir, can more forcibly evince the importance of the fubjecl of the following Treatife, than that it once engaged the powers of your mind. A grateful Public admired the penetration judgment and eloquence, with which you warned them of the baneful effeds of Usury and Annuities, and a fympa- thizing Parliament inflandy took the cure in hand. The immoveable firmnefs of your opinions for the welfare of your country enfures me your countenance in my humble efforts to promote it. I commit them therefore with confidence to the Public under the ssgis of your protedion. FRANCIS FLOWDEN. ^SSEX-STREETj"! Dc'f, 1796. J 4 756610 C O N T E N T S, PAR T I. OF USURY. iNTRODUCTlON - - Page t CHAP. I. OF USURY IN GENERAL. Prejudices agninji Ufury — Nature of Ufury — Je^v'ijh Ufury — Opinion of Divines the Source of our Common Law of Ufury — Difference between Practice and Opinion-— What Jewi/h Ufury was as to it^s Nature and Obliga- tion — The Texts of the Old and New Tefament jhortly confidered — Opinions offome of the Greek and Latin Fa- thers againfl Ufury — Opinions of the Divines of the Re- formed Churche; — St. Thomas Aquinas and Calvin agree in it's Lawfulnefs — Horror of Ufury in the Reigns of Elizabeth and James — Chinefe Inter efl at ^O per Cent, allowed of —Papal Condemnations of Ufury — Bif})9p of Durham in the iT^th Century commanded to pay Interejl % h vi CONTENTS. by the Pope — BHef of Betiedh^t XIV again ft Ufury — General Obligation of Philanthropy — Whether the Bor- rower be Particeps Criminis — Nature of Property in general -~- Difference of the Spiritual and Temporal Pow- ers — True Senfe of the Ufury fpoketi of by inoft of tht Fathers _ > _ - Page 9 CHAP. ir. OF USURY BY THE COMMON LAW OF ENGLAND. J^oiv the Common Laiu is affected by Statutes — Lord Coke's Opinion queflioned as to the /ibolition of the Com- mon Laiu — The Repeal made by the 37 Hen. VIIL can- not apply to an unwritten Law — UjUry punifbable in the Ecclcfiaftical Courts by Common Law — Difference be- tween that Ufury which was punifhahle in the Spiritual Courts and that luhich was puniftjable in the Common Laiu Courts — The Opinions, of Bracion Gla}iville and Fleta on Ufury — Ufury allowed to the fenus by Com- tnon Law — The Statute of Merton a-ffeEled cnfy the Jews - _ - Page 60 CHAP. in. OF THK JEWS AND JUDAISM BY THE LAWS OF ENGLAND. Of the IntroduStion of Jews into England — Obfervations upon their State of Vagrancy — Ofthefirfl Law concern- ing them in England —Nature of Laws concerning Re- ligious Belief— JVh.it was Judaifin by the Laws of Eng- land — Prejudices of our Hijhrians againfi the Jews — I They CONTENTS. vil They acquired a Settlement tmder Richard L — Neii/ Laws for the Jeius ; they ivere governed like a CorpO' ration by Bye-laivs — Opprejfed by Hen. III. — His Pre^ rogative checked hy Parliaments appointing a Judge over the Jews — Nature of the Crimes imputed to the Jews—' Henry nUs Reafons for opprejfng the J envs— Statute de Judaifmo — Lord Coke's Comment upon it — Prynne's Difference from Lord Coke about the volu7itary Banifn- ment of the Jews — // appears to have been compulfory by Parliament — Alteration of the Laws concerning thejews — For the laji 505 Tears no other Acis pajpd concerning the Jews butfuch as are beneficial - - Page 83 CHAP. IV. ©F USURY BY STATUTE LAW. Statute of Merton 1235 — Two Acts in the third Tear of Henry VH. ch. v. and ch. vi. and another Act in 11 of Henry VH. [c. viii.) 37 Henry VHI. c. ix. 5 and 6 Edward VL c. xx. — Obfervations and Debates upon the AB: of Elizabeth. 2 1 Jac. I. c. xxii. 1 2 Car. H. c. xiii. J 2 Ann. c. xvi. 3 Geo. L c. viii. - Page 125 CHAP. V. WPON THE DETERMINATIONS OF THE COURTS IN CASES OF USURY. Nature of the Difference between Ufury by Common Law and by Statute Law — What Acts and ContraEls the Csurts have determined to be Ufuriotu — Corrupt Con- a 2 tra^ mi CONTENTS. traB and Corrupt Taking ivithout fiich Contract — Csr- rtipt Bargain and Taking completes the OJfence, for nchicb the Statute gives treble Damages — How far the Common Law and Statute Law co-operate upon UJuri' ous Ails — Of Corrupt Agreements toithout taking excef" five Interejl and vice versa — Examination of Lord Chief Ju/iice De Greys Opinion upon the Requifites to confiitute the Statute Offence — No ABion will lie at Common Law for Inter efi or U/ury — Attempts and Shifts to evade the Statutes of Ufury — Fur?iifhing Goods inflead of CaJJjfor raifing Money on them Ufurious — Every Excef s of legal Iniere/1 in Value as well as Money UfuriouSy if the Party intend to make more than legal Inter efl — Ufage of Trade fcmetimesj uf.ifes the Taking of more thafi 5 per Cent — Ufury often depends upon the In- tention of negociating Parties — Whether the Interejl may he withholden at firfl — Of dijcounting Notes — Of taking exceffive Inter efl on Default of Payment on a given Day •—Where Principal and Inter efl at Hazard no Ufury^ Bottomry Bon-ds and Loans on Contingencies and hazard- ous Bargains — Slight Hazards take not a Cafe out of the Statutes — IVhether a Lean neceffary to confiitute Ufury? — Nature of Continuation Premiums — The Intent makes Ufury — Of taking b per Cent, on Securities in Ireland and the Wefl Indies — Of perfonal Contra Els entered into in Foreign Countries — Redrefs and Remedies of Ufury — UjUrious Contract avoids the Security — Whether void Securities valid in the Hands of Third Perfons not privy to the Ufury — Borrowers may avoid their own Atts in Ufury _ _ - . Page 145 PART [ ix ] PART II. OF ANNUITIES. CHAP. I. OF ANNUITIES IM GENERAL. POLITICAL Tendency of Life Annuities ^particularly as to Members of Parliament — Hoiv Advantage taken of Dijlrejs to he conjidered — What Antiiiities and Rent Charges — Annuity by Prefcription — Eftecis of the Re- medies for recoveriv.^ an Annuity — Ho%u Grants operate ivith or luithcut the Word Heirs — How Grants void as Rent Charges may be good as Annuities — Hoiu Annui- ties may be offeBed : they are affignable — -Of the Election and hoiu determinable by the Grantee — Hoiu they become. extinEl — Of the Remedies — Where Writ of Annuity liethf and ivhere Debt — Where Lands lie in divers Countiesy no Affize hut Writ of Annuity lieth. Page 227 CHAP. II. OF ANNUITIES FOR THE LIVES OF THE GRANTORS. Intent of the Chapter — Propriety ofimpofing legal Refraints in Aloney Loans — Fatal Confequences of raifing Money a 3 hy r CONTENTS. by Life Annuities — Ofrefcinding the Contract s for Annui- ties — Of Circumvention and Fhyfical and Moral Necefftty — Effects of raifing Aloney by Annuity formerly and novJ •—Whether Annuities caii be UJurious : Lord Hard- nviche's Opinions upon thefe Tranfoclions — Cafes in ivhich Annuities ivere n-^t Ufurious — Of the Claufes of Redemption or Re -pur chafe havirjg been once thought UjurioHS : notu holden jiot to be Jo — Whether Infurances render the TranfaElions Ufurious — Of the Adequacy of the Coufideration of Annuities — Bare Inadequacy of t* rice tiot fufpcitnt to rcfcind an Annuity in Law or Equity — Of illicit C(.uf derations — Of Annuities charged upon Officers' Pay and Haf-pay^ and Clergymen's Livings — - The Difference of Whole and Llalf-pny no%u exploded — • Neither of them affignable — Clergymen s Livings not affignable or chargeable by Common Statute or Cation Law — Of avoiding Annuities charged on Livings and fecured by Bond and Judgment - Page 249 CHAP. III. OF THE ANNUITY ACT. IntrcduBion cf the frf Bill to Parliament by Mr. Wed- derburne i"]"]] — It's Nature and Obje^s more general than the prefent Acl — Progrefs of the Bill — Divfcn of the Plan — Firfl Bill di cpped—New Bill brought in — Committee appointed to con fide r and report upon the Laws concerning Ufury — Their Report and another Bill brought in upon it to regulate Annuities for Lives — // ivent only to a Committee and there dropped — Notoriety of the Tratf- a a ion a principal Object of the AB— Nature and Equity of the Acl— Of the Preamble of the Acl— Of thefirf Scc~ ttin CONTENTS. xl tion cf the Act — Difference between Regi/lery and Inrol- nient of Deeds — Great Cantlen in the Lepjlature to ren- der the Tranfaclion notorious — The particular Qbjc3s of the AEl — Of the Cofftderatian of granting the Annuity and whether the Law Expeuccs and Premium make part of it — Offecret Trufls in Annuities — Of the fcccnd Sec- tion of the Jcl — Of the third SeBion — Of the IMeaning tfthe Conf deration hemg'm Money only — Offpecifying the Names of Parties and the Alodes of Payment and to whom in the original Deeds — Of the fourth SeBion ivhich is of a complex Nature — Fifth SeBion of the A61 — Sixth SeBion — Of ContraBs being avoided — Seventh SeBion—' Eighth and lafl SeBion — Of the Exceptions — The Ex- ceptions of Annuities granted by Tenant in Tail and in Feeftmple introduced by Sollicitor General : jwt to be ex- tended beyond theJiriB Words of the AB - Page 3 1 6 C H A P IV. OF THE DETERMINATIONS OF THE COURTS UPON THE ANNUITY ACT. Of the Tyrannical Principle ef giving Operation to ABs cf Parliatnent Jrom the firfl Day of the SeJJlon even before they were framed — Several Jnjlanccs cf the bijuf ice ope- rated thereby — This Jnjuflice put an End to by the 33 Geo. in. — Every Deed to be inrolled by which an Annu- ity is fecured — Warrant of Attorney fuch an Affurance — The Judgment not fo — Of regijiering Affignmcnis — Of fpecifying the Dates of the Deeds and the Names of Wit- neffes in the Memorial^ and all the Trufls of the Deed — Inconfi/lency of the Decifions upon all the Trufls being ft forth — Of the Ccifuleration of granting the Annuity — Of i 4 Banker ^ xii • CONTENTS. Bankers' Checks attd Promiffory Noies — Bank Notes taken as Cop — Offpecifyhig the Mode of paying the Con- fideration — Offetting it forth falfely and the Confequen-, cesofit — Of paying the Confideration at different times ' — Of the Terms of the ContraB making a Part of the Co'ftderation — Of the Law Charges making a Part of the Confideration — Of the twenty Days given by the Statute for regiflering — Difference of Opinion of the King's Bench and Common Pleas upon the Neceffity of inrcUing an /ffignmcnt — Of one Annuity's being the Con- fideration of another — Of the Difference between the firfl and the fourth SeBion of the A3 — Of all the Deeds being void by the Nullity of one of them — Of fating in the Deeds the Names of the Agents ivho pay the Confi dera- tion- Money — Ofthejurth Section — Cf retaining a Part of the Confideration — Of the Perfons ivho may apply to. the Courts for Relief under the fourth Stciion — Of being barred by Length of Time and Laches of the Parties — Of the Court's Dijcretion in entertaining Applications—' Of the Difference in the Opinions of Lords Loughborough and Kenyan upon the Umitation of Time — Of the Pro- vince of the Courts — What Courts may entertain Ap- plications under the AB — Of the JurifdJBion of the Courts with cr without ABions commenced — Whether Grantors who do not confefs Judgments be precluded from the Benefit of the AB — The Courts aB upon the Cafes within the Statute according to their original J urifdic- tion— Of the CcntraB with Minors being avoided — : V/hether all ContruBs he avoided where the Securities are null — Of the Punif}j?nents of Mifdcmeanors under the AB—Ofthe Cafes excepted out of the Act - Page 352 A L P H A= ALPHABETICAL LIST CASES QUOTED IN THIS TREATISE. A AnCASTER Duke of V. Pickett - - 171 ^dlington 1^ Cann and Andrews - - 174 Auriol and another f. Thomas - - 179 Abrahams qui tarn I*. Bunn - - - 216 Ardglafs V. Mufchamp - - "283 Attorney General v. Panter - - 355 Aullin 1;. The Executors of Sir WiUiana Dodwell - 376 B Brown V. Fulfbye - • • ij6 219 Body v. TafTel - - 156 219 Barker 1). Vanfommer and others • - 169 Barnes v. Worlick - , - " ^ 77 Benfon v. Parry - - - 1 79 Bodily V. Bellamy - • 180 208 Burton's Cafe ... 183-5 Bedingfield v. Afhby - - 191 Ballard 1;. Oddie - - - 20 1 Boothe V, Cooke • • - 30l Bucler V. Miller - • - 2Ci Bufh XIV LIST OF CASES. Bufh V. Buckingham Bulkley T/. Gailbank Browning v. Morris Bowyer v. Bampton Bofanquet v. Dafhwood Bede V. Sanderfon - - Bodvell V. Bodvell . - - Brown V. Richards Berney v. Pitt . . . Butler and Parnell affignece of Edward Richardfon a bankrupt - - - Page - 20I aoi 265 210 215 - 214 215 217 - 223 236 470 283 290 Bolton Duke of v. "Williams 405 425 Broniley v. Greathead Berry v. Bentley Broomhead v. Eyre Bellingham v. Alfop Berwicke 1;. Read Beauchamp v. Barret 314 560-4-5 386 396 399 - 365 400-1 - 377-8 - 391 407 410 450 -. 411 - 433 - 442 Chefterfield v. Janfon Cecil V. Sutton and Roundtree Cotterel -v. Harrington Clarkfon v. Hanway Coles -y. Gibbons Crow V. Ballard Cole V. Gibfon Crouch V. Martin Carter "v. Claycoles CoMfms V. Thomfon Cox T'. Wright Chefter ex parte Craufurd 1'. Gaines Crefpigny v, VVittenoom 162-6 188-9 259 261 277 283 - 170 - 262 - 2S3 - =83 - ^83 - 285 - 289 - 300 376 393 4'6 - 379 40S - 395 4*5 - 426-8 - 441 450-5 Davifoo LISTOFCASES. xv D Page Davifon v. Barnard Pitt - 170 Dewar and Span - 205 Dixy's Sir Woolafton Cafe - 218 222-3 Davidfon v. Foley • 3H Z^9 366 39) Dann on dem. of Dolman v. Dolman - 357 370 Dixon V. Birch and Toyte - 565 401 Downes V. Packurit - 366 E Ellis v. Warncs - 213 Emmott and Fulvvood's Cafe - 321 F Fifher qui tarn, Sec. 'v. Beafley - 152 218 Floyer and Edwards - 163-6 173 Fitzroy v, Gwillim - 217 Fermor's Cafe - 219 Fofter'a (Dr.) Cafe - 221-3 Fullwood V. Ward - 341-a Fountain v. Grimes - 260-7-8 Fuller's Cafe - 262 Floyard -y. Sherrard - 279 Fox "V. Mackreth - 2S3 Flarty v. Odium - ^-94 5-6 433 Fcnner v. Evans 379 384 Fallon ex parte - 3^:^ 394 tC2 Franco n^. Linda - 442 G Garratt v. Foot - 184 Le Grange v. Hamilton - 202 Goldfmith v. Bunning • - 214 Gerard v. Boden - 239/ Goad's (Dr.) Cafe - 261 Griffith V. Spratley - 276 Guynnc LIST OF CASES. Page Guynne n>. Hcaton - - 280-3 Grainger v. Wyvill - - 290 Gomez v. Graham - - 290-3 Grant v. Folty - - 399 401 4^4 419 Garrood v. Sanders H 410 4ZI 425 431-5 Hodges V. Lovatt . - 217 Van Heubeck's Cafe - 219 Harning v. Caftor - - 219 222 Hooper "y. Lawley - - 265 Heathcote v. Paignon I . - 276-7-80 Henly v. Adon - - 280 Harrington v. Da Ch attcl . 28s Hill V. Good - - 299 Hunt V. Singleton - - 300 Hodges V. Money an d Bailey - 3H 359 393 Heart v. Lovelace ■ 3: [4 366 398 430 432 Henley Sir Robert v. Jones - 35S Hopkins V. Waller "m - 355-9 395 Hall ^. Whalley - - 3>5 Hood 'V. Burlton - " 358 367 Haines v. Hare J • - 421 Jeftons 1-, Brookes - ' 173-5 Joy V. Kent - - 190 Jaques «y. Goligbtly - - 216 Irnham v. Child » - 271 422 James v. Morgan - - ^83 Jaques v. Withy - - 381 Ince 1'. Everard K - 383 The Krng v. Walker • - 157 8 3T» Ditto V. Upton " - 157- King LIST OF CASES. nvll Page King V. Dnny - 262 Keen v. Stukcly - 279 Kennedy, Captain, a bankrupt - 294 Kirkman i'. Price - 380-5 The Kinrr . Abdy' ... 1^2 Maund's Cafe - - - 239 Mingie'sCafe - - - 243 Mortimers. Capper - - - 280 Middleton et Uxor ^•. Croft - - 298 Miller Saunders i>. Hardinge - - 361 396 409 412 Sherfon 1;. Oxlade - .36s - 376-8 - 381 43S 440-1-3-4-5-6 447-8 - 382 416 Sowerby v. Harris Sliove and Webb Symmonds v. Mortimer Sawyer v. Bunce Steadman ^•. Purchafe Straton 1'. Raftall and others Shrapnel v. Vernon - 385 - 38J 440-1.3.4-5 - 4J3 Tanfield i>. Finch Tate V. Williams Tomkyns 'v. Barnet Twifleton v. Griffiths Toldervy and Allan Thurkill 26 Aitti fecure read //. PART I. OF USURY. V INTRODUCTION. f publics^ tion. J- HE fubied of the followinc; fheets afFeds ^"'■o"».« -* o the public! fo many perfons of various defcriptions, that no apology is requifite for introducing it to the notice of the public. A free and extenfive circulation of property neceflarily creates advantages to the pofTeiTors of it, that flu6luate and vary with the lofles, wants, and diftrefles, of thofe who poflefs it not. In the imperfect ftate of corrupt man- kind, it is beyond the power of legiflators to dire£t or control the feelings of indivi- duals in fuch a manner, as to punifh the mere omiffions of ads of philanthropy. Something hov^ever of this nature has been attempted by our legiflature in prohibiting what it calls Ufui'y ; which it has declared or made an offence of fo deep an hue as to have engaged the prepoflTellions of moft men, B and A INTRODUCTION. and direded the paflions of many agalnft it. Where on one hand a numerous clafs either through misfortune or folly have been brought to the painful necefnty of ralfing montj upon hard terms, and on the other hand a fniall number of men reap profit and advantage from the difallrous clrcumftances of their fellow- creatures, it Di^.cnUy of ^[\\ be hardly pofTible to treat the fubjeft bundling the ■' ^ •* fabjeftwith- ^f- ^\\ without difpleafinsT or offendine; either Out offence. 1 O o one fet or the other. For a fubject pro- du£llve of fuch defperate effects will be rarely viewed, but through the medium of extreme prejudice. It is unqucftlonable, that the law of England as founded in the law of nature ever has difcountenanced, re- prefled and puniflied e\'ery fpecies of hard- ihip cppreilion and extortion in mon^y tranfadiions : but it is fcarcely warrantable to aifert, that thefe offences can be fairly comprefTed into the frequently uttered, but feldom thoroughly underfcood term o^Ufw'y, That all diflrefTed men hold Uftiry in abhor- rence may be readily granted : that many opulent men cry down in public, what they pradtife and fupport in private may be eafily proved. And were the legiilature to call 3 fby INTRODUCTION. for declarations of trufl: upon all fums of money now actually lent out upon hard and opprellive, if not ufiirious terms, they would develop many additional and power- ful motives for bringing the fubjed: under the eye of the public \ It would be cenfurable, in defiance of the mod formal ads of the leglflature, to pre- fume to reprobate the reftraints raifed by the laws againft all exorbitancy of demand in pecuniary loans and advancements. As scheme c^ the work, therefore I confine myfelf to the mere quef- tion, where thefe reftraints begin and where they end : in other words, What is and what is not Ufury^ I confequently fupprefs many, obfervations, which forcibly affedled my * I am much encouraged in my purfuit of this obje6l by feflefting, that it once engaged the moft brilh'aut talents of the Eiighfli bar. Mr. Erflfine in 1776 publifhed his reflec- tions on gaming annuities and ufurious contrafts. His pene* tration difcovered the extent of the evil, and his truly puWic fpirit broke forth into that admirable flame of eloquence, iu which he warned his countrymen againft it. " A gamefter," (fays he p. 14.) '< without his Jew is thia lamp without oil, this ** fhip without water. If the money cojjld not be had in the in- " ftant by the fale of annuities, or by ufurious contracts, the '• fit would go off, reafon would return ; and hctle mifch/cf 19 *' done, where the prefent is only loft, and the future remaing •* unanticipated." / B 2 mind 4 INTTvODUCTI 0>f . Mr. Ben- mind 111 reading; the ino;enious Mr. Bentllam'3 tnam s De- (J O ufurV^ Defence of Ufury '. The fiibftratum of hia reafonlng upon the fubjed: is the afTumed rij^ht of man to difpofe, as he pleafes, of his own property. It appears moreover a fpecious argument, that no man is compella- ble to lend his money : and no one vvill apply for it, but he, who wants it : the bor- rower therefore receives a benefit, not an injury, who by the loan procures a fupply in his mod urgent neceillties. In civilized fociety this reafoning appears too broad ^. Propertyihe Protertv of cverv denomination in it's ori- ereature of J -^ ■' uieitate. gj^^ ^j^^ \^ ^\\ j|-'g proximatc and remote efre6ls is emphatically the creature of the fovereign power. The fole duty of the civil magiftrate is thefuperintendance of the peace and welfare of that community, which de- legated to him his power and truft. Where- ever the difpofition of property can affect the peace and welfare cf the community, * Defence of Ufuiy, {hewing the impolicy of the prefent legal rL-ftraints on the terms of pecuniary bargains, &c. by Jeremy Bentham of Lincoln's Inn, Efq. ■^ By this I mean permanent and circulating property : and not fuch as perhaps might have been acquired in a (late of na- ture by aftual occupancy and mere manual induftry or labour. i there INTRODUCTION. 5 there all claims and rights of individuals upon that property yield to the tranfcendent right of the civil magiftrate to model and difpofe of it for the good of the community in that manner, which to him fhall appear mofl expedient. Upon thefe principles are formed all laws, which affect the dif- pofition of property by way of acquifition alienation or loan. It is becaufe property i« efTentially the creature of the fupreme civil power, that no individual In any ftate can acquire it, hut by virtue of the laws of that ftate, to which he is fuhjed:, alienate it but in the manner and to the perfons and under the conditions, which the laws of the ftate allow of, or lend it but upon the terms, which they prefcribe. With reference to the general abftra^ted ufury oot import or the term UJuiy m the linglilh law, fui. I readily accord with the learned defender of Ufury ^ that in the original and known accept- ation of the word, Ufury is not of itfelf im- moral or hnful (I fpcak not of opprefTion or extortion) ; that is, it neither countera<^s the law of nature, nor is it prohibited by the re- vealed law of chriftianlty. Independently therefore of any municipal reftraining law, B 3 ii ^ INTRODUCTION. it IS unqueftionably true, that every indivU dual pofTeffing money is at full liberty to make what advantage he can of it without injuring his neighbour. This general fo- cial right is precilely fuch, as the fovereiga civil power can at all times control. For if Ufury, or the taking of any advantage or profit for the loan or forbearance of money militated againft the law of nature or chrif- tian revelation, the legiflative power of any flate could not add to the confcientious im- morality of committing what, in that cafe would be the crime^ whatever penal reftrlc- tions and punifhments they might impofe upon the delinquent. But the mod infa- tuated devotee to the civil power has never even pretended to allow it the right of fand:ioning in any degree aii a£l, which even obliquely clafhes with the laws of na- ture and grace. It is undeniable, that the fovereign civil power can only exercife it's control over thofe afts of man, in the per- formance of which the laws of nature and the gofpel have left him indifferent and free. It follows then as a corollary, that the fupreme civil power of each ftate can slone regulate and fix the pofleffion value fecurity INTRODUCTION. 7 fecurlty loan tranfer and circulation of money throughout it's jurifdidion. It rarely happens, that a lender of money openly takes more than the legal intereft upon the loan. Many however have been the devices of UTurers to evade the force and effeds of the laws ggalnfl Ufury ; and thefe it will be requifite to look into. But the traf- i^n^KV fie of buying and felling annuities is fo fa- nuUi?sf ^'" tally prevalent, that there are few landed cftates now under fettlement in this country, which are not liable to (ome fuch incum- brance. Now the raifmg of money by the fale of annuities for the lives of the grantors is a fpecies of loan or accommodation of money bringing to the lender, or to him who ad- vances the money, a much larger profit, than 5 per cent, v/hich he is allowed by law to make of it; and Mr. Erfkine therefore juftly calls them (p. 24.) Evafions of the Statute of Ufury, But ''^ Aiimiitics^'* continues he (p. -26.) *' for the life of the " feller, which are far the more common, " and for w^hich feldom more than fix years *' purchafe is given, cannot be defended on any principle of public utility or focial B 4 *' ad van- id INTRODUCTION. advantage : and common fenfe will in* form the moft fimple apprehenfion, that every contrad, which cannot reft itfelf on one or other of thefe principles, muft be difhoneft imjuft and deftrudive of the fpirit of every human intercourfe, which is general and reciprocal benefits." PART P" PART I. C H A p. I. OF USURY IN GENERAL. CONTENTS. Prejudices agatnjl Vfiiry — Nature of Ufury — Jewijh Ufury — Opinion of Divines the Source of our Common Law of Ufury — Difference between PraBice a?id Opinion — What Jeiuijh Ufury %uas as to it''s Nature and Obligation — The Texts of the Old and New Ttjlament ficrtly ccnfidered — Opinions of fome of the Greek an i Lali i Fa- thers againji Ufury — Opinions of the Divines of the Reformed Churches — St. Thomas Aquinas and Calvin agree in it's Lawfulnefs — Horror of Ufury in the Reigns of Elizabeth and James — Chinefe Inter efl at ^o per Cent, allowed of — • Papal Condcjunations of Ufury — BJIiop of Dur- ham in the 13//^ Century comm.uided to pay Interefl by the Pope — Brief of Benedict XIV a^ainjl Ufury — General Obligation of Philan- thropy JO A TREATISE ihrdpy — Whether the Borro'wer he Particeps Criminis — Nature of Property in gciieral"^ Difference of the opiritaal and Temporal Powers — True Senfe of the Ufiiry fpoken of by vvfi of the Fathers, OUCH have at all times been the general pre- pofleffions agamfl Ufury and Ufurers, that it is Talnft'"^ fcarcely poffible to fpeak temperately upon the ^iixxy. fubjecl without giving fcandal or offence to a large portion of mankind. If we form our opinion of Ufury upon the general do(5i:rine of divines, or the rigorous feverity with which legiflators have generally punifhed the Ufurer, we fhall neceflarily place it at the head of the foulefl table of offences againft God and man. Ufury has almofl in every age and every civi- lized country been the invariable theme of ,cenfure to the moralift, of perfecution to the ilatefman, of eternal reprobation to the divine. The inveffigation of it's nature and effeds mull therefore be proportionably candid and unblalfed, as the fentiments and feelings of mankind have by prevention been worked up to the execration of it's turpitude, by a combi- nation of all the meanSj which moft powerfully operate upon mind and confcience. ^ ^^ The original and mod extenfive import of Nature of (he word Vfury means the letting out or lend- ing of one's property to others for hire gain profit ON USURY. ii j>rofit or reward ; under this fenfe or accepta- part i. tion of the term were the ideas of Ufury con- chap. i. ceived, which have been entertained and hand- ed down in fucceffion from the earliefl: periods of chriflianity to the prefent century. The .chriftian horror of the crime of Ufury evidently iappears to have been engrafted upon the flock of the Mofaic prohibition. Of the furprifmg bearing of this proHfic fcion from theological culture, I Qiail fpeak more explicitly htteafter. •The law of Mofes was a compound oi fpiritual and civil government, which rendered many of it's injundions inapplicable to or inexpedient and mifchlevous in. any other (late, where the fame alliance between church and ftate did not exifl. The Mofaic fyftem was not framed for Difference perpetuity like that of Chriftianlty. The v.'hole and Mofaip had been fulfilled and was put an end to, when our divine Redeemer expired upon the crofs. From that time no part of the Jewifh law, •which was not obligatory upon all mankind be- fore it was delivered to Mofes, continued to be binding on the confcience of any human indi- vidual ; unlefs perhaps upon fuch of the Jewifli nation^ as continued that civil form of govern- ment, to which the Mofaic rites ceremonies and ordinances were adapted. There has been fome, though not very gene- ral difference between the fchoolmen about that tjTur^- ic A TREATISE PAUT I. that Ufary, which was prohibited by the law CHAP. I. of Moles. In Deut. xxiii. 19. 20. God ex- ]cwi(ii prefsly forbids his people to lend money, vic- tuals, or any thing elfe to their Jewifh brethren upon Ufury, though he allow them to make fuch loans to ftrangers : but enjoins them to lend to their brethren whatever they want with- out Ufury, i. e. without any profit gain or re- ward. (Exod. xxii. 25.) He forewarns the jews, when they lend money to any poor, that dvv^ell amongft them, not to be hard upon them as extortioners nor cpprefs them with Ufury. And again (Lev. xxv. 36. 37.) he exprefsly prohibits Ufury for money or any encreafe for viduals : he commands his people not to take more, than they gave^ It appears then to have always been the more common opinion, that the Jewifli law permitted no degree of Ufury what- foever amongft their countrymen or fellow citi- zens : that it was fmful in any Jew to take even the mod moderate Intereft for the money he lent to another Jew. The diftinction therefore, which probably exifts in the mind of moil En- gliOimen at this day, between lau'ful and un.- lawful Intereft (or Ufury) from it's rate could not have exifted amongft the Jews, whilft they were fubjedt to the lava's of Mofes. On the other hand they had a diftinclion between law- ful and unlawful Ufury wholly unknown to us : that O.N USURY. i^ that is, of Intcrefl or Ufury arifing out of a loan part r. to an alien, which would not have arifen out of ^^^'_^ a loan to a native. They -were not feinted by law Difference ^ , ofUiury to any particular rate of the Intereil, which they amougn tba were allowed to take from the alien. We, who ourfcivss, are by law allowed to take a certain rate of In- tereft or Ufury, cannot exceed It any more in negociating with the alien, than with our native countryman. A mere loan then at Interefl of upon Ufury appears not from it's nature cri- minal or fmful before God. The acl becomes lawful or unlawful only by the pofitive inllitu- tion of particular municipal laws. What is of it's own nature fmful or unjufl the civil magi- ftrate can neither palliate nor fanclion. A6ls of injuftlce and fm change not their nature, but only the degree of guilt by the plus or the minus. To whatever excefs they run, they retain their efientlal quality of fm and guilt. The robbery of one fhilllng or of a thoufand pounds is the fame fpecies of injuftice to my neighbour and offence to God : it equally requires atonement by reftitutlon to my neighbour and repentance to the Almighty. So faid the mod inveterate enemy of UI"ury, Dr. Wilfon ' : " There is no " mean in this vice, more than there is in mur- ' A Difcourfe upon Ufiirie by waic of dialogue, by Thoraa* Wilfon, D. C L. &i;. 1584. « dcr i4 PART T. cha:\ I. Our Com- mon Law arifes out of the pre- polTeffi ;),..■; ofourancef- tors. A TREATISE *' der theft or whoredom. And therefore I fay " and maintalne it conflantlie that all lending ^* in refpe6l of time, for anie gaine, be it ever '* fo little is Ufurie, and fo wickednefle before " God and man and a damnable deed in itfelf." It may at fir ft appear irrelevant to the difcuf- fion of a point of Engliih law, to take under our confideration the opinions and fentiments of other writers, than thofe upon the laws of England : but when we reflect, that our com- mon law, which is nothing elfe, than immemo- rial ufage, muft from its nature have originated from the commonly-received opinions fentiments' and even prejudices of our anceftors, it may not be deemed foreign from our piirpofe to trace to it's fource the general prepoflefTion of mankind againft Ufury ; by which v/e fliall account for the common and j}aiute laws of England concerning it. I fhall not attempt to notice the extravagant conceits of thofe, who have argued againll the moral lawfulnefs of Ufury from the natural fterilicy of money, which has not been gifted by the God of nature with genitive or procreative faculties. Many other eccentricities equally wild and abfurd have furcharged the heavy folios of civilian canonical and theological writers upon Ufury. As however for many centuries the whole chriflian world was in a manner influenced and dire<3;ed by the clergy, who had monopolized all leariiing ON USURY, i^ learning within their own body', it was natural part r. that general fubmifllon fhould be paid by the ^^^J- \ ignorant to the opinions propagated by the learned. It may then be truly faid, until the Theoiogicat prefent century, to have been the ccnwiunis cpi- ufury. nto iheologortnn, that every fpecies of Ufury is palpably unjuft in it's nature and a grievous of- fence againft the law of God and man, ^ quod plane inK^iium ejl et grave pec cat um contra jus humanum et divhmm. The definition of Ufury, from which this damnatory fentence is deduced, goes to every poflible profit or advantage made by a loan. ^ Efi lucrum immediate frov .nuns ex miituo. In the like fpirit and under the like imprefTion has Ufury, down to the days of Eliza- beth, been always treated by parliament as a horrible vice and as fni and deteftable to God. Now it is evident that no human legillature whatever can in any degree countenance fan£lion or authorize, that which has the nature of iin and is of courfe deteftable to God. ' I read with indignation the bitter inve<5tivcs of fornc modern authors againft the monks and clergy of pad ages. Evqry lover and promoter of learning, fhould be loud in ex- prcfliBg his grateful admiration of that body of men, to v/hofe induflry and labours we owe the tranfmiffion of many grounds of that knowledge and fcience, which we nowr yofTefs. » Theol. Moral. La Croi::. Tom. III. L. iii.Par. i.DcUfuri. ' Ibi'letii> t6 A TREATISE PART I. CHAP. I. Difference between theory and pradice. It is obvious that where opinions are fo iigo^ roufly fevere in the condemnation of a pradice^ which univcrfally prevails with all ranks and de- fcriptions of perfons, from the heedlefs latitu- dinarian to the flricleft morahft, the fubje6l calls for flrong eclairciflement. Who againft th© univerfal pradice of every civilized nation, will condemn the receiver of any profit or advan- tage for giving time of payment of a horribJe , Z'i.e and fm contra jus hv.manum et diinnuyn ? for according to that dodrine, fuch receipt confli^ tutes the crime of Ufury. No fubjeci within the fcope of ethics ever difplaved fo glaring a difcre-- pancy of theory and pradice as Ufury. This efcaped not the obfervation of the thoughtful La Bruyere '. " 7/ y ^ depuis I o rig-temps dans le " monde line ?naniere de faire valoir Jon bieUy qui '* continue ioujoiirs d'etre prafquee far d^honnetes " ger.s^ et d'etre condamnee par dhahiUs doc-^ *' teiirsJ' He might perhaps without offending truth have united the practice of the honeft man and the condemnation of the learned doftor in the fame individual. The alternate inference however is truly ferious. Either the error is taught by learned divines, or injuilice is prac- tifedty honeft men. Highly beneficial will it be for fociety to remove the indecifion upon fo important a fubjeft, that puts in hazard the fal- vation or the fortune of fo many. My view is ' De Diverfes Ufagesr t« CHAP. I. ^ ^ — ^ 5n usury. 17 to afcertain the nature of that Ufury, which part r. was the real object of the cenfures and invec- tives of the firft fathers of the church and of fome more modern divines : and to fhew that an inconfiderate, though zealoufly intended ex- tenfion of the word Ufury has been productive of this melancholy variance between the ufage and doctrines of the moft ferious and refpeclable part of chriftianity. It was a conftant complaint of all the mod violent declaimers againft Ufury, that when the diflemper was fuppofed to be at it's acnie, the prevalence of the ufage w-ore off in a great meafur^ the turpitude and foul- nefs of the crime. To prove which Dr. Wil- fon ^ quotes what Seneca faid (de benef. 1. 3.) Pudorcm rciiollit muUitudo peccanUivn Pt definit clfe loco peccati commune malefadum, Et alibi : Cef- fare public a jura peccatis et cocpit licit um ejfe quod piiiiicum eft. Generality of practice is no juflification of the rectitude of an ufage : but it is fo ftrong a prefumption in favour of it, as to impofe a fnofl: ferious duty upon thofe, who undertake the difcuffion of the ufage, not haf- tily to condemn it as immoral or finful either in it's nature or tendency. There is fomething fo awful in the appeal io fcriptural authority, that no caution and reve- tence can be too great either in adducing or re- ' Wilf. of Ufurie, 172. C jeding iS ^ ATREATISE jelling it. For amongft Chriftlans this can be attempted upon no other ground, than that of it's inapplicability to the fubjedl. The lawof Mo- fes certainly contained a prohibition to the Jewg to lend upon Ufury or at Interefl to one another, and exprefsly allowed them to take Interefl or whetiier Ufufy from a flranger. This difference between liono^ufu-' the Jew and the Gentile affords internal evi- verf!i°!no'ra'i dcncc, that the prohibition was not a law of in- abiigauon. difiDenfible and univerfal moral obligation. If it had been fo, it would have obliged all man- kind as well as the Jews. Now if the taking of Ufury-y^ere abfolutely againfl any of the com- mandments or thofe moral precepts, which pre- exifled and furvived the Mofaic legiflation, it muff be againft the law of nature, which God has implanted in the breaft of every rational creature, iind which may be therefore known by the mere light of reafon. ^ For nvhen the Gentiles^ which have not the law do by nature the- things contai7ied in the law^ ihefe having not the law are a law unto themf elves ; -who jloew the luork of the lazu written in their hearts. If the taking of Intereft or Ufury upon a loan were of itfelf evil and prohibited quia malum in Je ; it could not have ever been allowed of under any circumffances whatsoever . It appears there- fore evident, that the ftrangers, to whom God * Rom. lu 14. I J. permitted On usury. i9 Jjermltted loans to be made on Ufury, \vere gC- ^ART^ nerally all perfons, with whom the Jews could , ^^ ' \ have any intercourfe or commerce for their mu- tual advantage; and not as Sir Edward Coke ' ob- ferves, hccaxifs it was a mean either to etcterminaie or depauperate them, as they Jljoitld not be able to invade or injure God's people. St. Ambrofe has alfo viewed the ground of this prohibition in the fame point of view, alleging, that God only per- mitted his people to praclife Ufury againft their enemies whom he had commiffioned them to deflroy. * " There fays he, take Ufury, whom " you may lawfully wifti to hurt, againft whom " you juftly bear arms, from them you may le- " gaily demand Ufury. Whom you cannot fub- *' due in the field, you may foon diftrefs and " avenge yourfelves of by Ufury. Take " Ufury from him, whom you may lawfully " kill. Wherever therefore you have a right to *' wage war, you have a right to take Ufury." Ab hoc Ufura?n exige, quern non fit crimen occidere. Er-:^o ubi jus lelli ibi etiam jus Ufura. It is clear from other texts in holy writ, that ,,., » -' ' Whatjev/i this permiflion to take Ufury from ftrangers, JJI^^'"^,'^ was not a mere inftrument of vengeance and *"'''^' deftrudion confided to his chofen people by the Sovereign of the univerfe for exterminating their • 3 Inft. 151. ^ Lib. de Toh. c. I 5. Vid. alfo Dr. Wilfon, fol. 23, who quotes part of this pafTage. C 2 enemies. 20 ^ A TREATISE enemies. On the contrary it was a tempora! and permanent advantage, which God held out as a reward to his people to allure them to the obfervance of his law. (Deut. xv. 6.) " For the Lord thy God blefleth thee, as he *' promifed thee ; and thou flialt lend unto many " nations^ but thou (lialt not borrow." Can the enjoyment of an a^ft immoral in it's nature be the reward, which God annexed to the obfer- vance of his commandments ? And if thefe loans, which were to be made to foreign na- tions were without interefl or not made upon Ufury as fome have argued, then the whole advantage would have been on the fide of the borrowers, and fuch loans made by the Hebrews would have been a lofs and detriment and not a reward. This is confirmed by the repetition of the reward, (c. xxviii. v. 12.) And thou J})ah lend unto many nations and theujhalt 710 1 borrow : and by inverting the promife into a curfe. (v. 44.) He JJjall lend unto thee and thouJhi.lt not lend unto him : he foall be the head end thcu the •^ tail. Thefe contrary blellings and curfes can only be explained by loans at Interefl or upon Ufury, Whether It would cxcced the bounds of my intentions filled in ihe to enter fully into the queflion, whether the liic ^oT ° Jewifii prohibition to lend at Interefl or upon Ufury were or were not Gonfmed to the'poor and the ON USURY. 21 the dldrefTed ? ' Many very refpedable divines part i. are of opinion, that a loan could under the ch\\>. r Mofaic law have been lawfully made at intereft from one Jew to another, to enable the bor- rower to traffic, purchafe land or for any fuch purpofes : and that the offence, which conftitu- ted the breach of the law confided formally in fuperadding to the difficulties and miferies of the needy and diftreffi^d borrowers. So that, where there was no hardfhip or oppreffion, there could be no fm of Ufury even under the lav/ of Mofes. Several paffiiges in the Scripture feem to fupport this opinion : and almoft all the in- ve6lives of the fathers prefs upon the enormity of the fm of Ufury on account of the oppreffion cruelty and inhumanity thereby exerclfed upon the poor. (Exod. xxii. v. 25.) " If thou lend *' money to any of my people that is poor by " thee thou fhalt .not be to him as an Ufurer, *' neither ffialt thou lay upon him Ufury." CLev. XXV. V. 2^' 37-) " ^^^ if t^y brother *' be waxen poor, and fallen in decay with " thee; then thou fhalt relieve him ; yea though " he be a flranger or a fojourner : that he may ' This fubjefl is very learnedly and ably treated in a work in 4 vol). i2rao. printed at Amilcrdam, I759> intituled, *' Traite dcs prcts de commerce cu de I'lnterct legitime ct illcgitime de I'argent ; par M . . . . Do6\cur de la Facultc do Tlieologie de Paris. " C 3 " live 22 A TREATISE Parti. " live with thee, take thou no IJfury of him or ^ilt^-i " encreafe, but fear thy God, that thy brotlier " may live with thee. Thou flialt not give him " tiiy money upon Ufury, nor lend him thy vic- *' tuals for encreafe." Very little impartial re- flection upon the invectives of the fathers will convince us, that the Ufury, which was the ob- jecl of their cenfure and deteftation was always an ad: of oppreflion or extortion. Thus ex- claimed St. Fiilary : ' Memento eum a quo Ufa- ram repetis ejfe inofem ct paupercm, propter quern incps ct pauper njoluit ejfe Chrifius : nor could he have faid this, unlefs he had confined the of- fence to the advantage taken by the Ufurer of the indigent and poor. But in the fuppofitlon, that the adual taking of any interefl or encreafe whatever by one Jew from another, where there was no opprefTion or hardfliip w'ere forbidden by the old law, yet as the law was but partial local and temporary, there is no pretext whatever for extending the inhibition to the chriflian code, the fource bafis and erjd of which is univerfality, that excludes every idea of foreigner or alien. Since however the common law of England is grounded in immemorial ufage, and fuch ufage muft have arifen out of the notions doctrines ^nd difpofitions of our anceftors I fhall continue Sn confidence the prefent purfuit. ' St. Hi'l. in rfalm .xiv. 4 As ON USURY. 23 As the mod violent eneniles of Ufary chiefly part i. confine themfelves to the fcriptural prohibitions ^_^^^!^^ in the Old Tedament, it will be proper, but to ^f;^"^^^, fpeak briefly of the two only pafl'ages in the New, J^'^'^J^;" which by fome perfons have been tortured into Teftsment. abfolutc prohibitions to take or receive any in- tered whatfoever upon the loan of money. The firfl; is (Mat. v. 42.) Give to him, tbat ajketh thee, and from him that would borrow rf the: tum not thou away. The other is, (Luke vi. 35.) But live ye your enemies and lend^ hoping for no- thing again, and your reward fhall be great. The judicious and profound author of the Trcdtc des frets de commerce \ proves in the molt fatisfadory and conclufive manner, that thefe two paflliges make but one and the fame recommendation of an evangelical council ; or rather that they re- ^ I Vol. 2 Partie, Ch. 4. Pie remarks a common error that feems to have prevailed in mod modern verfions of the Bible that have followed the Vulgate (as in this inftance both the Englifh and Rliemifli have) in this pafTage of 7i'iI.h1 inde /per antes. He obkrves, that in the more ^ntiept Greek copies it is; l«.-j-\,'(^irc ^/.-n^tv/'' aT^ATi^cvls? ; he himfclf renders it, ii.mhitm ikfperarc f(icie':t:s. The Latin tranO.itor from the Syriac text gives it ; Alutuum elite, n^quc frujlret'n expc£lationem uU'ius : from the Aral)ic ; Mutumn date, tt ne fraiuict'ii fpcm ulilus : from the Periian ; 71/* uo illis det'is, et ne quemp'mm dejpctahundum faiuitis. This fenfe certainly appears more congenial with tlie fpirit and conttxt of the paffage and to the literal acceptation of the Greek words, than by ren- dering y.r.'iiv'' xTTO^ir^^tilti, nihil inde /per antes. C 4 fer 24 A TREATISE PART I. fer to that general precept of humanity and cha- ^CHAP. L j.jjy^ which though obHgatory upon the con- fciences of individuals, never can be fo reduced to certain ads or occafions, that can be brought under the control or coercion of the civil ma- giftrate. Our blefled Lord clearly fpeaks of lending to the poor : and he draws the line between ads done out of human refpeds or worldly and natural motives, and which receive their reward here, and thofe which are done for the fake of heaven and which will be rewarded in another life. But it follows not, becaufe an a6l will not be rewarded in heaven, that there- fore it is prohibited to be done upon earth. No man w^ill pretend, that it is fmful to lend money to a rich friend, who will repay it, or to invite relatives or fuch acquaintance to one's houfe, from whom we exped a return of invitation. Yet our divine Teacher here inftruds us, in what initances the perfedion of his dodrine exceeds the common benevolence of mankind, holding ■up to us the ladder of evangelical perfedion, by which we may afcend to that rewnrd, which he tells us is great. The conclufive words, Be ye therefore merciful^ as your Father aJjo is merciful^ clearly demonflrate, that the difcourfe turned only upon loans to the poor and needy ; for to lend to the rich or to him that could repay with Interefl would be no acl of mercy : for fin:ers alfo ON USURY. 25 ^Ifo do e'uen the fame. Now as by the law of fartj. Mofes Ufury was allowed to be taken of all chap. j. foreigners, it was evidently no prohibition of an a<5l, which by the light of nature was known to be evil : for it is impoffible by the mere light of reafon to know, that to take or receive mode- rate interefl: for the loan of money, where there is no oppreffion but favour and benefit in the , loan, is agaiuft the great law of nature, which God has implanted in the hearts of his creatures. It was wifely faid by a refpeftable divine % •" that the law of God is clear and evident at lead " in all that concerns it's morality : and confe- ** quently reafon alone can difcover the juftice *' and equity of the precepts." Every fpecies of oppreffion and extortion upon the poor and dif- treffed diredly militates againfl this law of na- ture ; and therefore fuch adls are prohibited by our blefled Lord in the new law : for it is gene- rally admitted by divines of all fchools, " that •" our divine Redeemer only renewed and im- '*' pofed upon us (Chriftians) thofe precepts of " the old law, which are founded in the law of *' nature \'* Although it appear to have been conclufively * Le P. Thorentin. L'Ufure expliquee et condainneo. * Certiiin eft ex legis prasceptis ea tantum a Clirlfto re- novata c(fc ac nobis impolita, qiiie ad ipluiu naturae jus pcr- tiiicrcnt. Dogma EccUf, circa Uj'uram, Scil. l- prep. 2. p. 4.62. proved 26 A TREATISE proved by the unbiafled and learned doQor in his treatifc of commercial loans, that the paf- OfhZi^of fages in the New Teftament, the decrees of the and fchooi- Councils, and the opinions of moft of the Fathers JhcuTs to* upon Ufury, refer only to that Ufury, which op- uilry!"' prefTes and aggrieves the poor and diflreffed j yet as fome of the fathers in the heat of their zeal, and the generality of fchoolmen in the con- fufion of their refinements, have extended the nature of the offence to the taking even of the moft moderate encreafe for the loan of money from any perfon, however profitable and conve- nient it may be to him to pay it, there is no wonder, that by this change of the very ftate of the queftion, the whole chriftian world was kept for centuries in embarraffment and perplexity, by refpeftable cafuifts condemning in theory, what the flrictefl moralills continued to pra£life. Upon the whole, as to this prohibitory law of Mofes, fuflice it to fay with archdeacon Paley % *' This prohibition is now generally underftood ** to have been intended for the Jews alone, as " part of the civil or political law of that na- " tion." So general however and fo violent were the invedives of the fathers and doclors againft Ufury, v;ithout always fpecifying in what the offence confifted, that by general concur^ rence every nation in chriflendom prohibited ' Principles of Moral and Polit. Philof, i V. c. x. and ON USURY. 127 ^nd puniilied it, as an offence againfl: natural juftice and moral reclltude. When I reflect on the clofe connexion, that has always exifted ia this country between the church and ftate, I rea- dily trace moft of our laws upon fubjecls of this nature to the influence, which the clerical part of our early legiflators pofleflTed over the laical. Allowing therefore, that the opinions of the clergy upon a fubjeft of this nature mufl: at all times have produced a very powerful effeft upon the different communities of which they made a part, I fliall endeavour to fliew the continuance of thefe opinions as nearly up to our own times as pofllble, and mark the efl'edls they feem to have produced upon the municipal laws of the diflerent ftates, in which they have been, adopted. It would be an endlefs and unferviceable taHc Opinions of to quote all the different paffages from the fathers father, and canonifts againfl: the pra6lice of Ufury: fome few will fufllce to prove the prevalence of the ge- neral execration, in which the crime was holden. The guilt feems to be by them invariably grounded upon the poverty and dlfl:refs of the borrower : for they generally admit, that every a(5l, by which one human being takes advantage of another's difl:refs or indigence, is a dircd vio- lation of that fpirit of benevolence, with which God has cemented the focial fyfl:emof mankind, ;ind fur that end has infufcd it into the brcafl of tt A TREATISE PART I. of each individual. Both the Greek and Latin CHAP. I. fathers are equally vehement in their inveclives agalnft Ufury. Not one of them has been more explicit and violent than St. Bafil ; he has col- leded and collated all the paflages of the Scrip- tures upon the fubjedt : and he enters fo mi- nutely into the arts and praftices of the ufurious money-jobbers of his time, that one would ra- ther have prefumed his account had been writ- ten in London at the clofe of the i8th, than at Csefarea or Conftantinople in the 4th century '. '* The griping ufurer," fays he, " fees unmoved " his neceffitous borrower at his feet,condefcend- " ing to every humiliation, profeffmg every thing '^' that is vilifying. He feels no compafTion for " his fellow-creature, though reduced to this " abject Itate of fupplication : he yields not to ■^^ his humble prayer : he is inexorable to his ^^ entreaties : he melts not at his tears ; he holds '' out obdurate in his refufal. He fwears and '' protefts that he has no money, and that he is ^' under the neceflity of borrowing h-nifelf. He ^' acquires credit to his lies by fuperadding an *' oath, and aggravates his inhuman and iniqui'^ ** ous traflic with the groifeft perjury. But when " the wretched fuppliant enters upon the terms " of the lo:m, and holds out the advantages of " their exorbitancy, his countenance Is changed ' In Pfalti) xlv, " and ON USURY. 29 «' and he fmiles complacency. He reminds him fart i. " of his intimacy with his father, and treats him ^'^^^- ^• " with the molt flattering cordiality. ' Let me <* fee,' fays he, ' if I have not fome little cafh in " flore : for I ought to have fome belonging to " a friend who lent it to me upon very hard *' terms, to whom I pay mod exorbitant " intereft for it : but I fhall not demand any " thing like that from you.' By fair words and •' promifes he feduces and completely entangles *' him in his fnares : he then gets his hand to *^ paper and complet-es his wretchednefs. How *' fo ? By difmiffing him bereft of his liberty." Is this an ancient or a modern '' pidure ? " ' Take Solomon's rule," fays this fame father, to the deluded and abjected borrower, " drink " of the water of thine own well. Sell thy cat- " tie, thy plate, thy houfliold fluff, thine appa- " rel : fell any thing rather than thy liberty : " never fall under the flavery of that monfter *' Ufury." Then after a very fludied and ela- borate defcription of the unnatural and un- ceafing fertility of money placed out at Ufury, brought and bringing forth on the fame day, he clofes his inveclive by addreffing to Ufurers the coarfe and harfh terms of dc^s Tu^njiers vi- pers and devils. St. Bafil's brother St. Gre- gory Nyffen and his friend and fchoolfellow St. » Baf. Suppkm. in 15 Praltn. 3 Gregory 2b A TREATISE Gregory Nazianzen and all the other Gree!^ fathers hold very fimilar language. The Latin fathers are no lefs vehement itl their execrations of Ufury. St. Ambrofe has written perhaps more fully upori the fubjecl, than any other ; but he is peculiarly explicit iit grounding the guilt of the offence in the cruelty of the Ufurer in not fucccuring his diftrelTed fellow-creature according to the law and call of humanity. ' Cinn coyifra natiira legem fit nort juvare. St. Augufline is not lefs violent againft Ufurers than St. Ambrofe •, and he fhews, that he meant no other than opprefTive Ufury, which muft aiwa\s be contrary to the laws and fpirit of natural equity and humanity. The fame holy father * replies to the com- mon excufes for taking Intereil for money lent in this bitter and pointed manner. " Ufurers dare fay they have no other means of livelyhood, than the produce of their money. So may the robber reply, when taken in his lurking hole : So may the houfe-breaker fay, when taken ill the a6l of burglary : hoc mihi et km diceret emeju picllas ad profiitutionem!" In a word he elfewhere afferts, ^ that Ufurers belong not to the church of God. To approach nearer to out- own times, Leo the Great is not lefs violent * Ofiic. lib. ill*, c. 3. * 111 Pfalm cxxviii. 5 Ad Maced. et habet 14 q. 4 Cantic. Qnid dicam ? againft ON USURY. ^i agalnfl: Ufury ; and he fums up a very pointed part i. execration of the crime in thefe emphatic words, P^^\!; ^ ^loniam focmts pecunia: funu^ animce. After his time again St. Bernard could not excite a great- er horror of Ufury, than by declaring Ufurers worfe than Jews, and calling them baptized Jews. * P'j'-^s judaizare dolemus Chrijiianos fceneratorcs. Si tamen Chrijiianos et non magis baptizaios Jtidaos convenit appellare. With fuch a weight of authority it is little furprifing that fucceeding divines (hould emulate each other in. the bitternefs of their inveclives againft Ufurers. ' Fcenerator, fays Peter of Blois, trjlijfimos habet exitus hujus vita ciijiis mors detejlahilis^ cujus finis interritus, cujus damnatio fine Jine* In the Lateran council when Panormltan Decrees of Archbifhop propofed the queftion whether Ufury might not be difpenfed with for the redemption of captives, Pope Alexander III. anfwered in the negative, for this reafon : * ^od cm ufu- rarum crimen uiriifque tcjlamenti pagind detejia- tur^ fuper hoc difpenfationem aliquam non vidimus ctdmittenda7n. And in the fame council it was decreed, that manifeft Ufurers fhould be de- prived of the communion and fellowfhip of * De Jejunio lo Menfis Sermo 6. 2 Epift. 322. ad Spirenfes. 3 Epift. 131. ♦ Can. I. chriflianis 32 A TREATISE PART r. chiiflians in their life and of chriflian burial ,^" ^ ' \ after death, till their heirs had reftored their Ufury. The council of Vienna under Cle- ment V. condemned all as heretics, who held Ufury to be lawful. Progrefs of For the greater part of the time during which '"^^* the authors I have quoted wrote, Ufury was not very general : and the few, who praclifed it were fhunned pointed at and abhorred as con- ne(Sted with the devil : their houfes and proper- ty were ufually called the devil's houfe, the de- vil's field, the devil's vineyard, &c. For before the extenfion of commerce, which the difcovery of the weftern world fo much encouraged, and the confequent Influx of fpeeie into Europe, Joans of money to borrowers, that were not in- digent were too infrequent and infignificant to fupport any regular trade of lending out money at intereft. Thofe, who were reduced to the neceflity of borrowing confidg:able fums were generally diftreffed noblemen or perfons, who had influence enough upon their refpedive com- munities, to communicate to all about them a degree of that odium towards the lenders, which the humiliating neceflity of applying to them for relief naturally infpired the borrowers with. There is nothing fo virulently bitter as humili- ated pride : nor fo keenly fevere and fpiteful as^ fplendid diflrefs ^ whence the lenders of money at ON USURY. 33 at Iiltereil, who in fome meafure lived upon the part i. dlftrefles of others became neceffarily branded . ^ " 'j v/ith the opprobrium of oppreflion extortion and injuftice. The progrefs of commerce encreafed the neceffity and developed the advantages of borrowing money at Intereft: but the deeply- rooted prejudices againlt the lenders of money at Intereft did not wear away in proportion. The divines of the reformed churches differed not upon this point from the generally received doctrines concerning Ufury : they even appear to have reformed or improved upon the former deteftation of this horrible and damnabk pkhe, as our old Law-books term it. In the days of Martin Luther the Pope had Opinions of ^ the divicej publicly declared the contra5liis redempi'wnis ^ to »' ^he re- be lawful, which Luther conceived to be ufu- churches. rious : and fo horrible did the toleration of it appear in his eyes, that he thence concluded the Pope to be Antichrift. ^Necfic tamen adejfe An- ilihrljlum ullus credit. Melanc^hon, one of the mofl: moderate divines of that reforming age aflerts, that ^ what gain foever Is demanded for mere loan is fimply forbidden in Scripture (i. e. in Leviticus and Deuteronomy) and is diredly i. e. A bargain and fale with covenant of redemption, if the money be paid back again at a day certain. ' InPfal. XV. ' Dcfmitiones appellationum. D repugnant 34 A TREATISE repugnant (o eqaality and juflice. ' Chemnitius ' Arttius ^ Fieza '^Mufculus ^Erafmus^Zuinglius ' Camtrarius '^Q^colampadlus and numbers of otherij all agree in condemning Uiury as fimply ^ fmiul and never lawful. Caivin'3 So violent was the tide of opinion at this time *i""'^"- againft Ufury, that Calvin, who in the eyes of many rather ajftefted than avoided fmguiarity, feemed afliamed or reludant to avow the con- vidions of his own mind upon this queftion. He was prefied by a friend to give an explicit ivnfwer in writing to the queilion, Whether i'fiiry bs fiinply iinJa'Lcful? I'his produced his kiter upcm Ufury, in which he makes this iivowal, little 1 think congenial with a fincere defire of ililclofmg and fupporting truth o. " It " were indeed to be wiflied that all Ufury and *' the very name of it were baniihed from the »' world : for I uei'ire nothing more, than that *^ 1 may be never more urged to fpeak to that '-'' poiftt." AvA before he delivers his fcnii- * Loco lie faupeit. c. 6. * Problem, dc Uu!;;'";, Luc. vu 35, 3 A,] not. in Luc. vi. 15. ^ Suppkm. in Pfal. xv. * De Paritute Tabern. * In Luc. ' Catccliifm in Exod. prcic. 8^ ^ In Prophet as Minores. « Epifudc Uluia. 2 men:? ON USURY. 35 ments he thus timidly exprefles his apprehen- part i. fions, left his friend may take advantage of it ^^^^' ^ and extend his words beyond their meaning, Metuo ne We vsrbulo qU':dc!m arrepto plus fibi imiHo permittat quam velkm. At length however he declares what he feems forry to admit, that it had not hitherto appeared to him from any fcriptural authority that all Ufury is altogether condemned. Nulb tejlimonio J'criptwa mihi conjlat Ufuras c?nnind damnatiis e/Je. And Non- dum conjlat Ufurajii or,me?n prohibita?n ejfe. He infers therefore with great juftice, that we muft not judge of Ufury from any particular paflage of fcripture, but by the rule of equity. Judi- candiini de Ufuris eJfe non ex particulari aliquQ fcriptura loco ^ fed io.nium ex equ'itatis rcgidd. Not- withftanding this reflex and decifive opinion of Calvin in favour of the lawfulnefs of Ufury, it is not a little fmgular, that he fhould be fo af- feded with the general prejudice againft Ufurers, as to expell them from all human intercourfe for pradifing that, which he no where finds condemned in the chriftian code. ;\n Ufurer, fays he in this very letter, ought not to be fuf- fered in a well-conftituted government, but Ihould be expelled from the fociety of man, Ccd omniiio debet e confortio homimim rejici '. In ' I am fcnfililc, tliat fomc of my rcackrs may rather be difpoftd to rcjedt, than credit the authority of John Calvin. D 2 Without 36 A TREATISE In following the general progrefs of the pre- judices of the chrifiian world againfl Ufury, it is incumbent upon me to mark, if poflible, the period of their extinclion: for lam free to fay» that I have not met within the circle of my ac- quaintance a moralifl or a divine of any fchool or perfuafion whatfoever, who held either in the- ory or practice, that it was finful to place out mo- ney at a reafonable or legal rate of interefl to a perfon, to whom the loan was no oppreffion. The permiflion countenance and praftice by the chrifiian world, of an ufage fmful and immoral in Without fabmltting to all his opinions, where I find him agree with a great man of a direft contrary religious per- fuafion from himfelf, I think it a juft tribute to truth to notice the harmony of two eminent men upon a difputed point ; and to infer from fuch coincidence of opinions the very ftrongefl prefumption in favour of their reftitude. St. Thomas Aquinas agrees upon this point completely witli Calvin. Thofe therefore, who allow him the title of ^^«jf- llcal DoSor, will fcarcely give up his authority, even for the fake of queftioning an opinion of John Calvin. (S. Tho. Op. de Ufur. c, 4.) Ex prediclis eliam liquet, quare qusdam UJurainfacrdJcripturdy et eliam in legihui huir.ar.is concejfe fisnt tanquam liclta, quia quandocunque Ufura potcfi acclbi, ut fua res allquo jujlo titulo, erit fine fcrupulo iiiculpalHis accept :o. This opinion of St. Thomas goes further than that of Cal- vin, in as much as aClual permiflion gives llronger fan6\ion, than mere non-prohibition. The fiknce of the Council of Trent, which was convened, as it were for the exprefs pur- pofe of rejeclii:!g or condemning fomc opinions of Luther and CHAP. I.. ON USURY. 37 Tfi itfelf and exprefsly prohibited by fcripture parti. will lead to confeqiiences, which every one will obvioufly draw according to bis own confcien- tious aflent to the truth and holinefs of the doiSlrines taught and believed by the church of Chrift. We muil not however too haRily conclude, from the generally prevailing doftrines of the fchools, that all the divines of the church of Chrift at all times reprobated without difcri- mination every fpeties of Ufury according to their ftrid definition of it. The Council of Conflance, which was holden about the com- mencement of the 15th century, though the fubject were often flarted, refrained from paffing and Calvin will be to many a convincing argument, that the opinion of Calvin and others, who followed him upon Ufuiy was not difapproved of by that council. With refpecl to Ufury Du Moulin in particular with feveral followers of Calvin reprobated the then commonly received doctrine of the fchools, viz, that Ufury was of itfelf finful without any aggravating circumltance of opprcfllon cruelty or extortion ; and that the moral guilt of the offence confided formally in taking Interell upon a loan, though from ever fo opulent and gaining a borrower. Now it cannot be eafily imagined, that in the extent of matter fubmitted to the difcuilion of this council, if this opinion of the fchools had been a point of dogmatical faith, the fathers would have permitted fo pal- pable a contradltllon of it by Calvin, Du Moulin (3 editions of whofe work had appeared before the clofc of that coun- cil) and others to go over unnoticed. Dj any jd A TREATISE PART I. any decree upon it. The fathers of this coun- CHAP. .^ ^.j ^^,gj.g ygj-y niuch influenced by the great Gerfon's Gcrfon, avowedly the firfl divine of his days : "iuionof and no man appears to have fpoken with more '"'^' fairnefs and confideradon of Ufury than he has repeatedly done. He tells us, that the very term is frequently mifunderflood and mifapplied not only by the vulgar but by doftors and flatefmen. ' Ujurarius contradus no7ninaiur aliquandb talis atud dodores 'vel populum vel legijlatorem^ qui propria et ex fuogenere non eji Ujurarius. Gerfon both in the foregoing and following paffage manifeflly declares, that all taking of intereft or encreafe beyond the principal is not ufurious and is not prohibited by the laws of God or man. ' Exemplun datum eft alibi in materia Simonia, et hie potejh accipi in materia Ufurarum, quibus dum qu<2ritur aditus prt^cludi, condemnantur mulii contraElus^ qui fecundum legem Dei nonfunt IJfurarii nee illiciti^ et ejlnt utiles ta?n reipubliea qiiam perfonis. This venerable theologian feems to have convinced the council not only that every loan at Intereft is not ufurious, but that the regulation of the Intereft that may be ^ lawfully taken refts not with the church, but with the ftate : and that council was moft wifely filent upon the fubjed. This fentiment * Gerf. de Contr. Part I. Confid. xvi. * Id. ibid. Conf. xi. of ON USURY. 39 of Gerfon fhould be written in letters of gold in the front of every treatife of divinity and law. ' Nullus (iiitem debet ccnfcri fapientior in regimine reipublica quam IcgijJator. Prcptcrciz fpedrd ad eum precipue quantum pojjibllc eji^ jiijium pretium fiatucre^ quale non licet tranfgrcdi privatd voluntate^ qiue debet coerceri vel ligari, front reipubUc- nion law concerning that point is changed al- "'^' tc'-^d or affeded by the ftatute as far only, as the flatute exprefsly goes. So where an ad of parliament inflids a new punifliment for an old offence at common law, it flill remains an of- fence and punifliable by the common law, as It was before the ad paffed. Forgery for inftance was made felony by the 5th of Elizabeth ; yet it remained an offence at common law punifli- able, 62 ' A TREATISE able, as it was before that ftatute. I fliould here fay pofitively without hefitation, that the com- mon hiw of Ufury at this moment exifts in its full extent, except as to thofe inftances, in which it has been exprefsly akered by fubfifling fta- tutes, were it not for the authority of Lord Coke. There is however a difference to be made between the authority of our law writers, be they ever fo great, when they deliver their own opinions and when they report the decifions of the courts. Lord Coke's own opinions claim general, not univerfal fubmifTion. And it is with the greateft diffidence, that I venture to fuggeft, that in this inftance I feel myfeif un- der the neceffity of withholding my alTent to the opinion of this great man, when he alTerts ' : *' But now by the flatutes of 37 Lien. 8, and ''13 Eliz. all former ads ftatutes and laws " ordained and made for the avoiding or pu- " nifhment of Ufury are made void and of *' none effed. So that at this day, neither the " common law nor any ftatute is in force, but " only the ftatutes of 37 Hen. 8, 13 Eliz. and " 21 Jac. And the ecclefiaftical jurifdidion is " faved by the faid ftatute of 13 Eliz., as there- *' by it appeareth." If according to this opinion of Lord Coke ' 3 Inflit. 152. c. 70, 3 the- ON USURY. 6 J the common law concerning Ufury be not now in force, it will be a refearch of mere curiofity to invefligate what the common law once was concerning that offence. Whereas my obje6l is to prove, that notwithftanding the ftatutes of Henry 8th and Eliz. Ufury is at this day, an offence and punilhable at common law, as it al- ways was. My particular view in entering upon this difcuflion, is not to revive the execution of the common law punifliments againfl Ufurers, but to ellablifli and fupport that hnmane juft and now peculiarly neceffary maxim, that no aSiion can be founded itpon a contracl, that is ufurious at comnon law ; the very pofTibiiity of which is incompatible with the rec^litude of Lord Coke's opinion, that there is no common lavT con- ' cernin^ Ufury now in force. For the full and fair examination of this opi- Propnety of nion or comment of Lord Coke, we mufl firfi: oS ftilmes enter into fome fort of an expofiiion of the 27th Zx^mtAt! of Henry 8th, upon which I beg leave to make this preliminary obfervation. This parliament acted upon the wifell principle of legillation, which to the great detriment of this country has been generally neglected by all fubfequent legiflators. Finding that the cxifling ftatutes concerning Ufury wanted explanation and amendment, their firfl ftep before they under- took to remedy the evil, was to repeal all the fubfifling 64 A TREATISE fubfifting ftatutes, that there might exifl: no pof- fible variance or inconfiftency in the written law upon the fubjed. The full extent of the mif- chief arlfmg out of a multiplicity of ftatutes in pari materia can only be thoroughly known to thofe, who have undergone the irkfome talk of expounding and harmonizing a variety of fta- tutes afFeding the fame objed. Did only one written law exift at one time upon one fubjeft, our code of ftatute laws would then probably be perfplcuous fimple and efficient, and not, as in too many Inftances they now are, a mafs of ob- fcurity perplexity contradidion and mifchief. Effeaofthe The preamble of this * act fpeaks too clearly repealing r • r im- part of the of itfelf to need a comment. " Where before ad of Henry , i • • i. ^ n n i 8th confi- " this time divers and fundry atts itatutes and " laws have been ordained had and made with- *' in this realm for the avoiding and punifhing " of Ufury, being a thing unlawful, and of other *' corrupt bargains fliifts and chevizances, which " afts ftatutes and laws been fo obfcure and *' dark in fentences words and terms, and upon " the fame fo many doubts ambiguities and *' queftions have arifen and grown, and the fame " ads ftatutes and laws been of fo little force *' and efFeft, that by reafon thereof little or no " punifliment hath cnfued to the offenders of » 37 Hen. 8th, c, ix. intituled A Dill agalnji Ufury, « the dered. ON USURY. % ** the fame, but rather hath encouraged them to *' ufe the fame." It is a matter of ferious im- ** portance to ascertain preclfely, what was re- pealed and what was enaded by this ftatute. The enabling part of the flatute I fhall hereaf- ter confider, when I difcufs the nature of Ufury by flatute law : the quedion now under difcuf- fion is, Whether by this ad of Henry VIIJ the common law of Ufury were made void and of none effect ? Lord Coke's opinion in the affirm- ative I cannot fubfcribe to. The words of the repeal appear conclufive againfl it, viz. that the /aid ads Jiatuies an.i laws heretofore made of cr concerning Ufury fl:)fts corrupt bargains and che- vizances a7id all pains forfeitures a?id pc .allies concerning the fame. Thefe words evidently re- fer to and are merely co-extenfive with the words of the preamble, fmdry 6ls Jiatutes and laws ordained had and made within this ■^ealm for the avoiding and punifljiug of Ufury Now it is ^he words manifeft, that thefe afts ftatutes and laws muO: tk .oSunl be writtm laws ; for to them alone is applicable any obfcurity in fentences uords and terms : the mifchici, which is complained of and intended to be remedied by this flatute, could not have arifen or grown out of an unwritten law^ fuch as the common 1 av of England is. It appears equally unqueflionable, that the legiflature had only in contemplation the inefficacy of fuch F puniih- written law. €6 ATREATISK FART I. punlfliment', as were directed and impofed by CHAP. II. ^j-j^jT^ ^jCj.^ fhitutcs and laws, which were fo ob- fctirc in ihdv frntcnrcs words and tsrms as to be cif little force and eiTect. Lord Crke Thc Icamcd commentator upon thefe flatutes hlmidr ' o^ Ufury appears in the very paragraph I have cited to have lubftantially contradicted his own opinion upon the abrogation of the common law. For fays he, ibe ecclefiajiical jiirifdiElion is j'civcd by the fa id Jl aim e of lhe \yh of Elizabelh, ds thereby it apTcarctb. Now thc direct infer- ence from Lord Coke's words is ; therefore the common law was not abrogated or abolifhed by the 27th of Henry VUI : for if it had been, 'then the ecclefiajiical jurifdielion over Ufury could not have been fa-vcd, though it might have been revived by this fubfequent act of Elizabeth. Now this faving of the ecclefiallical Jurifdidion of which Lord Coke here fpeaks, is thc direct faving of the common law againft Ufury ' : for there are many uncontroveriible documents to prove, that by the common law ' The 15th Eliz. (chap. viii. fei5l. 9.) which revived tlic ■27th Hen. \il\, (that hud beta repealed by 5th and uth of Edw. VI,) from the 20th day of June 1570, declared, that in c'lfe any perfon fhould offend againft the faid revived aCt ; then alt arm ct'cry fxich oftrtihr and ojftnders /hall and may alj-j he pun'tjh^d and corrc^cd according io the e^dilitijlical hi-us hsre- icfore mad: aguinji Ufury, of alUcal courts bv common law. OJbJ USURY. 6] of England the crime of Ufury was only punifh- part i. able by the ecclefiaflical court. chap. ii. We find in 15th of Edward III. (A. D. ufarypu. 1341 ',) that the clergy complained through the "hJtcUfil archbifhop of Canterbury and other bifiiops, that the jKJliccs bad fiDiifljed Ufurcrs : to which the anfwer was ; " The king icill have the *' puniJ]D?}icnt of dead Uftirers end the ordinaries *' of living U/hrers." An irrefragable proof, thai by the common law of England at that time, the crime of Ufury was punifhable by the eccle- fiaftical court. Sergeant Rolle, in his abridgment ^, gives a wt-ethn- fuller anfwer to this. " 15 Edward III. c. vi. iL'ijurt " It Is accorded and averted, that the king and ^Z^Z " his heirs fhall have the cognizance of the JSm.?ot'','. *' Ufurers dead, and that the ordinaries of holy *' church have the cognizance of Ufurers on *' life, as to them afpertaineth to make compul- " fion by the cenfures of holy church for the " finne, to make rellitution of the U furies taken " againlt the laws o[ holie church, (Mes c*eft *' ftatutc fuit aprcs en le dit anne repele.)" ' 1 cannot hud any fubftautial authority, upon which Sergeant Rolle could i^o pofuively alTert, that this itatute was repealed in the fame year. » Pi-ynnc's Colt. Rec. Tiir. Lond. 32, 33. - 80:. T:t. Ufurtri. F 2 Nor Eaw.IJl. 63 ATREATISE PAiiT I. Nor when it is confidered, does the efTe^l of re- P"^J' 'j pealing it clearly appear. By it nothing new was enafted ; and when we take into refledion the complaint of the clergy, that the Juftices ufurp- ed their authority in punifhing Ufurers, and then refer to that complaint the anfvver, that the ordinaries fhall have the cognizance of live Ufjurers as to them appertaineth, we mud necef- farlly conclude, that the flatute did no more than declare, what the pre-exifling law upon the fubject was : for I take, the words, as tg ibem appertaineth to mean neither more nor lefs, than that they had fuch cognizance by the com- mon law. Now fuppofmg this flatute to have been purely declaratory of the common law, and that it was fimply repealed without any fur- ther enadment or declaration : the eiieft of the repeal could not go the length of aboliflilng the common law, which pre-exifted the declaratory flatute. The whole pofTible efledl of a repeal is to (^o away the effect of the aft repealed : but if it abolifhed a law, which exifled before the paiTmg of the a6l repealed, it would ope- rate further, than the doing av.ay the effect of the act repealed : confequently fhould even this flatute have been repealed in the fame year of the 15th Edward III, yet would the cognizance of Ufurers by the ordinaries have remained after the repeal precifely, as it was before the palling ON USURY. 69 paffing of the aft repealed. Sir Edward Coke * part i. fays indeed, that this Jiatute was afterwards re- chap. 11. fealed^ as hereafter fijall appear : by which I prefume he means, that it was repealed by the aft of Henry VIII : and not in the fame year, as Rolle aflerts. If however this declaratory aft had been repealed the fame year, like fome other afts for want of the royal alTent, it is Hill more clear, that the common law could not have been abolifhed by that aft, which barely declared the ftatute (paffed without fuch aflent) void and annulled. " Willing neverthelefs, that " the articles contained in the faid pretended " ftatute, which by orher of our ftatutes or of *' our progenitors kings of England have been " approved, fhall according to the form of the " faid ftatute in every point, as convenient is, " be obferved." This is a moft pointed decla- ration, that the repeal of this ftatute fliould not produce any effeft whatever upon pre-exifting laws. If however Sir Robert Corton and Wil- liam Prynne be faithful in abridging this peti- tion of the clergy and the king's anl'wer to it, it is impoflible, that what is called and publifiicd as the Vth chapter of the 15th E,d\vard III Ihould not have received the king's moft formal aflent ; and conlequently thi-^ ftatute, or chapter or article of the ftatute was not annulled by * 3 Inllit. 152. E 3 that 70 A T R E A T r S £ that acl, which avoided a flatute of the fame feffion, that had not received the royal affent. It Is evident that in the year i486, this very- act faid by Rollc to have been repealed was by the parliament of 3 Henry VII confidered to be in full force as then exifting, as a noble and fpecial flatute for remedying inordinate change^, and rechanges, of v;hlch I fliall fpeak hereafter. In the 5cth year of the I'lme king Edward in. (A. D. 1376,) the commons petitioned, 'That the like order tbct is 7na:^e in Lo}'d:n agaiyiji the hcrritle vice cf Ufury rimy b' obfe:vcd ibrough- oii the' 'whcb rcal'ii : to which the anfvver was ; ihnt the (id lave jha-.l ioutin-.'.e. Now in order to find what this eld liw was, we muft necef- farily Icok up to the then exiiiing laws con- cerning the punifhmcnt of Ufurers, and we fhall find, that bvthe common law the ordinaries had cognizance of the offence and the punifhment of live Ufurers : and becaufe the order made for the fuppreffion of Ufury within the city of London mud have depended upon the lord mayor and his court and not upon the bifhop, therefore the anfwer was, that the old law fnould continue ; which in other words meant, that out of the city of London the ordinaries fiiould retain their cognizance and jurifdidtion over Ufurers, as to them appertained. This we find ON USURY. find confirmed by the anfwer given to the com- plaints of the commons in the very next reign within the fliort fpace of about fix years from that time; for in the 6ih of Richard II', (A. D. I ^^2,) feveral petitions or bills were exhibited by the commons in Parliament to have feme remedy ngahijl Ujuriv U/urers and Brokers : the general anfwer to which was — Touching Ujurie the k'ng tcoidd the laws of the Diftin,5>iop. church Jhoidd difafs the fame : hut if any ?nan be ° '"'^^" grieved by Ufury upon accompt trcfafs extortion opprejfion falfehood dcceipt or fuch like mca .s^ the laivs and cufioms of the reahn floall punifJ} th.' favie^ Rolle in his abridgment quotes from the par- liamentary rolls an anfwer to the petition of the commons that places this matter out of all doubt : and yet it is wholly unnoticed by Sir Robert Cotton, William Prvnne and Lord Coke. 5 Henry IV. (A. D. 1403.) " The '* commons prayed, that as in the city of Lon- *' don, fu elfewhere throughout the realm the " horrible and damnable fin of Ufury common- " Iv pradifed under the name of chevizance, *' and by fcrangers called brokers, who have no *' other livelihood but their gains thereof, art- ^ *' fully converted into various forms, and which " are done openly by their means, whereby *' many of all eltates both fpiritual and temporal ^ Pryunt's Cott. Al). lUc. of the Tower, 285. F 4 «' have tual courts. 72 A TREATISE PART I. " have been empoverilhed, and their wealth and ^^^•"; " lands left : that it may be ordained, that no " alien nor denizen may be a broker of Ufury '* for the tiriie to come j and that this may be " inquired into every year, and whoever fhall " be convicted of being fuch broker, fhall for- " feit all his goods to the king." To which the anfwer was : " Let this matter le governed *' and ruUd according to the law of ho^y church " during the life of fuch UfurersJ" whatufury From the anfwer which was given to the fn"S'tJm- commons in the 6th of Richard II, we may [n7i!e fpi'n- pe^ceive a very marked difference between that Ufury, which was fubject to the cognizance of the fpirltual court, and that, which was liable to common law procefs. It appears not improba- ble, that the taking of regular and moderate Intereft, which by law was formerly permitted to the Jev/s, but never to Chriftians, was that fpecies of Ufury, of which the ordinary claimed cognizance. But the common law gave redrefs wherever any unfairnefs of account, trefpafs, ex- tortion, oppreftion, falfehood, or deceipt, ac- companied the tranfaftion : which feems to im- port, that every hard and opprelTive money bargain was by the common lav/ of the land ufurious and punifliable as fuch by the common law courts. And it m.ft have been for fuch yfury, that Lord Coke fays an Ufurer was 7 fined ON USURY. ?3 fined by a jury ', Joannes Hoperd convWits -per juratores proUfurd capiendo, i u. 8^. pro los. prtzftandis etfic de/imUihus. This fine by a jury could not have been impofed in the ecclefiaflical court, which knows no jury. Such alfo mull have been ihofe Uiurers, who as Lord Coke fays, were indicted for taking Ufury before juf- tices in eyre (which was a common law court) and fome were pardoned by the king and others not. It is rather furprifmg, that Lord Coke did not notice this difference between that Ufury which was punifhable in the civil and that, which was only punifhable in the ecclefiaflical courts. He fpeaks indifcriminately of the pu- nifliments of Ufury ", " By the ancient laws " of this realm Ufury was unlawful and punifh- " able, although the punifhment was not always *' one, but fometimes greater and fometimes " lefler." It is not improbable, that the chief reafon, which rendered our anceflors fo defirous of transferring the punjihment of fimple Ufury from the ecclefiaflical to the civil courts, was their affedion to the trial by jury : yet fuch in- fluence had the clergy upon the King and peers, and fo tenacious were they of the power and * 3 Inflit. 153. He quutes Hill. 6 EJw. III. coram Rege. Rot. 130. NorfT, ^ Ibid. jurif- PARTt. CHAl'. I. Reludlance of parlia- ment to al- ter the cog- nizance ot Ufury. 74 A TREATISE- p\RT I. jurifdlifHon of their ecciefiaftical courts, that ciAp II. parliament never would alter the common law of the land in that rcfpefl '. The commons in the 14th year of Richard II. (^\. D. 1390,) prayed, " That againfl: the horrible vice of " Ufur)', then termed fchefes, and pradifed as *' well by the clergy as laity, the order made by " John Nott, late mayor of London, may be ** executed through the realm." To which the anfwer was — " The king willeth, that thofe or- *^ dinancics be viewed, and if the fame be found *' to be neceflary, that the fame be then af- " firmed.** And it was but about 13 years after this anfwer, that the commons prayed, that every broker of Ufury fliould forfeit all his goods, and the cognizance and punifliincnt thereof were referved to the church. Almoft every mention, that we find made of the offence or punlfhment of Ufury in our old books or parliamentary records opens fome ad- ditional reafon, why our anceftors under the imprefTions, that were then generally entertained of the nature of Ufury, fliould leave the cog- nizance of it to the ordinaries. Thus we fee as early as A. D. 1266 ", the bifhops declared competent to enjoin wholefome pennance for that fm ; that is, to punifh live Ufurers. "//^ ^ Cott. Ab. Records of the Tower, p. 339. * Rot. Pari. 51. Hen. Ill, apud Coke, 5 Inftit. 151. 2 , " i6Jrf. ON USURY. 75 " 1 6 Art, dc Ufuris rcjpondetur. ^lod licet efif- parti. " cop'is pro peccato illo panitentiam Ufurario mjun- ^^^^- ^^^ ^' gere fahttarem. Sed quia committendo Ufuram, " Ufurarius furtitm co-mnittit, et fupcr hoc ejl con- " 'vicliis, catalla et terra Ufurarii, ficut catalla '■'• furis flint regis^ ct ft qui '■colueriiit contra hujiif- *' modi Ufurariiwi, rcjlltuantur eis bona fua, qua " ipfi Ufurarii per Ufuram extorferurtt'* And Bradon, who flourllhed under this very king, informs us, that it was an article of the charge of inquiry by the juftices in eyre. De Ufurariis chri/lianis, qui fuerunt^ et qua: catalla hahuerunty €t quis ea hahuerit. This enquiry certainly was to be made of dead, not living Ufurers. But if Lord Coke be warranted in faying, that many were indited before the juftices in eyre for taking Ufury, it is to be obferved, that they were indited for what, Ufurarii [er Ufuram ex- torferunt : and we have before feen, that if any man be grieved by extorfton, kc. the laws and cuflomes of the realm fhall punlfli the fame. It appears moreover evi'Jent, that from 'he year 1266 to the year i486, this jurifdicUon of the ordinaries over live Ufurers was admitted to belong to them by commcn law. For when in the 3d of Henry VII an a6l was pafled again l Ufury, which impofed a penalty of lool. upon the Ufurer, it was thereby particularly declared, that this new punifhment lliould not in any manner t>y common 76 A TREATISE manner derogate from the powers of the eccle- fiaftlcal courts ; rcferving to the church (the pi- vijhment jiGizvithJianding) the corredion of their follies according to the lawes of the fame. And afterwards again in the year 1494 when the 5d of Henry VII was repealed by the 11th Hen- ry VII, c. 8, there was an exprefs faving of the ecclefiaflical jurifdiclion in thefe words; " referv- " ing alway to the fpiritual jurifdidion their " lawful ■punifhments in every caufe of Ufury." Th€ power It woidd be diforderly to enter further at tuai court'* prefent into any of the effects produced by ufu"ry' given ftatutc upou Ufurefs, than to prove by them what the common law concerning Ufury was at the time of their palTing. I flatter myfelf it appears as clear to all, as it may appear Angu- lar to fome, that the crime of Ufury though for- bidden by common law, was punifhable only by the ecclefiaflical courts. Such punifhments were as much by common law, as any punifhments inflicted by the common law courts. ' " iVlatf *' ters of ecclefiaflical jurifdidion are of two " kinds, criminal and civil. The criminal pro- " ceedings extend to fuch crimes, as by the laws *' of the kingdom are of ecclefiaflical cogni- " zance, as herefie" fornication adultery and fome *' others, wherein their proceedings are po " refo^maiione juoruni et pro falute animcc : And ' Sir M. Hale's Hill, of the Common Law, cli. 11. " the ON USURY. *^ the reafon why they have cognizance of thofe " and the like offences and not of others, as " murder, theft, burglary, &c. is not fo much " from the nature of the offence (for furely '* one is as much a fm as the other, and there- *' for e if their cognizance were of offences, qua- '* te7ius contra Deum, it Ihould extend to all fins *' whatfoever, it being againfl God's law.) But " the true reafon is, becaufe the law of the land " has indulged unto that jurifdiction the cog- *' nizance of feme crimes, and not of others." Of this defcription was Ufury : for as by the common law of the land it was looked upon as finful unjufl: and repugnant to the law of God, it was obvious, why our anceflors brought it under the cognizance and punifliment of the ecclefiaflical court : and whatever power and ju- rifdidion the ecclefiaflical judges exercifed upon Ufurers by coercion in foro contentiojo^ they ac- quired it all from the common law of the land : for their pure fpiricual power and jurifdidion are by nature incapable of fuch external coer- cive authority. Singular it is, that the crime of Ufury under R^af^ fuch violent prepoffeffions againfl it, fliould """^ never have been accurately and precifely defined by any of our early law writers. Though Brac- ton chiefly flourifhed under Henry III, he is faid to have written his book in the reign of our 77 on on ^S A TREATISE PART r. ^^^ Second Henry, and may therefore be looked CHAP. 11. upon as cotemporary with Glanville : this work is much more dilTufc upon the laws of England, than Glanville'ij, yet is there Icfs in him upon the fubject of IJfury. He fpeaks not of it even as criminal ; but then it mufl: remarked, that he treats of it only as praclifed by the Jews : whence it appears, that by the common law of England Jews were allowed to lend at Ufury (under certain reflriclions) and chriflians were not forbidden to borrow : which furnlHies, as I before obferved a plain proof, that the practice could not be forbidden bv any pofitive law of God, or otherwife the immediate caufe of the oifcnce, as borrowing is, could not be tolerated in any chriflian country. <' 'But a debt of the deceaied, which is due *' to the jews fhiU not carry Ufury (Interefl) '•^ whilfl the heir is underage. And if a Jew's " debt iliali have come into the king's hands, *' the king {hall only take the principal, that is, "the funi fpecilied ill the bond or charter." Such was the uiiTercnce between the Jews and Chriflians in refpccl of Ufury in our old law-s, that I find it neceiTary to make Judaifm by the laws of J:'ngland the fubjett of a diilincl chapter. * Bradloi , lib. )i. c. 2b. De ncqijircmlo rerom domliilo. Glanville ON USURY. 7^ Glanville enters much more fully into the part i. nature both of the crime and punifhment than ^^^^-if- Bradon, but does not confine the crime to Tews. J^JawiUcon Yet it Is remarkable, that the fole punifiiments of the crime, which this author mentions fall upon the heirs and the reprefentatives of the XJfurer, not upon the tJfurer himfelf. For fays he, ' Jlvus mite?n 7ion fold aliquis de crimine XJfura appellari 7iec cowvinci. He informs us how- ever, that upon the death of an Ufurer all his goods and chattels belong to the king, and that an inquilition is to be made upon the oaths of 1 2 jurors, whether the deceafed died guilty of the crime. His heir alfo is difmherited by the law of the land, b^xrei autem illiiis hdc eadcm de catifd exkieridntur fecundum jus regni ; and the inheritance reverts to the lord or lords. The rigor of the law, he adds, attaches only, where the perfou dies aftually guilty of the pra<5lice: not where before his death he fhall have difcon- tinued and done pennance for it. The mofl: po- fitive proof therefore was required by the law at this time, that a perfon died adlually (and pro- perly fpeaking) habitually guilty of Ufury, in order to give a title to the king and the rever- fioncr againft his real and perfonal reprefenta- tives, * Glanv. Tia(ftar. dcr Legib. Regni Angliie, lib. vii. c. i6. Th« to PART CHAP. » y- Fleta fta Ufury, A TREATISE The learned Selden in his d/Jfer/atio in Flctam ' proves inconteftably againft Sir Edward Coke and others, that the author of Fleta wrote un- der Edward I. and not later. This work is but a more concife account of our laws, than Brac- ton's : and in many paflages a mere tranfcript from that author ; there are however fome alter- ations in the laws to be noticed in Fleta, that took place after the writing of Braclon*s trea- tife. We may remark particularly in Fleta the difference, which the laws in his time eftablifhed between Ufury amongfl: the Jews and amongll Chrlftians. Of the latter he fpeaks as of a crime of the mod atrocious nature, that induced the forfeiture of all the delinquent's goods and chattels and rendered him outlawed. "^ '* Atrcx " injuria eji, qu(Z omnium mobiliu?n amijjiojiejn con- *■'' feit et legem liber am aufert, qua: locum hahet in " Ufurariis chrijlianis*' But it follows evidently from what this author elfewhere obferves, that although amongft Chriftians Ufury were fo flriclly prohibited and fo feverely puni(hed by the common law, yet by that fame law it was permitted to the Jews, and that upon the lega- lity of Jewifii Ufury was the ftatute of Merton formed, which fufpended the accruing of interefl * C. X. Sec. 2. al'iter fenfire y &c. * Fleta, lib. ii. c. I. Scio gulden viros allfuot nomlnh magni during ON USURY. 8i during the nonage of the heir to the ere- pap.t i, ditor. This flatute, which was paflTed in the chap ii. 2cth of Hen. Ill, makes no mention of Jews in the chapter relating to Ufury : but fpeaks of it generally, and engrafts a new law upon an exifling ufage, viz. the payment of Intereft for money borrowed, which it could not do, if fuch ufage were illegal in itfelf. Now if any other per- fon than a Jew could at that time have legally lent money upon Ufury, the author of Fleta, v/ho wrote foon after the paffmg of this act, would not have fo confidently afferted as Bra6ton had done before him, that the flatute related only to the debts of the Jews. For fays he, " A debt *' of the deceafed which is owing to Jews fliall *' not carry Intereft v;hilil the heir is under age, *' by the flatute of Merton, Vvhich is to this ef- " fed *." It would be irregular to confider the operation ^ Fu-fiT, Ii''. ii. c. 5 7. Dehlium 'Vero JefunBi quod dcletur Judais tion ufurahit vcl muhipllcahit guamdiu hares fuerit infra ^uil^tn^ per tonjlitutionem de Merton, qua talis ejl. It is im- poIUble fur me to reconcile this with what I find afferted in 'landcrfuii v. Warner (20 Jac. I. Palm. 2gi.) where L. C. J. Lea faid that the " Ufury condemned by the common law •* was a common tiafFic of ^i/.v/o- Ukiry, fiich as was pratlifcd '- by the Jcw><, and were therefore called yi'«o-// information Sir Edward Coke in his 4th Inftitute, c. I. «* p. 23. hath five or fix grofs millakes together touching the *' Judicature in Parliament, which I have -at large demonftra- *' ted and refuted In my Plea for the Lords, &c." *' ihall ON USURY, 115 '* /hall recite them at large to undeceive his too part i. *' credulous readers of the long rob^*, who take ^ ' J \ *' his words and works for oracles, (though in *' many things very full of grofs miftakes) contra- " difted by his own records he cites, fpecially *'• in his chapter of Parliament and Admiralty." Certain it is, that a King of England could not by his prerogative banilh any perfon from the kingdom : and voluntary departure out of the realm is no banifliment. But Sir Edward Coke's confenion, that at this Parliament (iSth Ed- ward I.) the King had a fifteenth granted to him pro expidjione Juciizormn feems to amount to a refutation of his own opinion, and to prove, that the Jews were, banifiied from England by Acl of Parliament. What Mr. Prynne has faid after all our ancient hiftorians confirms this proof. ' " i he Jews were judicially really ba- " nifhed ' Short DenTurrer, p. 4'^: and in his Preface to Sir Robert Cottfn:-, the rolls whereof are *' periflied and quite loll eitiier tliroiighlhe negligence of the *• record keepers (or other probable caufes there enumeru- " ted). By means whereof thefe parliamentary rolls being " no where to be found, their deftdl mult be fupplled only 1 2 «« out ii6 A TREATISE I'ART I. " nlflied both by King and Parliament prlncl- ^^^- " pally for their infidelity and other fore- *' alledged realbns commanded under pain of " hanging to dep:)rt out of it at a fet day : for *' the effefting and haftning whereof the Com- " mons gave the King •&. fifteenth,'* Of the time Sir Edward Coke fpeaks of the time of the the fVatutc paffing of this ftatuLe as of a matter of noto- dejudaifmo. . i • i i • i r rr- r riety, havmg been made m the leflion or a par- liament, tentiim poji feftum Sti Hillarii et po/i pafcha anno i8 Edivard I. Now although this do not exa6lly fpecify the duration of the feffion, yet it proves, that it began after Hillary '* out of {\ic\i fragments and rnemortals of them as are extant " in our other records and ancient hiltorians, efpecially iii *' Mat. Paris, Mat. Weftminfter, Wiiham of Malmfhnry, •' Henry archdeacon of Huntingdon, Roger de Hoveden, " Simeon Dunelmenfis, the Chronicle of Brompton Radul- *' phus de Diceto, Ranulphus Ciftrenfis and Thomas of *' Wainngham, who give us feme account of their proceed- ** ings and tranficlions, which alfo had been utterly buried in " oblivion as well as their rolls, in which they are at large " recorded, &c." Befides the teftimonies of the above- mentioned authors, we find the like accounts of the parlia- mentary exile of the Jews in the i§th year of Edv^'ard I. in Henry of Knyghton de Eventib. Ang. 1. iii. c. I. Coll. 2462, 2466. John Major in his Hid. lib. iv. c. 9. and after him the Magdeburg Centuriators ch. xiii. col. 1286 fay, that every of the Commotiers gave the King the \^th penny, that he might hanljh the Jevjs. And alfo in John Bale, cent. 4. Script. Brit. c. 60, in Append. Polydor, Virgil, Ed. i. Hol- linilied, p. 2S5, &:c. and OM USURY. 417 and continued fome time after Eafter term : and although the act were made to commence it's operation from the feafl of St. Edward then lafl part, which was the iBth of March, yet might there have been full time even during that very feffion after the pafling of the aft to experience it s elfeds either in the infolence or overbearing of the Jews or the difcontents of the peoplt-. This ad v/as pafled between the i8rh and the 29th of March: for it mentions the feaft of St. Edward (18th iVlarch) as pa(f, and directs fomething to be done betujeen this and Eajier at furtbejl, which in that year 1290 fell on the 29th of March. If the grant of one fifteenth to the King were made for the confideration mentioned by cotemporary au- thors, who wrote whilft the records of parlia- ment exifted and could be refei red to, then fuch grant of a parliamentary aid neceiTarily import- ed the privity advice and confent of the grant- ors to the act, which was in fact the confidera- tion of the grant 9 and this was the baniilmient of the Jews. But every ad: done by the King of Eng'and w'ith the advice and confent of the Lords and Commons legally convened becomes a legiflative act and a law of the land, if we keep in view the method then commonly pur- fued of pafling ads of parliament " we fhali per- * Vide note, p. no, 1 ^ reive ji» A TRKATISE TATTi. ctive how eafily tlie petition of the Commons i_ / with their offer of the aid may liave been fent up to the Lords and entered upon their rolls and the royal alfent given to it between the palT- iiip- of the ftatute de ludaifmo a lirtle after the i8th of March and the i8rh of July following, which is the date of a writ dircQed to a fheriff concerning the Jews then ordered into banifn- ment \ The King could banifh no man with- out the aid of parliament, as is evident by Magna Charta (c. 20). Two material obfervation upon the flatute de Judaifn'o feem to confirm the aflertions I have, in differing from fome very refpectable writers, be- fore hazarded. The firfl: is, that the church was againfb the oppreflion and perfecution of the Jews, as a mod antichri'tian fyilem, and there- iPore the legifiature of this day paying jufl: de- ference and fubmiffion to the didates of the clergy in expofmg the true fpirit and tendency of the evangelical do£li ines, as it was their duty emphatically to do, declared that to be the rea- foo, why they did not ena6l oppreflive and per- fecuting laws againft the Jews (fed:. 6.) Beca-ifi holy church wills and Jufftrs that ihey Jhoidd live and be prcicclcd. I am happy in cont rafting ? Appendix No. VI. R(,t. Clrruf. iS Ed. I. iithjal}.-. There are fp-eral iV.ch wiits a-otl tliey are en'.ituled De ^ " thi^ ON USURY. 119 this authentic document of the mlldnefs and part i. juftice of church governors, againft many chap. ni. groundlefs imputations of their intolerancy and perfecution. The fecond is, that the ecclefiaf- tical jurilcliction over live Ufurers was given by common law, and not as Sergeant Rolle has af- ferted, by the i5ih of Edward I, which was in the fame year repealed. For by this ad, which was cer.ainly paiicd after the jjth Edward I, it is enad; d (fee. 7.) tbat tine of t' em (Jews) Jhall be obedient or r^fpmdent^ but Lo th^ King and his bailiffs in hi^ name 'iifc. faving the rigli of holy ihurch. Now it never was pretended, that the Jews could be brought into the fpiritual courts upon any other than ihe fcore of Ufary, which thisfaving therefore mull refer to. And if this right had only been given by the 15th Ed- ward I, and the act had been in the fame year repealed, it could not have been y^i;c'^ though it might have been given anew or revived by a fub- fequent acl of parliament. About three years after this banifhment of the Proofs of Jews there is another parliamentary record, n'tbdng* which proves by ii's ve y nature, that their banifli- '"'""'^'''* ment was not voluntary, but by the authority of parliament: which was for the King's recover- ing from the prior of Bridlington a fum of 300!. due from him to a Jew before their baniflnnent : after whi:h whatever remained of the debts and I 4 chattels 120 A TREATISE VART I. chatlels of the Jews In the realni belom^ed to CHAP HI. fYie Crown. ' It was utterly impofrible, if their banifhmcnt bad not been ordained by pa: liament, that fuch property (hould have belonged to the Crown. For neither their own v.'untary exile, as Sir Fdward Coke has afferted it to be, nor even their banifliment by royal proclamation could have worked an efcheat or given to the Crown a right to fue the Prior of Bridlington for a debt, which he owed to a Jew. Mr. Prynne then had flrong reafons to conclude, that the Jews * banifliment was '' by the unanimous de- " fire judgment edicl and decree both of the *' King and his parliament : and not by the King *' alone : and this banifhrnent total of them all, *' and likewife final, never to return into Eng- " land : which edift and decree not now extant ** in our parliament rolls (m.'.ny of which are *' loft) nor printed ftatutes, yet is mentioned by " all thefe authorities." However ambiguous or fufpicious fome facts may appear, that have been recorded by cotem- porary and repeated by fuccellive hiftorians, yet when the teftimony of coeval writers concurs with that of their immediate fucceiTors for a * Appendix, No. VII. Plac. Parliament poft pafch. apiid Lond. 2 1 Edw. I. and there is another fimilar record to be > found in the rolls of the 2Z EJw, I. Rut, 6, * Demurr, p. 40. length ON USURY. 121 length of time in retailing or referring to a part i. notorious fa 61:, the evidence of whicli could, chap. iiL whilft they wrote, be either proved or dliproved by the records of parliament, if future genera- tions were to refufe their belief to fuch concur* rent tellimony, they would at once deifroy the pofTibility of any moral certitude in paft events. The dream of opinion is againfl: the folitary affertion of Sir Edward Coke j he alleges no proof that the flatute de Judaiffiio was not made before the i8th of Edward I, and afferts pofi- tively, that at this fame par Uame^it (i8th Ed- ward I) ihe King had a fifteenth granted to him ■pro expulfione y:e}iod and the 27th of Henry VIII, v/hen every written law, which concerned Ufury was certainly repealed, and few or no laws affefted the Jews but with medi^ ate or immediate reference to Ufury, it would be now a fruiilefs refearcb to examine whether any laws affeding the Jews prior to the j 8th Edward I furvived that period and became abolifhed by the general repealing aft of Hen- ry VIII. h is impofTible, to extend the effecls of ba- nifiiment beyond the individu-ds bani(hed : for it is a perfonal punifnment. And I know of noIaw> that ever prohibited a Jew more than any other perfon from coming into this kingdom : and when ON USURY. 123 ?when we throw back our refleclion upon the in- parti. variable and ou-rageous rancour, with which ^^^•^^- '^^; our annaHlis and other writers have endeavoured to blacken this race of people, it is higldy honour- able to them, that during the fpace of 505 years, the lems 61. 5s. had been taken for the loan of lool. for three months. An action qui tain upon the (latute was brought above twelve months after the receipt of the 61. 5s. ; but not twelve months after the re-payment of the principal : and the point de- cided by the court was, that by the corrupt bar- gain o.nd the taking (f Voe 61. r^s. that offence or Ufurious ad was confummated, for which the flatute gave treble damages and that the year ran from fuch coniummation. Lord Chief Juf- I Reporte.l very much at large In 3Wiif. 250, and m"re briefly in z Blockf. y^a, tice 15$ Corrupt baigain and taking of mire than li^tl iii'eieft completes the i,tF«nce, till -.vlikl^ tlj? it iruie gives treble damages. J54 Lord Chief fuftice De Grey's opi- nion that the Common Law fur- vived the ■?-th Hen. VIII. Co-opera- tion of the Common I,a\v \vith the Statute. A TREATISE tice De Orey, who on this occafion went very fuUy into the nature of Ufury, in fpeaking of the aft of 37 Henry VIII, feems pointedly of opi- nion, that this ftatute did not abolifh the com- mon law of Ufury, and that the offences of Ufury by co7nmon lay; are more multifarious than thofe of Ufury by the ftatute '. " There is no " mention made in this ftatute of the loan of *' money : the offence intended to be puniflied *' feems to be tbe taking in gains for the for- *' bearing of one year for his money, or other *' thing, that jfhall be due for the fame wares ** or other things above lol. in the lool. ; " it's not faid for ?noney lent, or the Ufe or " Intereft of money lent : fo that it feems, as if " it was then Jii II penal to take any Intereft^ c-vcn ^^ Jive per cent, for the loan of money. ^* It could then only have been penal by coinnicn law, fos. the acl of Henry VIII evidently repealed all ftatutes aft'e£ling the fubject. I have before obferved, that none of the exift- ing ftatutes of Ufury created any new offence, but on the contrary rendered many things law- ful, which were before criminal, and annexed new punifiiments to old oftences. If therefore the flatute give treble damages, where exceffive Intereft has been corruptly taken, it feems clear that the exceffive taking is ftill criminal by com- mon kuv and open to all the remedies, to which it 1 3 war. 261. QN USURY. 15*5 it was liable before the flatute gave treble da- part i. mages. For if the common law be abolifhed, c^'ap. v. the flatutes would rather protect and counte- nance, than check and punifli the crime of Ufury. Lord Chief Juftice De Grey faid in Lloyd V. WiViams \ ^' To conftitute the offence, for ** which the prefent adion is brought, to reco- <* ver treble the value of the money lent, thefe " three things mufl concur, ifl:, A contraQ: be- *' tween the parties j 2d^ monies or other things " lent; 3d, above 5 per cent, per annum receiv- ^' ed by the lender for the forbearance." If then a perfon taking more than 5 per cent, without any previous contract to that effect, cannot be pu- nifhed under the ftatute for want of this con- dition, it is evident that the flatute will en- courage and fcreen, rather than prevent or punifh the Ufurer. It appears from the follow- ing cafes, that the different a6ts, to which the ftatutes apply their effedts are by the common law Ufurious and differently affected by the fla- tutes, although they do not conftitute that com- plex offence, for which the flatute according to Lord Chief Juftice De Grey gives treble da- mages. Under the grcateit deference however to that great man's opinion, 1 think it highly important to confider minutely the nature fpirit 4iid princip'e of the following cafes. In ' 3 Wilf. 26 1 . 156 PART I. CHAP. V. Coirijpt agreement without taking for- feiture. Taking without cer- rupt agiee- mcnt, no avoidance of the fecurity. A TREATISE In ' Brown and FuIJhye a man took a bond from another for the payment at the end of the yiar of a certain fum with excefllve Interefl: : yet if he only took the Principal with legal In- terefl, /'/ is not Ufiiry within ihe Jlatute to make a treble forfeiture i but yet in that cafe, the obli- gation itfelf is void". And I prefume, the contract being in this cafe Ufurious by common law, no action could be maintained by the obligee for thQ money, though the avoidance of the bond be exprefled by the ftatute. On the other hand, ^ it was faid by North Chief Juftice, *' that if a man take a bond legally for the pay- ^' ment of lawful Interefl, but if afterwards he " aclually take more than the legal Interefl, this " doth not avoid the bond : but the party is " liable to an information upon the ftatute for '^ taking more than the ftatute allows."—'*" But " to avoid a fecurity by reafon of Ufury, the *' coS?:racl itfelf muft be Ufurious." It ig material to remark, that it was exprefsly faid by Twifden * 22 Car. II, " There are two " claufes in the ftatute of Ufury : if there be a » 4 Leon. 43. i With this alfo agrees the cafe of Body v. Tafi'fl. 3 Leon. 205. 3 I Freeman, 253. ^ 2 Mod. 5c s 3 Mod. 6 J. corrupt ON USURY. t57 *f corrupt agreement at the time of the lending part i. *' of the money, then the bonds and all the ^"•'^^- ^; « affurances are void : but if the agreement be " good, and afterwards he receives more than " he ought, then he forfeits the treble value.'* Here the diiTerenc* is mofl: clearly drawn be- tween the guilt and punidiment of contracting Ufurioufly and of taking Ufurious encreafe without any previous corrupt agreement. This feems rather inconfiflent with Lord Chief Judicc De Grey's opinion in Lloyd and Williams, that to conftitute the offence, for which the treble value of the money lent can be recovered the three before- mentioned conditions fhould con- cur. Nor does the cafe of the ' King v. Walker tally with this doctrine of Lord Chief Juftice De Grey, although the cafe of King v. Upton * in part does. " After a verdiiSt /to " Rege on an indidment for Ufury: Strange " moved in arrefl: of judgment, that they had » Sid. 421. It is alfo reported as anonymous I Vent. 38. a Strange 816. If this report be accurate: the procefs againll Upton by iudiifiment was iy comtnon laiv, and not by ftatute : therefore the common law concerning Ufury furvived the ftatuteof Henry VIU, notwithftanding Coke's opinion. Viner, Ufury, L. I£. fays ** No indldnunt ivill lie on th^Jla- «* tute of Ufury : for the method the aft prtfcribes nuill be *• followed t therefore the indiclmLut mull be quartied. «' II Mod. 17V fol, 17. PiiTch. 7 Ann. R. R. The Queef " T. Dy." ** only 158 A TREATISE PART I, " only laid a corrupt agreement, without any CHAP. V. *' folvency." I fliall alfo hereafter have occaflon to fpeak ra- ther fully on the queftion, V/hctherlherecan be Ufury with- out a loan ? ■* Cowp. 112. M 2 " mufl 164 A TREATISE PART I. CHAP. V, *' mun: get at the nature and fubRance of the " tranfadion : the view of the parties mufl be " afcertained, to fatisfy the court, that there is a *' loan and a borrowing, and that the fubftance " was to borrow on the one part and to lend on " the other : and where the real truth is a loan of ** money, the wit of man cannot find a fliift to *' take it out of the Ratute. If the fubftance is a *' loan of money, nothing will protefl the taking *' of more than five per cent. And though the *' ftatute mentions only for loan of monies, *' wares, merchandizes or other commodities, '' yet any other contrivance, if the fubjefl of it '* be a loan, will come under the word, i/idi- " racily.'* The application of thefe general prin- ciples to particular cafes, will be an ever fure mode of determining whether contrads be or be not ufurious : although as Judge Blackftone ob- ferved in Murray and Hardin^e, every cafe of Ufury miift depend upon its civn circumjlanccs. Under- valued annuities, improbable chances, remote contingencies, over-rated fales or leafes are the general engines employed by thofe, who trade in the evafion of thefe datutes. At prefent I fhall fay no more of annuities, than that it may be difficult to find many of them, that were not granted upon the fubftance of a loan or accom- modation of money, whatever form or mould the negociation may have been thrown into. At a time O N U S U R Y. 165 a time when that fyflem of annuities, which now part i, yearly devours fo large a part of our landed re- chap. v, venue, had fcarcely alTumed a vifible form (A. D. 1745) the intuitive mind of Lord Hardwicke, feems from the then unformed conception, to have forefeen the exa6t form of the future infa- tiate monfter, that was to gorge and thrive upon the ruin of his countrymen'. " There has/' faid this great oracle of natural judice, '' been *' a long flruggle between the equity of this " court, and perfons, who have made it their " endeavour to find out fchemes to get exorbl- *' tant Intcrefl:, and to evade the flatutes of « Ufury." Mr. Lawley, being a younger brother and Mr. Law- rather extravagant had been neceflitated to fell ^^*"*'* 150 1. per ann. out of an annuity of 2col. which was his fubfiflence, for 1050I. with a power of re-purchafmg. And upon the queftion, Whether the afTignment of the 1 50I. per ann. were to be confidered as an abfolute fale or as a fecurity or loan ? Lord Hardwicke faid " I think, (though *' there is no occafion to determine it) there is a " (irong foundation to confider it as a loan of *' money, and I really believe in my confcience, ** that 99 in a hundred of thefe bargains arc ♦' nothing but loans turned into this Ihape to * Lawley v. Hooper, ^ Atk. 278. M 3 *' avoid i66 A TRE ATISE p^RTi. " avoid the flat utes of Ufary." However his CHAP.v. Lordfliip five years after this, faid in the cafe of Chejhrfield and Jmifen, ' " Courts regaid the fub- " fiance, not the mere words of contracts. Loans " on a fair contingency to rifle the whole money '* are not within the flatute. j-. man may pur- " chafe an annuity as low as pofTible. but if the " treaty be about borrowing and lending and *' the annuity only colourable, the contra£l may ** be ufurious however difguifed " But of An- nuities I fhall fpeak more fuily hereafter, con- tinuing at prefent my enquiry into the nature of fuch acts and contrads as the courts have deter- mined to be ufinious, and in this attempt my ob- jcvfl will be rather to lay down the general prin- ciples, which have governed the different deter- minations of the courts, than to extract nev/ principles Out of a great variety of cafes. To follow up what thofe two great men Lord C. J. De Grey and Lord Mansfield laid, the former in Murray v. Hardinge^ " As on the one hand no " colour or fhift will protedl a real ufiir'^oiis lo^.n^ *' fo on the other no inequality of price will con- ** demn a real and fair hazard ;" and the latter in Floycr and Fchoaid^^ '' Where the real truth *' is a loan of money, the wit of man cannot find " a fhift to take it out of the flatutes ;" we will ^pdeavour to fee hov/ in the various attempts by ? I V7iir. 295, nionied ON USURY. 167 nionled men to procure more than legal TntereH:, their efforts have been countenanced or baillcd by the application of thcfe principles to the par- ticular cafes. One ordinary attempt to evade the flatutes of Ufury has been, by fur.xiihing the perfon wanting the money with go ^ds wares or merchandize at the price fixed upon them by the lender or the perfon undertakmg to accommodate the bor- rower, and he by a fubfequcnt fale f perhaps to a fair chapman, though more likely to the accom- .modator's aj^-eni) raifes the money he wants, thodgh he fa (lain much lofs upon the fecond fale ; as was the cafe of Lo^jj and others v. Wal- Furninibg ' goods inltead ler, ^ where upon a n.vociation for a loan of ofi'^n^img ' ca(h ufuri- monev the lender faid he could not advance cafh, o»s. Low v. "' , . ' Wallfr. but would furnifli goods, which the borrower took and fold by the intervention of a broker recommended by thd lender, and upon the ilfue of the negnciation Waller in (lead of 200I, which he meant to borrow received only 1 17L zs. 2d. The quedion, Whether the tranfaclion were a loan of money for more than five per cent, under colour of a fale of goods ? was left to the jury, who found the contra to be ufurious. Upon application afterwards for a new trial, the court refufed it ; on whi h occafion Lord Mansfield obferved, that ** before the (latuteof Henry VIII. " Dougl. 712, M 4 " all i68 A TREATISE PART I. " all Interefl on money lent was prohibited by ^^^lHj ** ^^^ Canon lav/, as it is now in Roman Ca:- " tholic countries '. This gave rife to many " fliifts and devices to evade the law. One, *' which was then the mofl: common, was pr .- " vided againft by that llatute : but the prohibi- " tion being confined to that particular fort of '* tranfadbion, Ufurers were thereby put upon " other contrivances : and experience t^.ught " the Legillature, in the more modern flatutes, *' not to particularize fp ecific modes of Ufury " (becaufe that led only to evafion) but to enact "l generally, that no fhift fhould enable a man to ** take more, than legal Interefl upon a loan. *' Therefore the only queflion in all cafes like " the prefent, is, What is the real fubflance of the " tranfadtion ? not What is the colour and form? ** This is one of the flrongefl cafes 1 ever knew ^' litigated, it is impofTible to wink fo hard, as * It is wonderful, that Lord INJansfield fiiould in this InRance have deviated from his ufual accuracy ; whereas it is noto- rious, that by the laws of mofl Roman Catholic countries of Europe a certain rate of Interefl was allowed upon the loan of money. This maybe feen fully proved in the 3d volume of Trade aj Pitts de Commerce with reference to the laws of thofe princes of Italy, who fucceeded the Roman emperors and of all the Italian flates from the 1 2th century to the pre- fent, of the Vifigoths in Spain, of modern Spain and Portu- gal, of Germany, of the Auftrian Netherlands, of France, &c, *rc. " not iOOi' ON USURY. 169 *•* not to fee, that there was no idea between the *' parties of any thing but a loan of money.** Upon the Hke principle alfo was determined ^ liLTcIfe, the cafe of Barker v. Vanfo?nmer and others S Va^o"^ ""' where Barker a (tudent of Wadham College had *^"' applied to /Ucan a Jew to raife him a fum of money ; Alcan recommended one Pritchard and Pritchar d introduced him to Vanfommer, who let him have goods to the amount. Alcan at- tended and recommended the choice of the filks, for which Barker gave his note for 2224I. at twelve months date. The filks were afterwards bought by one Ribot for about half the price given for them by Barker. The note was af- terwards indorfed over by James Vanfommer and Paul the filk-mercers to John Vanfommer the filk- throwfter in the fettlement of an account, who was completely ignorant of the tranfafticn with Barker. Tpon Barker's application to the court to compel the delivery up of the note, on payment of what the filks a^lually produced, the Chancellor faid, " 1 am to enquire whether un- " der the mafic of trading, this is not a method " of lending money at an extraordinary rate of " Intereft, and there is not a doubt, that in this " cafe the tranfadion was merely for the purpofc ^* of raifmg money, to fupply the neceflities of ^* ;his young man. Do they deny knowing the ,* 1 Bra C. C. 149. ^* goods 170 PART I. CHAP.V. Similar cafes. Cecil v.Sutioii and Koundtree. lord Pol- warth "J, Cooke. Davifon v, Barnard Fitt. A TREATISE *' goods were to be fold ? I take it therefore as " an advancement of goods inftead of money to *' fupply his necefTities." In arguing this cafe feveral other cafes of a like tendency were mentioned j as that of Cm/ v. Sutton and Roiindiree in the Exchequer, where the defendants fupplied the plaintiff with goods in order to enable him to take up a note, and the court granted an injunction till the amount, for which the goods fold (hould ap- pear. In hord Folwarth and Cooke, his Lordlhip had applied for the loan of 150!. and Cooke gave him 6cl. a gold v;atch and a Cremona fiddle ; and the court ordered the fecurities to be given up upon jrepayment of what was obtained by fale. It will be endlefs to fpecify all the different modes and contrivances, which have been de- vifed by Ufurers to evade the ftatute, but they all fall within the invariable principle, that no contrivance (hall fcreen a corrupt intention of taking more, than the ftatute allows. Thus in Davifon v. Barnard Pitt \ A applied to B for the loan of 1500I. on mortgage: B faid his money was in the funds, and that he had pur- chafed at y^ : if therefore A would take ftock at that valuation, he would transfer as much as J Efp. N.P. I. Pafch.33G. 3. would ON USURY. lyi would amount to that fum : which he did and A part t. gave a mortgage accordingly for ifcci. A iofl: chap, v. two and a half per cent, on the fale of (he flock. The executor of B could not maintain an eject- ment upon the mortgage deed. For in tacl the deed was void by the ftatute : and moreover no adion could be maintained on a contract ufu- liou.s at common law. So wis it aoain deter- mined in rraft v fVilley \ that if the difcounter Pratt *. , Willey. of a bill of exrhange make the holder take goods at a higher price, than they are worth upon a fair eftimate, it is Ufury. But in the Duke of J nca.fi er \. Pickstt "-, the Duke of court refufed to relieve the Duke, who had pur- Pickett. chafed jev.-eL of Pickett and had fold them again for lefs m .ney : but thefe jewels were fold in the common courfeof trade, and not with any view of accommodating his Grace with the means of raifmg or borrowing money upon them. The contrivance of evading the Itatutes of Ufury by thefe forts of fale are fo frequent and various, that Lord Mansfield in fumming up to the jury in the cafe of x ow v. Waller ^ faid, that the moji nfualform of Ufury was a pretended fule of goods. And upon that fame occafion thiS great man de- livered a very fliort comment upon the hdi of Ufury (viz. 12 Ann.) which is the moll f^tif-' ' Efp. N. P. 40. Sit. aft. Mich. 34 G. 3. * I JJro. c. c. 151. 3 Doug. 70S. fadory 17^ Every ex- A TREATISE factory anfwer to the objedlions urgeJ by Mr, Bentham agalnft the laws of Ufury, as breaking in upon the Hberty and defeating the interefl and advantage of individuals. " The ftatute of Ufury *' was made to protecb men, who aft with their *' eyes open : to proteft them againlt themfelves. *' Upon this principle it makes it penal for a *' man to take more, than the fixed rate of In- *' tereft : it being well known, that a borrower *^ in diflrefs would agree to any terms." Every aft will be ufurious under the ftatute, eels ofiegai ^v^.^ere the lender takes a larsrer orofit upon the riotts, whc- loan, than the fixed rate of Intereft, whether fuch ibev in mo- '^y Of profit arife from money or otherwife, or whether there were any contraft with relation thereto or not '. As where one in poffeffion of land made over to him for the fecurity of a certain debt retains his poflfelTion after he has received all, that was due from the profits of the' land. So, Lord Hardwicke faid, in Adlington v. Cami aid ■Jndrezvs "", " Suppofe a mortgage to be drawn " only for 5 per cent, and the mortgagee takes " fix, it would be void upon the word iake^. *' Jt is the fame, whether the whole be referved *' by way of intereil or in part only under that " name, and in part by way of rent for a houfe, ? Hawk. P. C. Lib. I. c. Ixxxii. Gibs, 1070. "* 3 Atk. 154. 3 Ha^^k. PL C.533. Lib. I. c. Ixxxii. " let ON USURY. " let at a rate plainly exceeding the real value.'* According to this it was faid by the counfel in Jejions v. Brookes \ and by the determination aflented to by the court. " A contract is not " lefs ufurious, becaufe no Intereft is referved " upon the fum advanced, if fomething alfo^ as " a horfe, &c. the value of which exceeds the " legal rate of Intereft, is fubftituted in it*s " Head *.'* Yet it does not follow, that every advantage or profit arifmg out of a loan, which exceeds 5 per cent, is therefore neceflarily ufii- ri ous In the cafe of Floyer v. Edwards ', the ground of the adion was ; that the plaintiffs, who were gold -refiners, had advanced crold wire to others in the fame trade, upon the terms of paying fuch a price, if the money were paid within three months ; and if not, then to pay at the rate of an halfpenny an ounce per month over and above the price agreed for ; which in iaift upon calculation exceeded the rare of 5 per cent. This at the trial was found to be the conftant ufage of the trade. A verdift was found for the plaintiff and a queflion referved for the opinion of the court, whether this contrad were Ufiiry. Under all the circumfiances, efpecially the con^ Jlant iijage of the trade, the court was of opi- ' Cowp. 795. • do, Jac. 4^0. Beck v. Samlcrfon, 3 Cowp. 112. and Loft. 595. 7 nion, t73 PART I. CHAP. V. Accorjinf to the ulAge of certain trades more than 5 per cent, nuy be paid. Floyer v. Edwards. 174 A TREATiSE I'ART I. nion, that it did not amount to Ufnry uitliirt ^CHAP. V. jfj(> ftatute. Very foon after this another cafg ^vas tried upon the fame grounds in an action for money had and received before Lord Manf- field at the fittings after Trinity term I'ry;, in rriimBe V. Pi^iJ^ibe\, Carter \ The defendant had paid into Carter. jj^g coutt the Principal and Interefl: at 5 per cent, from the time of his bargain, and the fmgle queftion was, whether the excefs of Inte- refl: fhould be paid .'' It appeared manifeflly at the trial, that this excefs was only to be taken in cafe of delay of payment at the end of three months, and for no other reafon whatever. The vendee was at liberty to have paid the Principal at the expiration of that time. ** I ruled," faid Lord Mansfield at Guildhall, " t^iat the tranf- " a£lion ought to be confidered as not Ufury *' within the flalute. But the hv/ of the land " having declared, that 5 per cent per annuni " was fufFicient for delay of payment, I was of *' opinion that the demand of the furplus was *' an exorbitant demand, and therefore ought *' not to be recovered in an aftion /•/- ?noney ^'' had and reccked,*' which at the trial his Lord- fhip fiiid, " was an equitable action and found- ** ed in confcience under the particular circum- " fiance of each cafe.'* Accordingly the jury found for the defendant. ' Cowp. X16 and 796* In ON USURY. 175 In Jcjlons V. Brooke \ one broker had bor- part i. rowed of another on a note of hand 45I. on ^J^^^^ demand, to purchafe certain goods, that were Every at- then on fale, on condition of halving the future more than profits upon the re-fale. The goods were pur- aiLv/i" chafed and re-fold for 5I. profit: the lender jeitonU. demanded his money within two hours after ^°° *"' the lending, which made it carry Interefl: : and the atlion was brought for 2I, ics. over and above the Principal and Interefl: : the plaintiff was nonfuited : for Lord Mansfield was of opi- nion, in which the three other Judges concurred, " that the intention of the contrail was to gtx. " more than Principal and legal Interefl: upon *' the note, ivh'ich is Vfurj within the meaning " of the flatute.'* And he faid on the fame oc- cafion : There is no contrivance ivhatcver by "which a man can cover U/iirj. Although from the length of time, which has T];e fts.ts.if elapfed fince the paffing of the lafl: act of Ufury operate re- imder Queen Anne, it may be prefumed, that ir°/' no funis of money are fl:ill fecured under agree- ments entered into before that time ; yet as for keeping up the price of the funds, or for other reafons, which induced a late noble peer to lay it down as an axiom, that the lower the legal In- terefl of money i the more conducive to public goody it appears not improbable, that the legal Interell: ' Cowp. 793, mav 176 PART r. CHAP. V. Ufury often depends up- on the in- tention of negociating parties. A treatise! may be foon lowered to 4 per cent, it may not be altogether ufelefs to remark, that " * a con- *' tra6l before the flatute is no way within the *' meaning of it, and therefore, that it is fiill " lawful to receive 6 per cent, in refpe£t of any " fuch contracl." It is alfo to be obferved, that in many money tranfadions the intent and fpirit of the parties will either infect or not the contrad with Ufury. As if a borrower meaning to borrow at Intereft applies for the loan: and the lender fays, No ; but I will fell you corn lead or tin and give day for payment at a rate, that exceeds the flatute allowance ; or I will, to avoid the flatute, pur- chafe a rent or annuity, that fhall be equivalent to the Intereft I require above the allowance by law : all fuch cafes are deemed ufurious ^ : and lii the latter cafe particularly, the Chief Earon Bell faid, ^ this is Ujury although he ne^oer has his Trivcqal again. Kence we may conclude, that there may be Ufury, where the annual pay- ments are not merely made for giving day of payment, which feemS to enlarge the nature of Ufury, (fuch as I conceive it to be by common * Hawk. PI. C. I L. c. Ixxxif. ^ac. 10. How long tl'ie contrary opinion was holden, vid. Vin. vol. xxli. 296, and Walhr V. Penry, 2 Vern. 42, &c. '^ Vin. Ufur. 297, cites Mo. 398. TI. 520. V/icke's Cafe. 3 Tanfcld V, Fincbt Cro. EI. 27. law) ON USURY. J77 law) beyond what it fLriclly is within the fta- part i. tute. And hence does it alfo appear, that every ^^'■' ^^- ^' cafe of Ufury muft fland upon it's own bottom. The nature and extent of oul' national com- Nodefrree« merce neceflarily multiply and diverfify money ufury. tranfaclions, which hold out almdft irrefiflible temptations to monied men to take advantage of the wants and diltreifes of others. The courts however are fcrupuloufly vigilant, in protecting the borrovv'ers from the confequences even of their own improvident importunity and perhaps fometimes beneficial accommodation. The fmallell excefs therefore of Jnterell: taken be- yond the rtatute allowance renders the taker of it liable to the fame rigor and penalties, as if he had been guilty of the moft cruel and unjutl oppreffion. In an information by Mallory v. Bird\ it was faid, " If one contrafls to have " 2ol. for the loan of icol., if he taketh no- *' thing of the 2cL he is not punlfhable by the " ftatute : but if he taketh any tiling, if but one " fiiiUing, this is an affirmance of the contract, " and he (liall render for the whole contrad." Nothing can more firongly mark the nice Thcintcreft oug.'-. t not ta precifion, to which the courts have kept the be wuh- r Tir n 1 i« • drawn o'jr of cafes upon Ufury by the ftatute, than the divi- the Principal fion of the Bench in the cafs of Barn?s v. Wor- wiioie is not advincei. « Cr. El. 20. . N lick. 178 A TREATISE PART I. lick \ Upon idue directed out of Chancery, the ' '^ ■ ■ following cafe came before the King's Bench. Bond lor lool. in twelve months, at 10 per cent, payable half-yearly : and the queftion was. Whether it were not Ufury to receive the 5I. at the end of the fix months ? Fenncr and Yelver- ton held, that when he lent his money for a year, he ought to forbear his Intereft for a year, and therefore it was Ufury to receive any part of the Intereit before the expiration of the year. Popham, Gawdy and Williams held the con- trary, (which is the true opinion,) for in the whole he did not receive more than 10 per cent, per annum. And Coke attorney-general faid, he knew it to be judged accordingly. It is alfo to be remarked, that in this fame cafe it was faid, *' that if he had agreed to take his money " for the forbearance inftantly when he lent it, " that had made the affurance void : for then ha " had not lent the entire fum for one year, and " the other had not the ufe of his money ac- *' cording to the intention of the law. And " WilliaTiis faid he knew upon this difference, " it hath been fo refolved of late time." i,oiiu-di£^- Upon thefe principles are to be determined ftojie, in all the. cafiss upon difcounting notes and bills. wSiani. \n MaJJlix. Daivling^j a perfon paid 197I. for ' Cr. Jac. 25. Yclv. 30. I Rol. 510, ■'^ 2 Str. 1243, 5 a note ON USURY. 179 a note' of 200I. which had three months to run, and at the expiration of that term took another note of 2Col. upon advancing 3I. more for other three months. And upon iffue out of Chancery, Lord Chief Juftice Lea held it Ufury. But in the cafe of Lloyd y. Williams, ^ Jiidge Blackftone faid, " he conceived that Intereil *' may as lawfully be received before hand for *' forbearing, as after the term is expired for " having forborn. And i niall not be reckoned " as merely a loan of the balance j elfe every *' broker in London, who takes 5 per cent, for *' difcounting bills, would be guilty of Ufury. " For if upon difcounting a lool. note at 5 per ** cent, he fliould be conftrucd to lend only 95I. ** then at the end of the time he would receive *' 5I. Interefl: for the loan of 95I. Principal, *' which is above the legal rate." Yet in the cafe of Auriol and another v. Tho- in difcount- mas"^^ it was determined that in difcounting tra charge' . c r 1 • r !_ • allo.-ed for notes the common uiage or charging lo;netning trouble, &c. for trouble hz, beyond the rate of legal In- terefl was not ufurious, provided no corrupt bargain were made for taking ufurious Inte- reft. In this cafe Fuller J. faid, " Ben/on and " Parry at Hereford was determined on a mif- '' take J but when it was more maturely confi- * 2 Blackft. 793. • 2 Terrr.. Rep. 32, N 2 " dered i8o A TREATISE PART I. " dered by this court on a motion for a new iiiMW. (( trhl, they were unanimoufly of opinion, that " extra charges might be allowed, though they " amounted to more than 5 per cent, if they *' were fair and reafonable, and not as a color " for Ufury ; and there a new trial was granted. *' Thib doctrine was again recognized in two *' i\7/f Prlus cafes, the one before Lord Chief " Baron Eyre on the circuit, the other before " me at the fittings at "Weftminfler. So that it " is now clearly fettled, that the party is sn- " titled not only to take 5 per cent, for legal " nterefl, but alfo a reafonable fum for remit- " tance and other incidental expences, &:c.*' Grofe J. obferved, '^ that the fame doctrine *' bad been confirmed in the Common Pleas. " And the line, which has been taken, is^ that " if the fum charged be not a color or a ikreen " for Ufury, but is only fair and reafonable^ it " ought to be allowed. This is like the cafe -'' fome few years ago, where the Indian Interefl " (viz. 9 per cent.) was allowed here on a bond " given in India." That was the cafe of Bodily V. Bellamy \ The cafe which Buller J. re- ferred to, ^s determined before himfelf, was that of Wii:cb qui ta?n v. Foin^ Sittings after Hillary 1786, B. R. In an action for Ufury againft the defendant, a banker at Sudbury, it * 2 Bur. iog\, appeared. ON USURY. i8i appeared, that it was their conftant ufage to dif- count bills in London for their correfpondents at Sudbury, and "for which the bankers charged beyond the legal intereft for the time the bills had to run 5s. per cent, on the grofs fuifi, without any reference to the time, which the bills had to run. The Jury found for the de- fendant under the Judge's dircftion. Notwithftanding it were enacted by the 13 th or taking of Elizabeth, that the aft of 37 Henry VIII ^e^tupon"' thereby revived (hould be moft largely and """^guTn"' flrongly conftrued for the re'prclling of Ufury, '^''^• and againfl all perfons, that Ihall offend againft the true meaning of the faid (latute by any way or device direftly or indireftly, yet have the courts gone very great lengths in keeping certain tranfaftions out of the ftatutes, which upon the moft cool minute and impartial review appear to fall direftly within the fpirit and principles, upon which Ufury is at ail prohibited : for if on ac- count oF the omiffion of a lender to pay off the fum borrowed at a given time, the lender may - make a greater advantage of his money, than the ftatute otherwife allows of: it mufl be admitted, that the prohibitory law will become fe/o de fe : it's avowed objeft is to proteft the indigent and the diflrelfed from being opprelTcd by the exor- bitant demands of opulent lenders. And yet, the law in this cafe converts the very indigence of N 3 the 1K2 A TREATISE PART I. CHAP. V. The powef of the bor- rower to re- pay the Principal keeps It out of the fta- tute. the borrower, which is his inability to repay the- money borrowed at the given time, into the formal juftification of the borrower's raifing his demands upon him above the ordinary rate, and thus taking legal advantage of his poverty and dillrefs. By this ceafes that foftering prote£lion, which the law profefles to hold over the diilrelTed : for the legality infuch cafes of taking more than five per cent, evidently arifes out of the diftrefs of the borrower, who is thereby difabled from redeeming or paying off the fum borrowed within the limited time. As I profefs myfelf incapable of reconciling thefe determinations of the courts with the principles, in which I con- ceive the laws againft Ufury are founded, I lliall be particularly cautious in quoting the authorities, which command fubmifllon. Sergeant Hawkins in extrading the pith of the different determinations upon this fubject fays, " ' That the refervation of a greater fum, " than is allowed by the ftaiute for Jnterefl: " upon the non-payment of the Principal at the " end of the year is not ufurious within the *' ilatute, becaufe it is in the power of the bor- *' rower to avoid the payment of the money fo " referved, by paying the Principal at the day ^' appointed: yet it feem.eth clear, that if it were > Hawk. PLC. rL.c. 8.S. \q. '^ originally ON USURY. 183 *« onglnally agreed, that the principal money part 1. '' fhould not be paid at the time appointed, and ^"••^^- ^; " that fuch claufe was infer ted only with an in- " tent to evade the flatiite, the whole contrad " is void: for the conftruftion of cafes of this " nature mufl be governed by the circumftances " of the whole matter, from which the intention *' of the parties {hall appear in the making of " the bargain, which if it was in truth ufnrious, " is void, however it may be difguifed by a fpe- " cious aifurance." Is it poflible even to con- ceive an intention under fuch a contract, that does not directly go to enfure more upon the loan or the advancement of money, than legal Intereft ? for if the lender intended to take no more, why not exprefs the rate of five per cent, as well as a larger given fum ? And is it poflible to invent a more fpecious and more effedlual mode of fecuring exceffive Intereft upon the loan pf money from a difirefTed man, than to lend him without Intereft for a fhort time a fum of money, for which, if he repay it not at the given period, he may be legally forced to pay the moft exorbitant rate of Intereft, that ftiall have been previoufly demanded of him. There are how- ever feveral ftrong cafes in fupport of this doc- trine. In Burtons cafe ^ lool. were advanced and a Burton'.. ca'e. 5 Rep. 69. N 4 rent i84 A TREATISE PART I. ^^^^ of 2 pi. per annum granted by the borrower CHAP. V. to commence one year and a quarter after the money was paid, provided it were not repaid at the expiration of that time. So that if the grantor of the rent had paid the lool. on the day appointed, the rent would have ceafed, without any thing having been paid for the i ocl. *' So that the court faid, it was a plain bargain " and purchafe conditional of fuch rent and no " Ujury. It was in the eledion of the grantor ** to have paid the faid locl. and to have fruf- " trated the rent, fo that the grantee (as the na- *' ture of Ufuiy is) was not affured of any re- *' compence for the forbearance of his lool. for *' a year, and the faid rent of 20I. per annum " is but a penalty to the grantor, and alTurance ^' to the grantee for the payment of the faid *' lool." "But it was refolved by the court, that if it had been agreed, that the money fhould not be repaid at the time, then indeed it would have been Ufury. " And Popham Chief Juf- " tice faid, that if A comes to B to borrow " I col. : B lends it him if he will give him for " the loan of it for a year 20I, if the fon of A " be then alive, this is Ufury within the fta- " tute." This however would be Ufury merely on account of the flightnefs of the hazard an4 ' Brit. Ufur. pi. I. cites 2<^ Hen.VIII. Cumb. Garr.itt v. Foot, I . the takea. ON USURY. 185 the avowed intention of the party to evade the part i. {latute. *^v!l:^^- It was faid in Roberts v. Trcjiiayne * by way The pover- of- elucidation of the cafe before the court " if rower in " I lend to one lool. for two years to pay for the caufeof ** the loan thereof 30I. and if he pay the Princi- te.'eit being" *' pal at the year's end he Ihall pay nothing for " tnterefl:, this is not Ufury : for the party hath '' his election, and may pay it in the firft year's " end and fo difcharge himfelf." Now who does not fee, that the mere dillrefs of the party, may in fuch a cafe render the demand of the moll exorbitant Interefl even legal? And how will it fupport the humane principle and fpirit of the law by relieving or protecting the diftrelfed : or as Lord Mansfield faid, by proteBlng mm with their eye; open againji themfehes f'" Foi^ it is evi- dent, that the perfon lending the lOol. under fuch a condition mufl have intended to take more thrm legal Intereft upOn the loan, and have confided when he lent the money, that the po- verty of the borrower would fecure to him the payment of his exorbitant terms. I rell the propriety of thefe obfervatlons upon the cafe of Moore v. Battle '^^ v/hich appears to mc to overfet all the reafons and principles, upon yhich the cafe of Burton and fuch other cafes \ Cro. Jac. i;o9. - Ambler 371. have i86 A TREATISE PART T. CHAP. V, To take ftock at par, and when it 13 under wfurious. Moore v. Battle. have been determined. Dr. Battie at the requefl: of Moore fold out loool. South Sea Annuities at a lofs upon the whole of y'X, and took a mortgage for locol. from Moore at five per cent, reducible to four per cent, if the money were repaid in a given time. Dr. Bat- tie afterwards fold out at Mr. Moore's requcfl 1400I. South Sea Annuities at a lofs upon the whole of 267I. 15s. and took another mortgage from Moore for 1400I. with Intereft at five per cent, with a power to Moore to reinftate the 140©!. at any time within two years. Upon a bill for foreclofure, the Mafter reported the two principal fums of loool. and 1400!. with In- tereft and cofts due thereupon ; which having been paid by the plaintiff into court, he brought his bill (inter alia) for being paid the feveral fums of 7 61. and 267I. 15s. with Intereft in- fifting that the defendant ought to have been charged with them in the accompt. The defen- dant pleaded the proceedings under the decree in bar : and his plea on being argued was or- dered to ftand for an anfvver : and two queftions were made. ly?. Vfhcikeritnjcere Ufury? sd. Whe- ther the court would relieve "t " As to the firft,'* faid Lord Keeper Henley, '* / a?n char of opinion, *' that it is ajloift within thejiatide ;" the plain- tiff having paid more than five per cent, upon the fums a^ually advanced viz. 924I. inftead of locol. ON USURY. 1S7 loccl. and 1132I. 5s. in lieu of 1400I. Yet it is part i. evident in the firft tranfaction, that if Mr. ^"•'^p- '^• Moore had repaid the money within the time at four per cent, no ufurious Interell would have been received : and in the 2d, had he re- placed the flock, he might in faft have avoided paying any Interest at all by purchafmg in at a lower rate, than the defendant had fold out. And, as Lord Kenyon obferved in Tate v. Williamsy " a mere loan of (lock is not ufurious, nor " the payment of the dividends in the mean *' time, though they exceed the legal rate of *•' Intereft. In this cafe the loan was not origi- ** nally ufurio'ts during the firft year, becaufe the ** party borrowing it had it in his poiver to repay ** the money cr replace the Jlock itfelf if he had « chopir The cafe varies, where the Principal is really when Pria- put in hazard. And here the diftinclion holds intereft wh which was taken by Dodderidge in Roberts v. hnotuiury. ^Jtremay e ; which, as it was obferved by Cham- bre counfel in the late cafe of ^ Morfe v. Wilfon, has always been confidered as the rule, upon ivhich qucjlions cf this fort muft be decided. *' If ** I lend lool. to have i2cl. at the year's end " upon a cafualty : if the cafualty goes to the " Intereft only and not to the Principal, it is •* Ufury : for the party is to have the Principal * 4 Tcrrr. Rep. 3 $3. *' again. i8S A TREATISE PART T. CHAP. V, Sharpley V. HurKl. Sottomry bonds not ufurious. " again, come what will : but if the Principal " and Intcrefl are both in hazard, it is not then *' Ufury." Such was the cafe of Sba?-j^ley v. Hurrcl ' where a man advanced money to vic- tual a Newfoundland {hip on condition of receiv- ing fo many fifh, far exceeding the legal rate of Intereft with the Principal in cafe the fhip re- turned to Dartmouth, and the Principal only in cafe fhe arrived elfewhere, but nothing in cafe fhe did not arrive at all. The court held it 7iot to be Ufury : for the lender ran a hazard of having lefs than the Intereft in one cafe, and of lofmg t>oth Principal and Intereft in the other. All cafes of bottomry are grounded upon the reality of the hazard, and therefore are not with'n the ftatutes of Ufury, and the exceffive Intereft, that is allowed to be taken upon fuch contrails is not permitted in favour of trade, but for the reafon already mentioned, and becaufe there are not words in the ftatutes to reach hot- iomry bonds. This doclrine was moft exprefsly recognized in the famous cafe of Lhcjlcrfield v. 'Jajij.n \ where Lord Hardwicke \\as affifted by ^ Cro. jac. 2oS. "^ 2 Vcz. I a J. I Atk. 301. and 1 Wilfon. 2S6. In this cnfe J. Burnett faiJ, " That, the truL' rtafon, wliy tli77. Bulkky V. Guildbank. Do. 646. Prefcot's Cafe. intfnt «( year, J02 A TREATISE PART I. CHAP, V. Le Grange V. Hamil- ton. " year, and no covenant for the mortgager to " take the profits till default be made in pay- " ment, fo that in flrlctnefs the mortgagee is en- " titled both to the Interefl and Profits, yet if *' this was not exprefled the agreement is not " Ufury." So in Murray v. Hardinge ' which turned upon the point of an annuity being ufurious, (and which I fhall notice more fully hereafter) the tranfadlion was holden not to be ufurious, although the fcrivener in drawing the deed had recited, that it was a loan of money, con- trary to the facfl. In a late cafe, Le Grange v. Hamilton '^ the ef- fe£l of the intention of the parties was very ac- curately confidered. The cafe turned upon the conftruclion of a fpecial memorandum indorfed upon a bond given for payment of lool. with Interefl: at five per cent, in payments of 20I, yearly by quarterly payments of 3I. each. The indorfement was to this effe£t : that at the end of each year, the years Intereji due was to be added to the principal fum : and then the 2cl. received during the year to be deduced, and the balance to continue as principal. Lord Chief Jufliice Kenyon interpreted the words of the me- morandum, the years hiiereji due to mean upon the whole fum of lool. : which admitting the ^ 3 Wilf.390. 2 Bl.Rep. 859. ' 4 Term. Rep. 613. quarterly ON U S U R Y. 203 ^juarterly payments to have been made in the part i. courfe of the year, would have been ufurious. ^i^^"^ But the other three Judges laid it down as the l^afis of their determination, that if the words .could bear a legal conflruction, it ought to be given to them in favour of the intention of the parties, v^hich did not appear to be ufurious : and it was accordingly fo adjudged. For in fact, that which zuas due at the end of the year, was !n- terefl upon the refidueof the lool. after the fuc- ceflive deductions of the quarterly payments: for no Intercjl could accrue due upon any part of the Principal, that had been paid off. Before the pafTmg of the 14th of his prefcnt ofWedi. Majefly in Stafleton v. Con-zuay ^ Lord Hardwicke faid, " That upon a contract made in England ^' for a mortgage of a plantation in the Weft In- " dieSj no more than legal Interefl fhall be paid ** upon fuch mortgage ; and if in fuch cafe there *' is a covenant in the mortgage for payment of *' eight per cent. Intereft, it would be within *' the ftatute of Ufury, no'iwithflanding this is *' the rate of Interefl:, where the land lies." The Legiflature thought proper, as we have ^qqvi to alter the law : and that in a very fmgular man- ner. It gave to all exilling mortgages and fecu- rities the fame efficacy, as if they had been exe- puted on the fpot : but upon future mortgages ' 3 Alk. 727. and more fully i Vcz. 427. and dlaii fecuri* tics. 204 PART I. CHAP. V. Scott V. N'tibiU. PifTcrence between a derivative and original mortgage. A TREATISE and incumbrances on Irifh and Weft Indian edates it allowed only of an additional one per cent. It is alfo to be remarked, that the doctrine of Lord Hardwicke flill holds good, as to any loans mortgages or other fecurities executed in Eng- land upon any other parts of the Britifli domi- nions, except Ireland and the Weft Indies \ In Scoft and Ncjbitt ' the dowager Lady Mac- clesfield had lent feveral thoufand pounds on a bond to Nefbitt at eight per cent, and the money was alfo fecured by mortgage of plantations in Barbadoes and Tobago at fix per cent. This was in 1772, two years before the paffing of the 14th of his prefent Majefty : and the bond was admitted to be clearly ufurious. It is to be re- marked, that the aft fpeaks only of bonds co- venants and fecurities for the fame fums as are fecured by mortgage: and in arguing this cafe, it was infifted, that this bond at eight per cent, was a different debt from the mortgage at fix per cent, and that it varied alfo as to the equity of re- demption. A difference was alfo made between the transfer of a mortgage on fuch plantations and a derivative mortgage, which becomes a new tranfaflion. The firll is clearly within the words ^ I fhould rather prefame, that this A61 does not extend its cffe<£ls to any Weft; Indian iilands, which were not in pofTef- fion of Great Britain at the time of pafiing the A6\. : as St. Domingo Martinico Guadaloupe, &c. ' 2 Bro. 641. and ON USURY. 205 and purview of the ad, and tends to the advan- tage of the mortgagor by keeping off the payment of the money borrowed for the improvement of the eftate : the fecond affe£i:s not the original mortgagor, but is only for the benefit of the mortgagee, and falls not within the reafon prin- ciples or words of the atl. In Dcwar and Spaji^ it was determined, that Dewarv. Span. where a bond was given in England at fix per cent for fecuring part of the purchafe money of a plantation in the Well Indies it was ufurious ; for that the ad: docs not extend to peffonal con- trads. And Lord Kenyon added, " If the pre- " fent attempt were to fucceed, it would fap the *• foundations of the ftatutes of Ufury." Having before hazarded a definition of modern Ufury (p. 194) into which the neceflity of a loari enters not, and having endeavoured to fiipport by authority the polhbility of committing Ufury without a loan of money, in the ordinary accept- ufury with, ation of the word loan, I beg leave to arreft the attention of my reader to the conduit of the court in this cafe upon that very point. It was urged by the Counfel againft the bond's being ufurious : " Neither can this be called Ufury «' within the general ftatutes of Ufury, for they " relate only to loans of money : but here was " no loan at all." And they quoted Teoman v. * 3 Term. Rep. 425'. BarJIoitJ out a lo2B. 2o6 ATREATISE PART I, Bar/low ' where the plamtill being pofTefTed of y^^- ^^-j hammered money to the amount of 300!. made it over to the defendant on his promife to pay 300I. with 4I. 10s. ot Interefl for each lool. for forbearance to the end of eight months. After non ajfumpfit pleaded and verdid found for the phuntiff, judgment was entered up after feveral arguments by counfel and two terms delibera- tion by the court. On which occafion Powell J. faid, that as the confideration of the pro- mife was, quod qiiarcns folveret pradi6lo defen- dcnti 300I. there was no loan^ without which there can be no Ufury. But Lord Kenyon, the three other Judges concurring took no notice of the objection, although there were no loan in the principal cafe : but difcharged the rule foJ" fetting afide the nonfuit entered againft the plain- tiff on the ground of Ufury. So alfo in Vezey's report of Stapleion v. Conivay, which turned upon the rate of Intereft, which 2cool. charged by fet- tlement on an eflate in Nevis fliould bear, the counfel urged, that this being a fum of money to be raifed out of an eflate, it mud be confi- dered as coming out of a fund in that ifland, and to bear the rate of Interefl there, viz. lol. per cent, for fo much is money worth there : and this not being a debt or loan, flood clear of any ob- jedion upon the ftatute of Ufury. But as Lord ' I Lut. 271. Hardwicke ON USURY. 20; Hardwicke in this cafe directed only five per part l cent. Interell upon this fum of money and ex- ^^^^^J^ prefsly faid, that every contract made in England for money fecured abroad at more than five per cent, was ufurious j it muft be allowed, that he would have confidered the taking of more than five per cent, upon this charge as ufurious : and yet in the ordinary acceptation of the terms, it was neither a debt nor a hart. It is to be remarked upon this ftatute, that EfFeaofthf . 14th cm. the firfl thing, which it ena(^s is, that all mort- gages and fecuritics for monies upon land in Ireland and the Weft Indies then executed in Great Britain, and all bonds covenants andfecu- rides for payment of the fame fums of money, fiiould be as good valid and effeftual to all in- tents and purpofes, as if they had been executed in the country, where the mortgaged lands lay. We muft then confider of what validity and ef- fe£t the mortgage and bond would have been in this country, in cafe they had been really exe- cuted in Ireland or the Plantations. It will be ufelefs to confider the effefl of the mort2;ao:e deed, in as much as it gives remedy on the mort- gaged land : for that cannot be enforced, where the land lies not, as is evident. But if the mort- gage deed contain a covenant for the payment of the money, as moft mortgages do ; then the queftion arifes, Will the covenant and bond for the 20$ A TREATISE PART t. CHAP. V, Effeiftsof perfonal ContratSs en- tered into in foreign countries. the Principal and Intereft at the rate of the coun* try, in which they were entered into, follow and render the pcrfon of the covenantor and obligor liable to be fued and arrelled under a judgment in our courts for the Principal and intereft ex- ceeding live per cent? We muft not lofe fight of the limited operation of this aA, which ex- tends not to perfonal contrads generally, as was determined in Dezvar v. Span^ but only to fuch bonds and fecurilies, as are given for the pay- ment of money fecured aifo by mortgage. Now a bond given by a mortgagor for the payment of loool. which he has alfo fecured upon his land, is a perfonal coiitrad : and an additional remedy given to a mortgagee for enforcing the payment of his mortgage money. Under the 14th of his prefent Majefty fuch perfonal con- tracts entered into here, as are coupled with mortgages for the fame fum in Ireland or the Plantations will operate exactly in this country, as if the perfonal contract had been entered into in the country, where the exceffive Intereft was legal. And then the cafe will be clearly de- cided in Bodily and Bellamy ', where an adion was brought here in B. R. upon a bond entered into at Calcutta, vv'here both parties then refided and the plaintiff" ft ill refided ; but the defendant * 2 Bur. 1094, was- CHAP.V, ON USURY. 209 was in England : and nine per cent, was the part r. rate of Intered made payable by the condition of the bond. Lord Mansfield faid, " The plain- " tiff is in juflice entitled to recover the fum " really lent to the defendant, together with In- " dian Interefl; till the figning of the judgment : ** but -vvith only legal interefl: of this country *^ (which is no more than five per cent.) from *' the time of the liquidation of the debt by the " judgment." Whence it is clear, that a bond given in a foreign country for money at the legal rate of Interefl of the country, where it was executed may be put in fuit in this coun- try as fully for the Principal and fuch Interefl, as if it had been executed in London for money at five per cent. This is founded upon gene- ral principles of law and equity. For the origi- nal contraft in this cafe was entered into by parties able and willing to contraft, the one binding himfelf to the other to perform that, which the lex loci permitted. 1 he condition, which the Roman law required for completing a good and valid contrail here occurs, which is the affent of the party to be under an obliga- tion of carrying into effed that, to which he af- fented. ^Animus utriufque confcntit perduci ad effc^iun id, quod inchoatur. That, which is here * Powcl on ContraAs, i vol. viii. P alTcnted 2ro ' A TREATISE PART I, aflented to be performed is the payment of In- CHAP, v.^ jjj^j^ Interefl: (nine per cent.) upon the money due : and it fliall be done accordingly. " ' Cum *^Judicio bo7ia field difceptatur, arbitrio judicis " Ujurarum mcdiis ex more regionis, ubi contradum " ejly conjlituitur'' 2d. We are next to confider. What remedies and rcdrefs the courts have applied to the injured parties. Who are the Lord Mansficld in Browning v. Morris * has tiTin ^"' been very explicit in defcribing the injured par- ^^■"'■y* tics in matters of Ufury. . *'• Where contrafts *' or tranfadions are prohibited by pofitive fla- '^ tutes, for the fake of proteding one fet of ** men againfl another fet of men, the one from *' their fituation and condition being liable to be ** impofed upon by the other ; there the parties " are not in pari dclido : and in furtherance of " thefe flatutes the perfon injured, after the ** tranfaclion is iiniflied and completed may " bring his adion and defeat the contract. For " indance by the ftatute of Ufury, taking more " than 5 per cent, is declared illegal and the *' contrad void : but thefe flatutes were made *' to proted needy and necefiitous perfons from *' the opprelTion of Ufurers and monied men^ ' DIgeflor. 1. 22. tit. I. * Cowp. 79a " who ON USURY. 211 <* who are eager to take advantage of the dlf- part i. «' trefs of others : whilft they on the other hand p"^^^- ^\ ** from the preffure of their diftrefs are ready " to come into any terms, and with their eyes ** open, not only break the law, but complete *' their ruin. Therefore the party injured may " bring an a£lion for the exccfs of Interefl:.'* I fliall not here go again into the queflion, whether the common law concerning Ufury be or be not abolifhed by the a6l of Henry VilL If, as I contend it be iiill fubfifting, then the in- jured party certainly retains all the remedies and redrefs, which the common law ever gave. Now there cannot be ftronger evidence of what the common law once was, than the anfwer of the Ufuryat •V ' ' r 1 common Kmg to the petitions of the commons (6 Ric. II.) law. *' Touching Ufurie the King willeth, that the " laws of the church ihould difcufs the fame. *' But if any man be grieved by Ufurie upon *' accompt trefpafs extortion oppreffion falfehood *' deceipt or fuch like means the lazus and cujloiiu *' of the realm (hall punifli the fame." So was it faid in the cafe of Saunderfon v. Warner ' that Ufury was " of mixed conuzance and may be " enquired of in the ccclefiaflical court, car la ** ejl brief de confultation for fuch as are fued for " Ufury in court chrlftian : and fo that appear- * 2 Rol. 240. P 2 *< eth. 212 A TREATISE Uiurer pu- iiilhed at common law. Kingv. Walker. Ufurious contra*ft avoids the I'lcurity. " eth in the patent of Edward I : and fo In " An in the time of Edward II, they en- " quired of Ufurers Chrijiiani jttdai-zanies, and *' fome were indlcled and pardoned, but not *' freely ; but with a dum tamcn^ that they fhould " not do fo any more. Hil. 1 6. Edw. III. Rot. 28. *' John Hecker in the Counter for Ufury, and " removed by a csrtiorari into the King's Bench *' and committed, and fo there are many others *' about the fame time." Before I come to the remedies given by the ftatutes, I beg leave once more to remind my reader of the cafe of the King V. Walker ' (19 Car. II.) to prove that the common law concerning Ufury furvived the paffing of the 37th of Hen. Vill ; where upon proving th^ tcking of exceflive Intereft though without any previous corrupt agreement, the court paffed judgment upon Walker at common Iww, viz. fine and imprifonment. VvTell did Lord Mansfield % in Lowe v. Wal- ler, that ihi jlaiute cf Ufury luas made to prcte5f PW1, zvho ccl ichh their eyes cpen, to prcte3l them c-gc.j-ijl themfel'ves. The firft fort of protedion, which it affords to the injured party is, that it avoids every deed bond or fecurity, which he may have entered into, fo that they cannot be enforced againfl him. This feems to be an af- » Sid. 421. firmance ON USURY. 2T3 firmance of the rule at common law, that no ac- part i. ihniv'dlHe upon an upirioiis contracl. The cor- ^"-^p- '^- ruption of the contracl infe£ls or taints the fe- curity, which is given under it. llie courts however appear to have varied in their deter- minations upon the efFefts of the fecurities given under ufurious contrails. In Ellis v. Warnes an ' ufurious bond for lool. was given by Warnes to one Alder, who afterwards became indebted to Ellis. Then Warnes and Alder af- tiiisv. figned this bond to Ellis, who was not privy to the ufurious contracl ; and it was judged by Gawdy Yelverton and Williams, (fur grand dAiberation fays Moore) that the bond entered into between Alder and Warnes xt^as not void in the hands of Ellis, becaufe it was fro vera dcbito and he was not privy to the Ufury, notwith- flanding it were made upon an ufurious contrail between A'dcv and fVarnes. But Hiys Crokc, " Fenner doubted thereof, becaufe it being *' grounded upon corruption is altogether ill. ** And every one is to take heed of his alTurance *' at his peril." Popham was abfent ; whereby the other three adjudged it for the plaintiff. The principle, upon which this cafe was deter- mined appears to have been abandoned in I^ter determinations. ^ z Cr. 32. Moore 75:;. 1'3 In 214 A TREATISE PART T. CHAP. V. Void fccu- rities cannot after be- tonie good. In Lowe v. Waller a note given upon an ufu- rlous contrail was negociated for a valuable con- fideration and without notice of the Ufury : and the court held it void in the hands of the indorfee. For faid Lord Mansfield " the words " of the a£l are too ftrong. Bcfides we cannot " get over the cafe on the ftatute againfl " gaming, which flands on the fame ground." This was the cafe of Bozuyer v. Barnpton * upon the conftruSion of the 9th of Ann. c. 14, where a promifTory note given for money knowingly lent to game with was adjudged void in the hands of an indorfee for valuable confideration and without notice. And the court held, that it would be making the note of fome ufe to the lender, if he could pay his own debts with it. On the like principle had been determined the cafe of Goldf?nith v. Bunning ^ though it were not cited in Loive v. Waller, where a note given to a maid-fervant for procuring a match was holden void in the hands of the man, who mar- ried the maid-fervant upon account of the money he thought her entitled to by the note, although ignorant of the confideration, for "which the note had been given. For the more effectually preventing the prac- * z Str. 1 155. * 10 Mod. 448. tice ON USURY. 215 tice of Ufury upon necellitous and dlftrefTed part r, borrowers, the courts have continued to increafe chai'. v. multiply and extend their remedies in propor- Remfdies tion, as the ingenuity of monied men devifed IJ'i^h'fhrex- new means of evadincr the flatutcs in their bar- *^"*'°" °f o theewl. gains with the diftrefled and needy. Thus in the year 1693 ^^ Tomkyus v. Barnct ' Chief Juf- ll.'^.l-Z tice Treby would not fuffer an obligor to reco- \^<^^ll'^^^^J ver back money paid upon an ufurious bond, party only, alledging, " That where one knowingly pays other has his " money upon an illegal confideration, the par- ** ty that receives it ought to be punifhed for his *' offence : and the party, that pays it, is par- *' ticeps crimi?2is. and there is . no reafon, that he ^ ■' Contra " fhould have the money a?^ain ; for he parted 'lo^^kyns v. Barnct. " with it freely, and volenti mn fit injuria.** When a fimilar cafe came before Lord Tal- bot in Bofanquct and Da/hzuood ^ his Lordfliip feemed to doubt whether the cafe of Tomkyns V. Barnet were law -, and he obferved that the maxim volenti non jit injuria, holds in all cafes of hard bargains : and that the party opprcf- fed in Ufury is not properly particcps criminis, for bis 7ieceffitics oblige him to fuhmit to thofe terms. The courts have now entirely over-ruled the cafe Nowovf.- of Tomkyns v. Barnct according to what Lord Mansfield faid in Brozvning and Morris, that the ' I Sulk. 22. ' For. 38. and Caf. in Chan. jS. P 4 party 2l6 A TREATISE PART I. CHAP, V. The rule df pant ate TJorrower having re- paid the money may give proof of the con- trait. Competen» cy and cre- dibility of wjtnelTes. party injured might bring his action for the ex- cefs ol Intereft. The rule feems to be now fet- tled, that where the crime and penalty fall upon one parly only, (as in Ufury upon the lender, in Infuranccs upon the infurer,) there the other has his aOion. ' But in bribery flock-jobbing gaming &c. where both parlies are equally cri- minal it is otherwife : and in thefe latter cafes, the rule holds in pari ddido potior eft ccmditio de- fendentis. It has alfo been now decided, that a borrower under an ufurious contract, when he fnall have repaid the money, is a good witnefs to prove fuch repayment as well as the ufurious con- traft itfelf : for if he had not repaid the money he might avoid his own act and deed. And yet the borrower may be a witnefs ^, though he fliould not have repaid the money, provided the Ufury neither affecl the debt, nor avoid the contract. The determination, which fettled thefe points was in Abrahams qui tarn v. Biinn ' in which Lord Mansfield entered with great learning and precifion into all the cafes, which before alTeLted the fubjefl-, and he frankly owns, ^ Jaques V. Go'i^/j/Iy. 2 Black. 10 74. » Hawk. PI. 1. 1. c. 82, S:d. 27. cites Hard. 331. Co. Lit. 6 h. 2 Rol. 6Sv 2 Raym, igi. b. 1. 2. c. 46. S. I Vent. 49.' I Sa!k. zd^. 2 Gtr, 1045. 3 4 Bur. 2256. that ON USURY. 217 that the cafes are contradictory and it is impojjtble part i. to reconcile them. By this however it is now fet- chap, v^. tied, that the true diftinftion between the conu -petency and credibility of a witnefs, which had not been before fufficiently attended to, confifled in this : that where his intereji is concerned, it fliall go to his competency^ where his influence only, it fhall go to his credit : and where the matter is doubtful, the objedion ihall go to the credit. This was a very important decifion in favour of the opprefled agalnfl: the Ufurer, for it broke in upon that fecrecy of tranfaftlon, which heretofore prevented many ufurious con- trads from being brought into court, from the fuppofed inability to produce proper evidence of what palled only between the lender and bor- rower. The advantages, which the borrower acquires in thefe cafes upon repayment of the money are founded upon a principle of equity. So in Fiizroy v. GwilUm ' which was an a6lion oj trover for goods pawned under an ufurious cc itraft and afterwards burnt. Lord Mansfield faid, " This is an equitable a6lion brought by ** the plaintiff to be relieved from an ufurious " contraift. She mud therefore come with clean " hands according to the principle laid down " in the cafe of Bofanquct and Dajlrjuood, that * I Term. Rep. 1 53. Vide alio IhJ^cs v. Lovatt. Loft. $t. " thofe nonies lent. 2i8 A TREATISE PARTI. ** thofe who feek equity mtiji do equity,'* And CHAP, v.^ ^g jj^g plaintiff had not here repaid or tendered the money received, fhe was not -entitled to the benefit of this equitable action. Borrower's Wc have already feen, that the party in- tcr repay- jurcd Dv the uiunous contracl may brmg nis d:rof all a6lion for the excefs of Intereft, and after he has repaid or tendered all the money borrowed, he is further capable of fuing the Ufurer for treble damages as well as a flranger. But every fuch a6\ion or information muft be brought within twelve calendar (not lunar) months * from the time of the a6^ual taking of the excef- five Intereli. For till then the ufurious aft, for which the ftatute gives treble forfeiture is not complete, as we have before feen in the cafes of Fijlier v. Beazely and Lloyd v. Wi/iia?ns. Although an information or qui tarn action upon the flatute muil be brought within tv/elve months from the comniillion of the act of Ufury, yet there is no limitation of time, by which ihe injured party is precluded from applying to the court to take advantage of the nullity of the deeds and fecurities under a corrupt contracl. ^ Noy. Ji7. as noted per Popliam. 6 IMontlis upon the Stat, of Ufury fhall be accompted half a year according to the almanack and not according to the 28 days in the month, which none gainfaid. Vid. alfo i Leon. 96. 6;V JVooIaJton Dixy's Cafe. 2 IC ON USURY. 219 It feeras to have been an admitted rule, that part i. " where the firfl contract is not ufurious, it fliall 1^/^^^-^]' *' never be made fo by matter ex pojl faSlo\" Further rc- So on the other hand, If a bond under a corrupt "hi borrow- agreement be made for more than legal Intereft, -nghis^owa' yet although the exceffive Intereft be tendered, ^^' and not received it will not be Ufury within the ftatute to make a treble forfeiture, but the obli- gation itfelf is void * : ^od ah initio non valuit^ tradil temporis von valebit. It is almofl; impof- fible to retail all the advantages, that can accrue to the injured party by this avoidance of all the deeds and fecurities, which he may have entered into to his own tort. Nay even if a judgment be given upon an ufurious contrad, and it be a part of the agreement to have a judgment, the defendant may avoid fuch judgment by audita querela^ or hy fcire facias brought on the fame, as it was determined in the Earl of Oxford's cafe ^ So may fines levied upon ufurious con- tra6ts be avoided by averment, as in Fermor's cafe^, I find In the cafe of the ^ ^leen v. Sewel alias * Buir. 17. Hil. 7 Jnc. Anon. ^ 2 Le. 39. Arg. in Fa/i HenlecVs Cafe. 4 Le. 43. ?1. 117. Trin. C. B. Brown and FiMye's Cafe. 3 Lc. 205. PI. 260. Trill. 30 El. in Sac. Body v. Tajfd. 3 Chan. Rep. 9. cites M. 3. Juc. Ilanmio v. Cajor, * 3 Rep. 80. ^ 2 Mod. lit?. Bcaus 220 A TREATISE common law. PART L Beans as reported by Farrefly, that the defendant CHAP. V. ^23 indi5icd for Ufury, in taking 9I. for the ufe of indiament A^- for a year contra formvin Jiatiiti : although, muftbeTy as before obferved, the Oatute give not remedy by indiclment. " And the profecutor, (who " was the borrower) was produced as an evi- *' dence and fworn by Holt de hen", ejji, as he " faid.** And Holt on the occafion declared, that in a cafe of durefs, (to which Ufury is very h'ke) a man fhall be admitted to give evidence, though it be to fet afide his own bond. " And '' it being given to obtain his liberty, he fhall be " a witnefs alfo, where the nature of the thing *' allows him no other evidence. As if a woman *' give a note or bond to a man, to procure her " the love of J. S. by fome fpell or charm, in " an indictment for the cheat, though it tend to " avoid the note, yet Ihe fhall be a witnefs. *' Note, Here it could not be given in evidence, " that the defendant was a common Ufurer, " becaufe he could not be ready to give an an- " fwer to that matter.*' Whether this laft 7iQte were made by Holt or by Farrefly the reporter, it clearly proves againfl the opinion of Lord Coke, that the common la--u> of Ufury was not then undcrflood to be abollfiied ; for by commori laiv alone could a perfon be indicted as a com-' mon Ufurer. Liberal as the courts have beei^ in giving re- drefs ON USURY. 221 drefs and remedies agalnfl: Ufurers, they are at part i. the fame time particularly precife in fixing and ^ . ^\ i afcertainlns; the manner terms and conditions of certainty '^ ... neceffary in enforcinpj them. Such is the admirable fpirit criminal " ^ . and penal of our criminal and penal code. For certamty laws, is the only fure preventative againft accumula- tive and confirmative guilt. In every information upon the ftatute for an Co,rupt agicement ufurious contraft it is requifite to fay, that muitbeiaid , in the infor- it was corruptly agreed, ptr corrupt cun occom- mation. modntioneni Iffc. ^ otherwife the information will be infufficient : upon this general princi- ple laid down by Coke, " Penal ftatutes are " to be purfued, (efpecially in informations) " (Iridly and in termlnis according to the pur- " view of the ad.** It is material to attend to what Croke JuQice faid upon this point in Ro- berts V. 'Tn'?noi!c - (meant I prefume for Tre- maine) " The third exception was, that it was wiuttobe cc C -i 1 V /< • 1 1 found in an not louncl q'!oa corri'.pte agrcatwn fuit kc, but kitormation *' only quod agr cat am fuit. But ?ion allocatur, for a verdict. " that it appears to the court judicially, that *' the bargain was corrupt, and therefore needs *' not to be found. Croke Juliice drew the » II Rep. ^8. Dr. Foflci's Caft-. I And. 4'7. pi. 123. Doft. plac. 332. 335. Vin. til. Ufiiry, 306, clics Eitimolt and FuImmcI's Cafe, &.c. I Ktb. 6:j. RiX v. G y? ov Ciir//j. ' 2 liol Rep. 48. *' dif- 222 A TREATISE In every in- formation the perfon the place the time and coufidera- tion to be fjpecified. Scott V. htelt. '^ diftindion between an information and a ver- " di£t : for in an information it mud be ex- *' prefsly alledged to be corrupt ; vide 1 1 Rep. *' Dr. Fofter's cafe, and he quoted the Book of " Entries 333 : but it is otherwife in a verdict, *' which is the finding of the lay gCnts." In every information it is moreover neceflary exprefsly to fet forth the per/ons, with whom the ufurious contract was made ; a:7n quoda:n homhie ignoto was infufficient in Martin Van Benbeck^s cafe. And in Nafie'^s cafe ^ where in an informa- tion upon the ftatute of Ufury for a contract with perfons unknown it was holden ill, that being only allowable in cafe of an indictment fro morte hominis ig7ioti : alfo, the place where and the time when the ufurious contract or cor^ rupt bargain was entered into : and further, 'whofe money it is, and the Specific fum received above the legal Intereft. All which appear by the before mencioned cafes of Nafie and P'an Hen- beck, and alfo by that of Sir Woolailon Eixy in the Exchequer*. Thus in a recent cafe of Scott qui tarn v. Bre/l ^ the defendant lent 20C0I. to plaintiff on mortgage with an ufurious claufe » Noy 143. » Leon. 96. pi. 125. M. 29 Ellz. Hawk. P. C c. 82. S. 25. and Vln. Ufury, 306. 3 2 Term. Rep. 238. in ON USURY. 223 in the deed, that he (hould have 40I. as a pre- part r. tended falary for receiving the rents : the deed ^v!l!^^^ was made and executed in London : the lands lay in Middlefex: the account was fettled in London, and the receipt for the balance figned in London though a draft were given for it upon a banker in Middlefex. Adjudged, that the venue was rightly laid in London : for the ttfiiri- eus taking was the eflential ground of the adtion ; and that was in London : as was alfo the ufuri- ous contra<5l, by which he was appointed re- ceiver. " ' In pleading," fays Sergeant Hawkins, " an Howanufu- ** ufurious contract by the way of bar to an ac- trad is to be " tion, you mud fet forth the whole matter fpe- ^ *■* ^ ' " cially, becaufe it lay within your own privity : ** but that in an information on the ftatute for " making fuch a contraft, it is fufficient to fet " forth the corrupt bargain generally, becaufe " matters of this kind are fuppofed to be privily " tranfafted, and fuch information may be " brought by a llranger." It was f\id by Baron Manwood in Sir Woolaflon Dixy's cafe % that *' there was a cafe in this court in the time of " this Qiieen that the defendant had taken " more than lol. in the lool. but in the infor- " mution no corruption in the bargain was al- * PI. C. c. 82. S. 24. Bede V. Samkr/on. Cro. Jac. 440. '^ I Leon. 96. *' ledged 224 A TREATISE ON USURY. PART I. ** ledged and therefore judgment was given ^!^^^ " againfl the informer." I fhall not detain my reader by entering into the particular modes and forms of fpecially pleading in a£tions upon Ufury : the fcope of this work being to afcertain the great leading principles of adtion in all, that concerns Ufury and Jnnuities to which I now proceed. PART PART II. O F A N N U I T I E S, Q. PART IL OF ANNUITIES. C FI A p. I. OF ANNUITIES IN GENERAL. CONTENTS, Political Tendency of Life Annuities^ particularly as to Members of Parliament — How Adva7itage taken of Dijirefs to be confidered — What An- r.uities and Rent Charges — Annuity by Prefcrip- tion — PffeBs of the Remedies for recovering an Annuity — How Grants operate with or without the Word Heirs — How Grants void as Rent Charges may be good as Annuities— How An- nuities may be ajfeBed : they are ajjignable — Of the Eledion and how determinable by the Grantee — How they become cxtind — Of the (^ 2 Re?nedies 228 A TREATISE ON USURY Remedies — Where Writ of Annuity lietb^ ^-nd uhere Debt — Where Lands lie in divers Coun- ties , no Jijjfize but Writ of Annuity licth. .Y objeft is not merely to Invefligate or dif- cufs the abftract nature of Annuities by the laws of England, for fuch a view of the fubject pre- fents nothing, but what is in itfelf fo perfeftly indifferent, that imagination can fcarcely con- nect it with confequences of any moment, much lefs of incalculable mifchief to the State. Yet is it fcarcely pofTible to conceive a domeftic evil, big wiih fuch fatal menace to the very being of the conflitution, as the prefent prevailing traffic of Life Annuities. If Engliflimen fee in an he- reditary houfe of peers, the mediators between themfelves and their Sovereign, the protectors and guardians of each other againfl mutual in- croachments and abufes, if they behold in them a fele(5t body of their countrymen gifted by the conflitution with rights and privileges for t-he purpofe- of enfuring their probity and indepen- dance by their ftation and opulence '. If in looking up to their own reprefentatives in par- liament as to men placed out of the reach of corruption, they fhould neverthelefs find amongft ^ So was it faid in Ne-vll's cafe, 7 Rep. 34. " That every " one of the nobility is prefumed in law to have fufficient " freehold ad fujilnendum nomen i^ cr.us." them liaments. AI^D ANNUITIES. 229 them fome born down and flaggering under the p^Rx n. refifllefs prelTure of ^hefe annual payments, they chap. i. might learn from fatal obfervation bow needy fenators could barter away thofe liberties, which were once thought noc to have been too dearly purchafed by the befl blood of their anceftors. The poverty, which is engendered by thefe Life Annuities is of a call peculiar to itfelf : they ap- pear to rivet the grantors to overftrained expen- ditures, whilfl they bereave them of the abfolute means of fupporting them. They confume the vitals, before the exterior is even vifibly af- fected. To fuch as refle£l ferioufly upon the ef- feds, which this dreadful canker may operate upon the parliamentary condud of thofe, whom it has once fadened upon, the axiom of the great Lord Burleigh, th.4 England can never be undone but by a parliament, may neither appear viQonary nor remote. It would be difficult to fay, whether this cor- rofive worm had already eaten out more eflates in poffeffion or reverfion. The evil pervades every rank of perfons, to whom the conftitution meant to enfure an honourable independance. It is violated therefore in every infiance, in which a man holds the ftalion and duty bereft of the means, which his country affords, as neceflary for fulfilling them. It is impoifiblc to enume- O 3 rate, 2^0 A TREATISE ON USURY PART II. CHAP. I. rate, though we daily and bitterly lament the evils, which the fales of Annuities engender in the fenate, in the army, in the navy, in the church : in every walk of life, in which a difli- pated, inconfiderate or unfortunate man may poflefs or expect a flated income. The ill fated wretch, with this millflone around his neck mufl defpair of reaching the fliore or even of keeping his buoyancy in the waves : unlike to all other debts, in fpite of every effort and ftruggle to bear up againfl them, the daily increafmg gravity of thefe incumbrances forces him down to irretrievable ruin. It is too lamentable to dwell upon the violence of temptation, to which a man of the higheft rank and faireft reputation is expcfed under the unfupportable torture of thefe felf-renovating incumbrances. I wifli not to furcharge this work with any the fufferers difcuffion not immediately relevant to the obieft istheobjedt ^ ... . ofthispubii- I have in view in fubmitting it to the public. cation. This obje£l is no other, than to furnifli, if I pof- fibly can to the diftrefled and oppreffed debtor a faithful chart of the rocks and fhoals, upon which he may have foundered ; a tabula in naiifragio ; a diftant fight of land after the expenditure or lofs of all his flores and provifions. Various and contrariant as are the ideas of Ufury, there is one point, in which all men have agreed, (if I except Redrefs to AND ANNUITIES. 231 AJrdntagcj taken of dif- trefs againft focial n»- ture. except Mr. Bentham) who have treated thefub- part ir. jeft J and that is, wherever by oppreffion or ex- <^hap. l tortion the pofTeiTor of money feizes the advan- tage of his neighbour's di-lrefs, and for the accommodation of any fum impofes upon him fuch unreafonable and harfli terms, as aggra- vate inflcad of alleviating his wants, there the lender breaks through the firfl: principle of hu- man fympathy, which is the cement of focial in- tercourfe. Here the Legidature rightly inter- feres, and from duty puniflies, where it can in- dividuate the fac51, this glaring contempt and breach of a firfl; principle of focial nature. If on one fide there be real diftrefs and want, and on the other any fpecies of extoftion or oppref- fion, the Legiflature always means to favour and protect the former, and to expofe and punifh the latter. If therefore the fpirit of the Ufurer be difcoverable under the mafk of purchafing undervalued Annuities, or in any other difguife, the law^ will not be baffled by the delufive vifor, but will refclutely attack the fubdance, and punifh the infatiate monfter, for gorging on the expiring vitals of his exhaulled neighbour under the pretended fandion of legality. I proceed therefore in my enquiry Into the general nature of Annuities under the avowed impreffion, that the falc of them for the lives of the fellers is a deftru(5live traffic, that overwhelms the nation 0^4 with 232 A TREATISE ON USURY with all the dreadful confequences, that have ever been attributed to the mofl: corrofiveUfury '. Annuity All Annuity in the flricl technical acceptation Charge. of the word, is defined by Lord Coke *, " A " yearly payment of a certain fum of money, " {^ranted to another in fee, for life or years, " charging the perfon of the grantor only.'* A Rent Charge differs from an Annuity by the na- * Of thefe Annuities Mr. Eiflr(? ^' concilio impendendo may be affigned over by the '• exprefs words of the grantor, who granted it " to him and his affigns/* And it was faid* " that an Annuity was more than a chofe en " a6lion, for it may be granted over.*' The right of eledion which the grantee enjoys Eieaionof .of charging the perfon or diflreining on the land is a very important confideration, as the exer- cife or waiver of this right may materially affed ihe interefts both of the grantor and grantee. It is not however to be imagined, that any other aQion, which a grantee may bring againfl the grantor for the arrears of the Annuity, fuch as debt, covenant or the like, will operate the fame the r«medy« * rSro. Annuitie, pi. 8 and 19, ^ Ha. 80. C. B. 3 Car. i. » 7 Rep. 28. * Ow. 3. I'afcli. 26 E'. anon. cffcd into Annul ties. 240 A TREATISE ON USURY PART II. cficO: as a writ of Annuity ; which is a fpecific ^^^- ^- remedy and attended with this fpecific effcft. Nor will the determination of-thc grantee's elec- tion to make it a Rent Charge preclude him from any other remedy than the writ of Annuity. But before we fpecify the inftances, in which he may make his election, and when his right of election is determined, it will be proper to men- tion generally the fpecies of rent, which are not of their nature capable of being converted into What rents Annuities. As for inftance' no Annuity lies ^nUne/ upon a rent created byway of refervation : nor upon a rent granted for owelty of partition, becaufe it is of the nature of the land defcend- ed : nor upon any fuch rent, as may be granted without a deed, though it be in fa6l granted by deed: nor upon any rent due by prefcription againft "" an heir ; becaufe it cannot be known, whether he have any land by defcent from the fame ancedor, who granted the rent^: nor upon a rent granted for allowance of dower or recom- pence of a title, becaufe it is in faiisfaftion of a thing real, and therefore fnall not fall into mat- ter perfonal, but retain the nature of the thing, for which it is given. Neither the prefumption of law, nor the ^.v- ^ Co. Lit. 14^. '^ Bro. Annuitie, pi. 45. 2 Foph. 87. Hi!. 37 Eliz. frefs AlSfD ANNUITIES. 241 ^^efs grant as rent^ fhall take away from the part 11. grantee the benefit of his eledion, where no ^^^^- ^-^ default was in him. Therefore faid Popham Of the de- termination Ch. ].\i 2i Rent Charge be granted in tail, the oftheeUc- grantee may bring a writ of Annuity, and there- by prejudice his ilTue, becaufe then it fhail not be taken to be an intail, but as afee-ftmp e condi^ tiotial ab initio^, And we have before feen that an Annuity is not intailable within theflatute de donis : and the true way to bar the heir is by a common law conveyance, viz. grant, releafe he. If the grantee of a Rent bring an affize for it, he (hall never after have an rinnuity, becaufe by bringing the affize he has eledled it to be a Rent. It is to be obferved * " that this determination " of the election of a grantee muft be by adion " or fuit in a court of record : for albeit the *' grantee diftreyne for the rent, yet he may "* bring a writ of Annuitie and difcharge the land. *' But if the grantee doth bring a writ of x'^nnuitie *' and at the return thereof appeare and count, " this is a determination of his eleiiion in a court " of record, albeit he never proceedeth anie *' further. Bat the purchafmg a writ of Annuitie *' and entrie of it in a court of record, or of an •' aflize is no determination of the election : be- *' caufc a (Iranger may purchafe a writ in the * Poph. 87. Fiil-zuood s\ irarcf. ' Co, Lit. 145. R " name 1 242 A TREATISE ON USURY PART 11. " name of the grantee and enter it of record kcJ* P^^^^l;J\ ' An avowry in a court of record, which is in the nature of an action is a determination of hi$ eledlion before any judgment given. wheiT a Mf a Rent Charge be granted to A and B and nuityfhiii their heirs, and A difirain the beads of the not be had. i i r i • a r i- • grantor and he lue a replevin, A avows tor nim- felf and makes conuzance for B. A dies and B furvives: B fliall not have a writ of Annuity. For in that cafe the eleclion and avowry for the Rent of A bars B of any ele6tion to make it an Annuity, although he alTented not to the avowry. If the grantee of a Rent Charge take a leafe of the land for two years, he fhall never after the two years are ended, have his eledion to make this an Annuity K The purcbafe of the land by the grantee of the Rent Charge or his releafe of all Anniuiies before he has made his eleclion will difcharge the land^ If A grant a Rent Charge to B, which is paid to him, and then B grant it over to C and the tenant of the land attorn : C fiiall not in that cafe have his elec- tion to make this an Annuity, but muft take it as a Rent Charge ^ In all cafes, where the Rent '■ Co. Lit. 145. * Ibid, and 146. Yin. 2 V. 511. ' Dyer. 140. Poph. ubi fupra in Ful=a:ood v. IFurd, * Goldf. b. 83. p. I. * Co. Lit. 13c. Charge AND ANNUITIES. 243 Charge is apportioned by aft in law, yet the *' writ of Annuity faileth, for if the grantee ** fhould bring a writ of Annuity, he mull ** ground it upon the grant by deed and then *' muft he, as hath been faid ' bring it for the " whole." Befides the modes of determinincr an Annui- How An- ty, which I have already noticed, there are fe- <^°'"'« "- "veral others, which it. will not be improper here to remark. Wherever an Annuity is granted for the performance of any duty or fervice, and the grantee refufes or neglects to perform it, the Annuity becomes extind ' : as in the inflances of lawyers and phyficians, pro concilio i?npen' dcndo : with this difference, that the phyfician mufl: go to his patient, though the client muil attend or write to the lawyer. Yet in AUngie'i eafe ^ a writ of Annuity was brought by him pro cmicilio impenfo et impendendo. Defendant M;ngie'» pleaded in bar, that he carried a bill to the plalniiifto be figned, and becaufe he refufed, he detained the Annuity. And per curiam this is no plea, for he is bounden to give advice, but not to fet his hand to every bill, for this may be ' Co. Lit. 144. " for that would n')t be accotding- to the **■ deed of grant, for citlicr the whole muft be a Rent Charge j *• or the whole an Annuitv." * Br. Amiuitic, pi. 7. 18. ■J l*opIi. 135. R 2 incon- Cife. 244 A TREATISE- ON USURY PART II. inconvenient to him. ' So if I grant an An- 5"^^' ^\ nuity to J. S. for keeping my park and the game is not preferved through his fault, this is an ex- tinguifhment of the Annuity. ^ Upon the fame principle, if an Annuity be granted pro dccimisj and the grantee be unjuftly difturbed of the tithes, the Annuity ceafes : for thefe being the cxprefs confiderations of the Annuities, they are thereby rendered conditional. ^ So again if an Annuity be granted pro homagio et fervitioy and the grantor difclaim in the fervices in a writ of Annuity the Annuity is extinft. * And if an Annuity be granted fo long as the grantee is benevolens frofercns et amicabilis to the gran- tor, and the grantee labour to put the grantor out of fervice, it is a forfeiture of the Annuity. Of the re- The remedies, which the grantee enjoys for fecuring the payment and recovering the arrears of the Annuity are various according to the nature of the grant and the circumftances, by v/hich the rights of the grantee may have been affeded fubfequent to the grant : and it is very material, that they fhould be known : for there are few forts of Annuities, to which fome of them do not apply. And as in the prefent fyf. * Br, Annuitie, pi. 49. "^ Co.LIt. 204. 3 Br. Extinguilhment, pi. 37. * Br. Annuitie, pi, 35, and double plee. 100, 7 fem medie: AND ANNUITIES. 245 tern of money lending fo much is at this hour part ii. fecured under or advanced upon Annuities, no- chap, l thing which can afFeft the rights either of the grantor or grantee ought to be paffed over un- noticed. And it was truly obferved by the coun- fel in the cafe of the Earl of Stafford v. Biick- iey\ that " the nature of the thing may pro- *' perly be illuftrated from the remedy the law " gives for it, the conflant method of Fitzher- « bert and Coke." When an Annuity is faid to htperfonal not How An - nuitv is pw« real, it is not to be underftood to be that fpecies fonau of perfonalty, which veils without any fpecific bequefl in the executors. So faid Lord Hard- wicke in Lord Stafford y, Buckley, '-All the " reft of the perfonal eftate, that could pafs " to executors would go to them : but this is " a kind of perfonalty, which according to Doc- ** tor and Student ^ would not be aifets in execu- " tors, and confequently will not go to them by " being named executors." ^ " Annuity in fee " is a perfonal inheritance^ what the law fuffers " to defcend to the heir, but has nothing to do " with the realty, as appears from Co. Lit. 20 ; *' and fo not within the Statute of Frauds : for ' 2 Vez. 175. - Dr. and Stud. p. 90. 3 2 Vez. 178. R 3 '• lands 246 A TREATISE ON USURY PART II. " lands and tenements are only within it.'* CHAP. I. Therefore ' of an Annuity there lieth no aftion, Whc-!.- the but only a writ of /annuity againfl the erantor, writ 01 An- . , ■' [ ° . nuityheth. his hcirs or fucceflbrs, provided they be included in the obligation or g ant. And it is an inva- riable rule, that the writ of Annuity only lies, whilft the Annuity continues payable : fo that if the Annuity be extinguiflied by act of the party, or by operation of law, before the ^^rit is purchafed, or pending the writ% there tlie writ of Annuity is gone. whete debt j^ all thcfc cafes if the grantee or his aflignee or his reprefentatives wifh to recover the arrears of an Annuity, which is determined, it mud be by a£lion of debt. Brooke fays% " that as long " as the Annuity continues, a writ of " Annuity lies and not a wTit of debt, al- ** though the Annuity fhould be only for years." And yet, he obferves '* " the executors fhall have " a writ of debt of the arrearages of an Annuity *' incurred in the time of the teftator: and fo " an a<5lion of debt lies for an Annuity, whilfl ' Dr. and Siiid. 90. a Br. Anniiitic, pi. 3s, cites 9 H. 7. 16. Br. Dctte, pi. 145. Vin. Annuity 516. ^ Br. Annultie, pi. 2g. * Ibid. 46. He refers for more concerning Annuities to Fitzhcrbert and Stat, and ii Nat. Brev. and the Reg. ^nd Book of Entries, *' it ties AND ANNUITIES. 247 ■** rt continues, and It fhall be in the detinct, part it. '* where the writ of Annuity is in the debet.'" ^^^_i * In Annuity the flierifF returned nihil, and Annuity ot was compelled to amend his return ; for no fuch vers coun. procefs as capias did then lie in Annuity. But fince that time, by the 23 Henry VIII. c. 14, the like procefs may be had in every writ of Annuity and Covenant, as in an action of debt ". If a rent be granted out of land in two coun- ties, affize does not lie, but writ of Annuity: the reafon, I prefunie, being, becaufe the lands of both counties cannot be put in view of the re- cognitors of the aflize : whereas Brooke parti- cularly fays, that if a man grant rent out of land in one county, and give a power to dlltrein for it upon land in another county, and he bring nffize, the affize (liall be in the liril county : but if both lands lie in the fame county, they fhall be both put in view. ^ Lord Coke puts this cafe '^ That if A be " feifed of lands in fee, and he and B grant a *' Rent Charge to one in fee, this prima facie *•' is the grant of A and the confirmation of B, " but yet the grantee may have a writ of An- '^ nuity againfl both. Two men grant an An- ' Br. Anuuilie, pi. 5. - Br. Rentes, pi. 22. ^ Co. Lit. 144. R 4 " nulty 248 A TREATISE ON USURY PARTii. " nuity of 2c.l. per annum to another, although CHAP^ " the perfons be feveral, yet he fhall have but " one Annuity. But if the grant be, obligamus " nos et larumque nojlriim^ the grantee may have " a writ of Annuity againft either of them, but ** he fhall have but one fatisfaclion." It would exceed the fcope of this work to en- ter into the minute detail of the manner, in which the grantees of Annuities may or ought under different circuraflances to apply the reme- dies, which the law has put into their hands. For the pleadings therefore and proceedings in Annuity both before and after judgment, I re- fer my reader to a very complete colleftion of the cafes by that induftrious compiler Mr. Viner \ ' 2 Vol. from 517 to i^^. Vid. alfo Do3. Plaeitandi^ f . xvi. CHAP. AND ANNUITIES. 1249 CHAP. II. OF ANNUITIES FOR THE LIVES OF THE GRANTORS. CONTENTS. Intent of the Chapter — Propriety of impofing legal Rejtraints in Money Loam — Fatal Confequen- ces of raifing Money by Life Annuities — Of re- fcinding the Contrads for Annuities — OfCircwn- vention and Phyjical and Moral Nece/fity — Ef feds of raifing Money by Annuity formerly and now — Whether Annuities can be Ufurioiis : Lord Hardwicke's Opinions upon thefe TranfaElions — Cafis in which Annuities were not Ufurioiis — Of the Claufes of Rede?nption or Re-purchafe having been once thought Ufurioiis: now holden not to be fo — Whether Infiirances render the I'ranfa^lions Ufurious — Of the Adequacy of the Conftderation of Annuities — Bare Inadequacy of Price notfujfficient to refcind an Annuity in Law or Equity — Of illicit Confiderations — Of Annui- ties charged upon Officers' Pay and Half pay ^ and Clergymens Livings — The Difference of Whole and Haf Pay now explod.^d— Neither of thcni 25® A TREATISE- ON USURY 'ihem qfigriable— Clergymen's Livings not aJJigTl' able or chargeable by Common Statute or Canon LaJD — Of avoiding Annuities charged on Livings andfecurcd by Bend and judgment. PART 11. T CHAP. n. JLN the foregoing Chapter we have treated of latotof^ Annuities in general, and molt of the leading siwv^ciwp- features of it are as appropriate to Annuities for the lives of the grantors, as to thofe of any other defcription. Now although the prefent Chapter be dedicated to Annuities only for the lives of 'the grantors, as they conftitute the bulk of the evil, which I humbly conceive arifes out of this deflruclive mode of raifmg money, yet few of xht principles or points contained in it will be found inapplicable to Annuities in fee for years or for the lives of others than the grantors. It might be here expeded, that I fhould notice the ads of the Legiflature upon the fubjefl : but fince the Annuity Aft, which was palled in the 17th year of his prefent Majelly, has created al- moft a new fyltem of Life Annuities, I fhall re- ferve the confideration of that ftatute and of the law confequent to it for the enfuing Chapters. \yi the prefent therefore my lludy will be to dif- clofe both the law and the equity of Life Annui- ties before the palling of that acl. I find this the more neceiTarv, as moft of the cafes decided upon Annuities fince that period, have been founded AND ANNUITIES. 251 founded upon the ftatute. Yet In confidering parficular ca;es, it is of no flight importance to attend to what the law was previoufly to the pafT- ing of the a£t. I fhall at prefent therefore no further notice the act, than to authorize me to aflert from the preamble, that the praftice of raifin^ money by the fale of Life Annuities, which hath of late years greatly increafed, is pernicious. Without repeating any thing I have before Propriety of faid upon the principles of our laws aj^ainfl: ftraimsin ' '^ money L furv, I apoeal to the experience of the prefent ioms. day in defiance of the moii ingenious theory and fpecious arguments, whether thefe legal re- straints do not in n umber lefs inllances prevent money- en Jers from raifmg their terms upon borrowers in proportion to the fcarcity of cafh in circulation and the variety of mean?, which Go- vernment hold^ out of making more than legal Intereft by ordinary loans '. If once a compe- tition were permitted in the market, and the price might be arbitrarily raifed upon borrow* ers, the evils are incalculable, that would refult from the adventurous fpirit of our commerce, whenever an unf.ivourable turn of foriune, an unforefcen check, or perhaps danger of bank- * At the moment 1 am writinjr, liltlc fiiort of 20I. per pent. m;iy be Icj^al'.y made by the purchafe of Exchequer and ^ayy Bills, ruptcy 252 - A TREATISE ON USURY PART ir. ruptcy were Impending. I readily admitj that ^^^^j ^^; in fome inliances, a fum of money borrowed at Pernicious ^hc mofl cxtravacjant Intereil, might in a feafon- confequcn- ° .... tesof railing ablc momcnt avert that ruin, which ninety-nine money by Aaiiwty. times in a hundred the exorbitancy of the loan would accelerate and enfure. The very excep- tions from the general eflecls of fuch loans, eflablifli their dellrudive tendency and confe- quently juilify the laws framed for proteding fociety againft the evil. It is not therefore from the few and rare inftances of money raifed by Annuity being converted to the laudable pur- pofe of averting a greater evil, that we are to judge of the utility of this mode of raifmg money : but we are to fix our view upon the numbers, who by thefe means procure a tempo- rary fupply to their follies or vices, and by their ■accelerating powers of deftruftion precipitate themfelves inconfiderately into inevitable ruin '. Were * Mr. Erfkine has minutely defcribed the rapid progrefs of an unfortunate man ruined by the fale of an Annuity for his own life. (RePieclion?, 32. 33.) " A man poflefTed of an *' Annuity of three thoufand pounds per annum for his life ** charged on a real cftate or on government fccurity, as by " an office fur life of that extent, fells an Annuity of a *' thoufand pounds per annum for fix thoufand pounds or fix " years purchafe : the money being probably fpent before the " loan takes place, peace be to it's manes! the feller has now ** only an income of two thoufand per annum, the other " thoufand AND ANNUITIES. 2^3 Were we to follow the definition which Mr. part 11. Erfkine adopts * of Ufury, viz. an exorbitant ^^^^ profit exacted for a loan made to perfons m diflrefs : ^^^f^^^^^ it is but too obvious, that few Annuities for the commoa* " thoufand being pledged for the fum borrowed ; and as he •' could not live before upon three we may fuppofe two as *• not fufficlent to defray his expences, which will oblige " him to encroach on the other thoufand, which only re- " mains in his hands, waiting the broker's call. In fix *' months five hundred pounds become due to the lenQcr, *' who upon apology made bows and fays it is mighty well, " but at the end of other fix montlis five hundred pounds " more being due and the broker having great ncccflity for *♦ the fum, is extremely forry to be troubiefome, and is very *' willing to be paid it on the mod agreeable terms to the " gentleman, who has no other way left than by felling ano- " ther Annuity of two hundred pounds per annum at five *' years purchafe to liquidate this accuyiulated Intereft. Njv» ** if the gentleman's expences continue the fame, and they •* are rarely found on thefe occafions to diminifli, his dilficul- *' ties will naturally increafe, when his funds are reduced tj ** eighteen hundred pounds ; the Intereft will grow up agriin *' and muft be failsfied in this accumulating ratio of rutn. " Thus the fall of a fpendthrift is like that of all other falling ** bodies : the velocity is increafed as the diftances decreafe '* from the attrading centre; this hiflory of an individual *' has a llrong analogy to a nation which anticipates the re- " venues of pollerity and dcferves to be well confidered by " the truftees of the public." » Reflec. 21. This he fays has more truth, tliough lefj legal precifion In it, than Lord Coke's definition, viz. the gain of any thing above the principal exacted in conft deration of the loan, lives tion oJ ni3- i$4 A TREATISE ON USURY PARTir. lives of the fellers would be clear of Ufiify ? f""^!'" ": for it rarely, if ever, happens, that in the traf^ fic of thefe y\nnuities, -which is no other than the accommodation of money by money lend- ers there is not avarice on one hand and necef- fity on the other. This mud produce oppref- fion : and the fame eloquent advocate for huma- nity and benevolence affumes, ' that every op- preffion of a fellow creature is 7nahim in fe : and oppreflion, as I have before remarked, (p. 71.) is punifhable by the common law of the Fawfar land. The high fenfe of honor and integrity, AnVuuies'*'^ which animates Mr. Erfkinc's breaft, feems fdflded. ' to have drawn from him a fentiment upon this fubjeft more congenial with his feelings, than confiftent with the legiflative reftraints and injunctlons, which he either fupports or recom- mends. "^ " I hold every gentleman to be fo in- •' delibly bound by every contracl voluntarily *' entered into wiikout circumvention and at the " years of difcretion, that no exception can. " be taken to it by himfelf as an individual,- " without doing an injury to his chara^er ; that" *' nothing but one univerfal injunfiicn of the' » Rtfl. 35. 2 Refl. 35. To the publicarion of thefe RcflecElions by Mr. Evftine in i776Icanr.ot help attributing the eainell- iKfs with which the Parliament took- up the fubjed in the enfuing year, as we (hall fee more fully in the next Chapter^ ^' Leglf- t rafts ior Annuities not eiuci-el inlo by cir- cumveatka. AND ANNUITIES. 25^ ■** Leglflature founded upon reciprocal juflice can part n. *' remove or even moderate the oppreffion : and ^^•'^^' "; " that even then, if a folid objedion could be " offered to it's equity, no man of honour could *' receive it's proteftion." With the greateft deference to fo great an Thecw authority I humbly fugged, that mod if not ail contrails of Oppreffion and Ufury are 'volun- tari'y entered into by the aggrieved party, in as much as he propofes folicits and perhaps urges and infifts upon the execution of the contracl : there can be no circumvention on the part of the lender, if the eyes of the borrower be com- pletely open to the terms of the bargain. The bare taking advantage of the diftrefs and necefllties of another is an offence of a different quality from thr.t of circumvention or fraud. Lord Mansfield therefore faid, that the Statutes of Ufury were made to protect men \vlih their eyes open againft themfelves. It is becaufe moral is no Icfs compulfive than Mora] and phyfical neceihty, that equity proteds the agent neccffity. finder the former, as the law does under the latter. It would in fa£t be difficult to determine, whether greater freedom were exercifcd in the refufai of a purfe to a highwayman, or in the rejcdfion of the exorbitant demands of an Ufurer in a cafe of urgent didrefs. 1 do 256 A TREATISE OM USURY t do not in legal precifion hold myfelf juftified to fpeak of thefe Life Annuities in the words of Effefts of an anonymous author ', who has favoured the raifing mo- n«ybyway pubUc, with fonie vcry poignant Reflexions on Ufitry as condud,ed by the mode of undervalued An- nuities. But certain it is, that this is the bane- ful fource, from which modern follies extrava- \ gancies and misfortunes derive a momentary fuf^ penfion from a gradual decline, to aggravate their untimely diflblution with unfpeakable hor- ror and tortures. The effefts of this 7noJl de~ Jirudlive fpecies ofUfury^ as this anonymous au- thor obferves, under the difguife of undervalued Annuities^ are precifely fimilar to thofe, which Dr. Wilfon attributed to another fpecies of Ufury above two 'centuries ago. Thofe, who are in the habits of preferring the liberality and improvements of this enlightened age to thofe^ •which produced our earlier anceflors, will make the proper allowances for the differences, as welt as thofe whofe veneration for antiquity reprefents every thing modern as degenerate and depraved. The facility of raifing money upon exorbitant terms in thofe days was fuch as ^ '' maketh wan- " ton princes to make warre, noblemen riotous " to fpend v^itbout reafon, young gentlemen un- " thriftie to bring all to naught, after they are * London 1796. Printed for Murray and Hightley. " newlie AND ANNUITIES. 0.^1 *' newlie come to their lands, and fo to take the *« verie high waie to undoe themfelves for euer j ** as everie daie it doth appeare not onlie in gen- " tlemen, but in fome great ftates and lordes of *« this lande." He farther adds, that " lending *' to mainteine the outrageous excefs and foolilh *' riot of manie is a devife ufed more here in *' Englande than in anie place, that I know in ** Chriftendome. For if monie might not fo '^^ foone be had of thofe covetous Ufurers, mod *' men would live within their bounds and leave *' their wanton apparell, their unneceiTarie feaft- " ing, their fond gaming and their lewd hazard- " ing of great wealth and revenues without all *' wit upon a maine chaunce at dice, or upon a *' card or two at Primero or other vaine devililh " games. For fo thefe unthrifts may have money " to ferve their lufts and to hazard their chaunce " they care not what to paie.** Thefe r^etches of a very old fchool are the exacl outlines of many modern portraits : and as the characleriflic features in both are fo plainly cognizable, there can be little doubt of the common lineage, from which they fpring. Through all the variations of couflume and drapery we trace in the complexion eyes and features the never varying fymptoms of that baneful tahes^ which the flightefl touch of Ufury infalHbly diffufes through the fyftem. In order to proceed more orderly in our dif- S cuffioa Divifion of the Chapter. Are Annu- ities ufuri- Lord Hard- wicke's opi- nions upon shefe tranf- A TREATISE ON USURY cuflion of tlie nature of thefe Annuities for die lives of the fellers, I fnall firft confider them un- der all refpefts as not affeded by the Annuity- Ad ; which will bring under examination lo. their validity with reference to their contract, Q.O. with reference to their confideration and 3°. the powers exercifed by the different courts of law and equity in fetting them afide. The firft queftion then to be refolved, is : Arefuch Annuities ujurious f To which the direct anfwer is negative : but although they be not ufurious of their own nature, yet many concomi- tant circumflances may render them fa. We mud therefore flart upon the ground laid down by Judge Blackflone in Murray v. Hardinge, that every cafe of Ufury mujl depetid upon its oivn circumjlance : he at the fame time added, that " he did not know an inftance, where the Prin- *' cipal was hand fide hazarded, that the contrad ** had been held to be ufurious. If the price be *' inadequate to the hazard, it may be an inipo- *■' fition, and under fome circumftances relievable " in equity : but it cannot be hgal Ufury y I here prefume, the learned Judge confined him- felf to Statute Ufury. I cannot more forcibly introduce this dif- cuflion, than in the words of the great Eord Hardwicke, in Laivley v. Hooper \ " There ^ 3 Atk.278. •'has AND' ANNUITIES. 259 *< has been a long ftruggle between the equity part ii. *' of this court and perfons, who have made ^"^^- ^^ " it their endeavour to find out fchemes to ** get exorbitant Intereft: to evade the ftatutes *' of Ufury ; the court very wifely has never laid " down any general rule, beyond which it would " not go, left other means of avoiding the equity *' of the court (hould be found out : therefore *' they always determine upon the particular *' circumftances of each cafe." On this occafioa his Lordfhip added, " I really believe in my con- ** fclence, that ninety-nine in a hundred of thef« *' bargains are nothing but loans turned into this *' fhape to avoid the ftatutes af Ufury." In the great cafe of Chefterfie'.d v. Janfen * Lord Hard- wicke faid of poji obit bargains, what is equally applicable to Annuities: " As they are produc- *' tive of prodigality on the one hand, fo do they " beget extortion on the other: want and avarice *' always generating one another j an J thefe con- " tracts may be truly faid to be vitia teinporis-. " This court can certainly relieve againft all kinds *' and fpecies of fraud. Fraud may either be " dolus malus, a clear and exprefs fraud or fraud " may arife from circumftances, arid the necclTity " of the perfon at the lime. Tlicre are alio hard ** unconfcionable bargains, which have been ** conftrued fraudulent, and there are inftances, >2Atk. 351. S 2 ** where 26o A TREATISE ON USURY Cafes by which An- ruities have been efta- bliflied. Fountain v. Grimes. *' where even the common law hath relie/ed for *' this reafon exprefsly '.'* Before I enter into the different circumflances, which may infe£t the cafe, and convert a con- trad for an Annuity into Ufury, it will be pre- vioully proper to refer to fome of the cafes, by which the validity of thefe Life Annuities cleared of any fuch circumftances hath been eftablifhed. The cafe of Founiaiti v. Grimes "^ which is re- ported more fully by Bulftrode than by Croke, arofe upon the defendant's pleading the ftatute of Ufury in an adion of debt upon a bond for fecuring an Annuity for the lives of the plaintiff his wife and fon. The plaintiff, it feems, had applied to the defendant to lend him iccl. at ten per cent, which was then legal Intereft ; this was refufed, and the bond was entered into for payment of an Annuity of 2cl. for the three lives in confideration of icol. paid by Fountain to Grimes. And it was aldjudged, that this being an abfolute bargain for an Annuity was out of the flatute of Ufury. ''• But," fays Bulflrode, " otherwife would it have been, if there had " been any provifion made for the repayment of " the faid fum of locl. unto him within any cer- *' tain time, and in the mean time the yearly " payment of the 20I. /nnuity to continue, this ' Vid. antea. p. 71. ^Cr.Jac. 252. Bulf. x6; « had AND ANNUITIES. 261 *< had been a clear uiurlous agreement, and part lu « lending within the flatute." chapjl In Tanfield v. Finch ' the defendzint gave to the Tanfidd v. plaintiff 5 661. for an /innuity of 1 2cl. for twenty- three years. " This is clearly no Ufury, when *' there was no communication before between *' them for the loan: the Annuity was purchafed " bondjide, and had it been 40I. per annum for *' forty years for icol, it had been no Ufury : *' no more than if for i col. one purchafe lands ''worth 40I. per annum." Although in this Dr. Goad's cafe real fecurity were added for better affuring the Annuity, yet this altered not the cafe. In Dr. Goad s cafe ^ Popham and Plowden held, that if a man give locl. for an Annuity of 2cl. this is not Ufury, for he fhali never have his ftock of lool. again. But Bell Ch. Bar. held clearly, that if there had been any communication be- tween the parties about a loan, and that for an evafion out of the (latute they had invented this or any fuch practice, this would be Ufury, al- though he never jlwuld have his 1 00/. again. In Chejierjieldv. Janfen ^ Judge Burnet fpeaks Annuity mofl: decidedly upon this matter. " Suppofmg uiurious. '* there is a purcliafe of an Annuity at ever fuch " an under pr: jc, if the bargaia really was for an ^Cr.El. 27. *Tnn. 19 El. in Sacj, ^ 2 Vez. 142. S3 ** Annuity, 262 A TREATISE ON USURY PART II. *' Annuity, /"/ cannot be Ujury : but if the com- CHAP. II. cc munication was about borrowing and lending, '-' it may be Ufury within the iiaiute: and how? " If by reafon ol all the circumftances and of the " communication, the exility of the ium given, ** the original contract being a borrowing and ^* lending, the court thinks the Annuity was a ** mere device to pay the Principal wiihufurious ** Interefi: to evade the ftatute, this will be within " the itatute ; though on the fare of ihe bargain " it appea s ever fo fair a fale of an Annuity : ?* the contrivance of the Annuity as the ufurious *' reward for the loan jof money, fhall not evade '* the ftatute made for the benefit of mankind. ** This I take to be the fum and fubftance to be *' coUeded out of the feveral cafes. ^ Cr. Fl. 27. f* ' 4 Leon. 208. ^ Noy 151. * Brownl. 180. f and -5 2 Leo. 7. In the cafe of ^ Sir William Stanhope v. Cope * Tanfield v. Finch. ? Fuller's cafe, 300I. given for .Annuity of 53!, for four lives not Ufury, if no communication had about borrowing and Jending. ' Symonds v, Cockrill, 300!. given for Annuity of 20I. for eight years and two years more if three men fo long h"ve : no Ufury, if no communication about a loan. * Cotterel v. Harrington, mutatis nomimlus this is exaftly the fanne cafe as the laft, only that it is here alledged to have ■peen upon a lending. 5 King V. Drury. i a Atk. 332^ AND ANNUITIES. 263 and Roberts executors of Sp'mkes Lord Hardvvicke part 11. decreed a jundim Annuity granted by Sir Wil- ?"^^- ^V liam Stanhope for the life of himfelf and the srannopcx-. * Cope. grantee to be redeemed, according to a provifo contained in the deed to that effeS. "i he terms pfthis Annuity were unfavourable to Sir William Stanhope : but ytt the Chancellor would not decree the redemption ab initio merely on that account ; but only from the time, at which Sir William Stanhope had offered to redeem. At the recommendation of the Chancellor the mat- ter was compromifed, and after the Regiftcr had drawn up minutes of the agreement his Lordfhip " declared he had a very great averfion to con- ** tra£ls of this kind, and that he was very in- •* clinable to decree a redemption ab initio.^ if it *' could have been confident with the rules of " equity." There cannot furely be a ftronger proof, that bare or flight inadequacy of confidc- ration will not render fuch an Annuity voidable in equity, any more than in law : but then the contract for fuch Annuity mufl be completely clear of impofition oppreflion extortion and fraud of every nature whatloever. The rreat cafe, which fettled the legality of f^"'"y "-'• thefe Annuities for the lives of the fellers, was that of Murray and Hardingey in which it was determined, after feveral mofl elaborate argu- ments, that an Annuity at fix years' purchafe for S 4 the ?64 A TREATISE ON USURY PART ir. the life of the grantor, then of the a;;e of thirty- ,P"_ ^' "/ two years, with a claufe for redemption at the option of the grantor after the expiration of five years for five years and a half's purchafe was not ufurious. This determination was pointedly decifive, as it was recited in the Annuity deed, that the agreement had been made for a loan of the money, which was paid as the price or con- fideration for the Annuity. And it having been made to appear to the court, that this recital was made by the attorney without any privity or di- reftion of his client, who really and fubftantially meant to purchafe an Annuity, the court deter- mined " That the inaccuracy of the recitals in " this inftrument fhall not vitiate a contra£t, that *' otherwife feems to be a fair one.'* Modes of De Grey Ch. J. in giving judgment upon evading the , r i r it • rr • i principles this cale obierved that " it was eilential to again u- ^^ ^^^ naturc of an ufurious contrad, that there " muft be lo. a loan : 2°. that i/kgal Interejl is " to be paid for fuch loan. And it is eflential to '* the nature of a loan, that the thing borrowed " is at all events to be reftcred. If that be bond- ^* Jide put in hazard, it is no loan but a contract " of another kind. So alfo if illegal Intereft is *' to be certainly paid, or even upon a reafonable " poffibility, the contract is ufurious." To evade which principles many expedients have |)een tried. As /J ic. To AND ANNUITIES. 265 I p. To make the Inter eft precarious and un- part ii. certain '. chap^ 2°. To make the Principal itfelf precarious ^. 3°. Communication concerning a loan has fometimes infefted the cafe and turned a con- traft into Ufury ^ 4°. Inequality of price is alfo a fufpicious cir- cumftance, efpecially if very inadequate'^. 5°. If a power of redemption be given, though only on one fide it is a ftrong circumftance to fhew it a loan, though not conclufive ^ 6°. The form of the inftrument, (if fo meant) importing a loan may render the contract ufa- rious ^. * If clearly a loan, the pollibllity of the Intereft becoming precarious will not fignify. Roberts v. Tremayne^ Cr. J. 507. * Here the qucilion will always be, Is it a fair bond fide ha- zard ? If otherwife it will be ufurious ; and no inequality of price will condemn a fair hazard. Dodderidge's Rule (as antea) was hereto applied. ^ This communication mud be with the paity himfelf, not with his at'corney. There is no cafe, where a meditated loan has been converted into a bond jide purchafe and was alter- wards holdcii ufurious. 4 Inequality of price under certain circumftances may make a contrail unfair and unconfcientious and relievable in equity, though it will not render it ufurious. ^ Hooper v. Lawley. 6 Bit not if it be by the blunder of an agent as in Bucllcy r. Culhihank, Cr. Jac. 677. where Intcrefl: was made payable by fuchraillake two days after the loan. 70. Sub- V 266 A TREATISE ON USURY PART II. 7°. Subfequcnt a6ls of the parties may alfo be -^"^„ ^ ■" material evidence of intention. Of the In mod contracts for Annuities for the lives reuempiion of the fcllcrs fomc agreement is entered into, for Ihlk.^"' giving the feller a right or power of redeeming or repurchafing the Annuity he fells either inde- finitely at his option, or after the expiration of a given time ; fometimes at the exad rate of the original purchafe, at other times at an increafed price, and not unfrequently at a reduftion pro- portionate to the deterioration of the life, during which the Annuity is granted. For a confider- able length of time it was a generally prevailing opinion, that if an Annuity were granted with fuch a claufe of redemption or repurchafe, it was fuch a fecurity for the repayment of the prin- cipal, that infefted the whole tranfaclion with Ufury : it being fuppofed in fuch cafe, that the Principal is not really and bend jlde put in ha- zard. Whenever therefore fuch an agreement made part of the contrast, whilfl; this opinion prevailed, it was always expreffed by a feparate inflrument or writing, or left to the difcrelionaiy honor of the parties. Since however thefe claufes for redemption or repurchafe by the vendor are now generally introduced into An- nuity deeds, it will be fatisfactory to trace the origin, progrefs and extinclion of the opinion ot their ufurious quality and tifeds. In i\ND ANNUITIES. 267 In the before mentioned cafe of Fountain v. part ii. (primes \ -which turned upon the validity of an ^^^P- J^- Annuity granted for three lives, and was deter- Form-riy Kim.'d not to have been ufurious, becaufe it was brufsnou:? a real oT}dfide fale of an '\nnuity and no loan, l^orh Cooke and Bulflrode in their report of the jcaic have noticed the faying of the court ; " but *' if there had been any provifion made fpr the *' reD'.iyment of the Principal, ahhough not ex- " prcffed in the bond, it had been an ufurious ** agreement and lending within the faid fla- *• tutes/' Such provifion for the repayment of the Piincipal was for a length of time fuppofed to be made by a claufe for redemption or re- purchafe. To favour and fupport this idea Sergeant f"S""* ^ ^ o Hawkins'c Hawkins, whofe authority has been always look- opinion ■' •' hereupoxL. ed up to with great deference is fuppofed to have fpoken mofl: decifively : *" The grant of An- *• nuities for lives, not only exceeding the rate " allowed for Interefl: but alfo exceeding the ^* Jcnown proportion for contrads of this kind *' in confideration of a certain fum of money, is *' not within the meaning of the ftatute, unlefs ** there were fome underhand bargain for the f* fccurity of the repayment of the principal or •> confideration money." I cannot fee that this ' Cro. Jac, 25a, and I Bilft. 36. ? pi. Cor. 2 Vol L. I.e. 8^. Sea. 21. 7th Ed. by Leach. pafl'age 265 A TREATISE ON USURY Lawley v Hooper. PART II. paiTagc in Hawkins any more than the didum in CHrt P. II. 'pQuniain v. Grimes is neceffarily to be referred to a claufe for the optional redemption or repur- chafe of the Annuity : but rather to a pofitivc fecret agreement for the repayment of the Prin- cipal at all events, which w'ould direclly convert it into a loan. Lord Hardwicke in Laivley v. Hooper in de- termining that the Annuity granted by Lawley for his life with a provifo for repurchafmg or re- deeming it upon giving fix months notice to the grantee was a loan, feemed to lay much ftrefs upon the effefl of this provifo : ^ " The provifo '* in the deed ufes the word repurchafe ; but ** there Is very little diiTerence in reality between " the meaning cf the word rede?nptio7i and re- " purchafe. One of the witneffes (Sparrow the " defendant's foUicitor) ufes the word redemption: ^' and I take the word purchafe ufed in all the " other depofitions to be only a cant word mean- *•' ing a fale or mortgage : and the indorfement *' on the back of the deed ufes the words re- *' purchafe and redemption promifcuoully, which " plainly fhews, that It was confidered by all *^ parties as a power to redeem. " There are two circumllances more, which •' fhew that this was intended and underftood '^ as a fecurity. When the parties met to have ' 3 Atk. 200. " the AND ANNUITIES. (269 " the deeds executed, it was objecled by the ** lender to the terms of the condition to pur- " chafe back, that it was made to be at any Annuity • iT/-»i» r 1 n ' ' with claufis *^ time, and he faid it was ufual to reltrain it to ofredemp- , f . -TT^' J t-* tion declared " a certain period or time. \V nat doss this a um. ** import ? It is plainly the language of a Idider " of a fum of money. Another circumftance ♦' is, that he infilled upon the payment of 75I. ** more, and would have fix months notice. " The confequence of this was, that he would " have this time to find out another hand to " take his money, anJ would have Intereft for " his money during thefe fix months notice, *' but upon payment cf 75I. more he might re- *' deem, which Vv'as the fame as faying, You " (liall give me fix months notice, or pay me *' fix months of the Annuity. Therefore upon *' all the circumftances, 1 think this was and is " to be taken as a loan of money ^ turned into this ** (hape only to avoid the flatute of Ufurv." After Lord Hardwicke had expreded his Ti.e infer- mlnd fo flrongly upon the operation of fuch a pr°ovi°oer provifo, for redemption or repurchafe at the option of the grantor, it is no wonder, that the tide of opinion fliould have flowed ftrongly to- wards the ufurious tendency or confequence of infcrting fuch a provifo in an Annuity deed, or of avowing fuch an agreement as part of a con- trad, that was not intended to be refcinded or avoided. deemed ufuriouSi 270 Thefe pro- vifoes not ai'urious. A TREATISE ON USURY avoided. For it Is evident, that if fuch a priV vifo tend to convert the grant of an Annuity into a Loan, as Lord Hardwicke laboured to prove, it muft necefiarily become ufurious, if the Annuity exceed the rate of five per cent upon the purchafe money. In procefs of time, thefe provifoes were feen in their true light: and it became generall-y admitted, that a right in the grantor to determine th^ Annuity for his own benefit or fatisfadion, did not create that neceflity or obligation of repaying the Principal lent or advanced at all events, without which the courts had repeatedly declared Ufury againft the ftatutes could not be committed. A prc^- vifo of this nature was recognized and efta- bliftied by the Court of Common Pleas in the' €afe of Murray v. Hardinge, as bei^ng entirely for the benefit of th€ feller. In Broii?i v. Ricb- ards Lord Mansfield fpoke of the provifo for redemption at the option of the feller in that manner, that clearly imported it not to infedl the tranfaclion with Ufury. Nay even Lord Hardwicke himfelf four years before the deter- mination of Laidey v, Hocpcr, did not feem to give any fuch ufurious operation to this fort of provifo. For it occurred in the cafe of Stan- hope V. Cope, and he there declared, that he would have decreed a redempiion ab initio (and not merely from the time of the grantor's of- fering. AND ANNUITIES. 271 fering to redeem) if he could have done It con- part ir. fiftent with the rules of equity. This I prefuine J^p^- he might have done, had the provifo rendered the whole tranfaftion ufurious. In Irnham v. Child^, an Annuity was fold irnhmvi Chili- and it was agreed between the parties, that it fhould be redeemable, but that no claufe for re- demption (hould be inferted in the Annuity deed under the idea, that it would render the tranfaflion ufurious : and the bill was filed to compel redemption, but was difmifled, upon the ground, that where there is no fraud, parole evi- dence fhall never be fet up againft a deed. And Lord Thurlow in his decree pointedly faid, I0 L^'^JThur- * "' low s opinio* fell an Annuity and make it r':dee?nable is ?iot a-qi;iei"d la Ufury, becaiife it is not a loan. In which opinion f^i^i^"- the ProfelTion now univerfally acquiefces. 1 cannot quit this fubieft without drawincr whetheria- ^ . ^ , ^ furances the attention of my reader to a very important render the obftrvation made by the anonymous author of ufur-ous. the Refledions on Ufury concerning the effects of the infurances made upon the lives of the gran- tors of thefe Annuities ; by which he attempts to prove, that as by thefe infaranccs the Princi- pal, which is advanced as the price of the An- nuity is kept out of any real hazard, the nego- ciation of fuch an Annuity is as ufurious as any * 1 Browii. C. C, 92. loan 272 PART II. CHAP. II. An opinion that Infu- rances con- Vert the An- nuities ufed into Loans. A TREATISE ON USURY loan, for which the lender fecures as much above five per cent Interefl, as the .^nnuity after the expences of the infurance leaves to the pur- chafer above that rate of Interefl upon the prin- cipal or purchafc-money advanced. If the An- nuity be fold at fix years' purchafe, it will ex- ceed the rate of Interefl of fixteen per cent per annum : and if the life be between tvvei ty and fifty, the infurance will amount to about four per cent; then if wre confider the Annuity a, the Interefl of the 6ocl. given fori', the purchafer will clear by the tranfaction between twelve and thirteen per cent. And he will be more fecure of his Principal, than if he had lent it upon the very be'T perfonal fecurity at that or any other rate of Interefl. But now, fays the author, (p. 12.) " Let us confider, whether with all the " afiiflance of chicanery artifice can adminifler^ " this trade will bear the teft of legal difcuflion, " Let us examine, w hether a mere loan of mo- *' ney, without any intervening article of com- *' merce, however diverfified and denominated, *' can be converted into a contraft at more than '* five per cent, without incurring the charge of " Ufury : and I think I may with confidence ** pronounce •, there is but one circumflance *' attending the contra51, that can exempt it " from illegality. The circumflance I mean, is ** rilk. An Annuity is a loan of money for " life. ol tiub opi- AND ANNUITIES. 273 ** life. Shape it, as you pleafe, and eall It what " you will, it i^ really and truly that " Jt will have appeared, I prefume, fron> the Ex..minatioa cafes 1 have already quoted, that a bond fide An- nuity is no loan in the opinion of our courts. It wants in f.:<^ the effential requifite of every loan, which is the return of the thing bor- rowed : and differs formally from a loan by this very circum lance, that the Principal is abfolutely put in hazard and funk trom the perfon, who advances it. But in as much, as fuch fales of Annuities may be ufed for the cor- rupt purpofe of difgulfing ufurious loans, even when the Principal is really hazarded, fo may it be argued, that although a real bond fide An- nuity be granted, and that there be no fraud or deceit between the contracting parties to con- vert the faie into a difguifed loan and bring it under the flatute of Ufury, yet if the Princi- pal advanced be at all events fecured to the lender, and he in the mean time receive above twelve per cent upon it, it may be immaterial, whether fuch Principal be refunded by the bor- rower or by any oiher perfon. If we argue from analogy and principle, it will be readily admitted, that if a perfon by accommodating a diftrcffed man with a fum of money fliall be per- mitted to make above twelve per cent of it with- out cxpofmg it to any hazard, the flatutes, which T prohibit 274 A TREATISE ON USURV PART II, prohibit and punifh the taking of more than CHAP. II. £^^,g pgj, ^^^^ upon other modes of accommoda- tion or loan are but frivolous and delufive. Whether In Lawky v. Hooper Lord Hardwicke had render An- fully undcr confideration this fpecies of infu- nuiues.uu- jj^^ce from hazard, when he faid : "Another " objeflion, which has been made, was that a *' man mud be out of his fenfes to lend his " money upon Annuities for a life, which may ** drop the next day, and fpeaking abftra6ledly, ** and merely on the nature of Annuities for ** life, there feems to be weight in this objec- *' tion : but every body knows, that this cafu- *' alty of lofmg the Principal is fecured by in- " furing the life, upon which the Annuity de* " pends. But it is faid, that every life cannot *' be infured : indeed the Infurance Office will ** require different terms according to the life : " but flill they may be infured." It is more- over well known from experience, that where the life is not infurable, the dealers in Annuities will never purchafe, but upon the moft exorbi* tant terms. Nor can the infrequency of fuch purchafes or accommodations, in which the life is not infurable take the ordinary cafes of An- nuities fold for the life of the feller out of the fpirit and principle of our laws againft Ufury, which are emphatically grounded in the protec- tion of the neceffitous ngainft the advantages, which AND ANNUITIES. 275 wHich may be taken of their diflrefs. So many part ii. Annuities however have been eftablifhed by the <^^hap. ii. courts, in which fuch infurances have been known to fubfift, that we muft conclude, that this circumftance does not of itfelf render the tranfafition ufurious, or convert it into a loan, if it were not fo otherwife. Nothing more, I apprehend, needs be faid upon the nature and quality of thefe Life An- nuities being ufurious. It would however be orderly here to make fome obfervations upon the conttadls for fuch Annuities, and how far they may be confidered diiind: from the fecu- rities : but as much of this queftion depends upon the interpretation of the Annuity Aft, I fhall referve that point for the following Chap- fidention of tors, which v.'ill be a comment upon the Aft; and fhall in the mean while proceed to confider the validity of thefe Annuities with referenee to their confideration. Under this head properly falls the adequacy of the confideration * of which I have but to fay ' Nothing can be more fatisfa<51oiy upon this point than what Mr. Fonblanque has faid in one of his very judicious end learned notes oti the Treatife of Equity ( i Vol. 236, 7, 8. ) " As to the pradice of purchafing Annuities for lives at a ** certain price or premium inftead of advancing the fame *♦ fum as an ordinary loan it arifcs ufuaHy from the inability *♦ of the borrowrer to give the lender a permanent fecurity for T z '' tha 276 A TREATISE ON USURY - PART II. fay generally, that as an Annuity for the life of CHAP. II. |.}jg grantor is of itfelf an Intereft or right as Ofti.ead. faleable, as any other fort of eilate or beneficial equacy of . , . • 1 • thecoiifi- mtered real or perfonal ; fo is it equally within the reach and control of all thofe tutelary maxims and rules of equity, by which all other contrads and bargains are protected from deceit impofition and fraud. If the courts have been pointedly fevere in refleding upon the mifchiefs and evils of the pernicious traffic of Life An- nuities, it arifes not from the nature of the thing, *' the return of the money borrowed at any one period of ** time. He therefore llipulates to repay annually, during his " life fome part of the money borrowed together with legal In- ** tereft for fo much of the Principal as annually remains un- *' paid as an additional compcnfation for the extraordinary " hazard run of lofing that Principal by the contingency of *' the borrower's death ; all which confiderations being calcu- *' lated and blended together will conllitute the juft propor- " tion or quantum of the Annuity granted. '' — " The real " value of that contingency," fays Sir William BlackRone, *' mud depend on llie age, conllitution, luuation and condudl " of the borrower ; and therefore the price of fuch Annuities " cannot, without the utmoll difficulty, be reduced to any " general rules: fo that if by the terms of the contract the " lender's Principal Is bond Jidc. and not colourably put in ** jeopardy, no inequality of price will make it an ufurious '' bargain ; though under fome circumftances of impoCtion, " it may be relieved againil in equity." 2 Bla.Cdm. 461. In the cafe oi Heatijcote v. Pa'ignon^ 2 Bro. Rep. Ch. 17J, Lord Thurlow AND ANNUITIES. 277 thing, but from the prevalence of it's abufe, as part 11. the purchafe of an Annuity for the Hfe of the <^^''-^^'- ^^' feller is at prefent the mod ordinary method, by which the diftrefTed and needy borrower is opprefl'ed and aggrieved by the covetous and griping lender, under all the fpirit and mifchief of Ufury, though perhaps without the letter of the laws, that punifli it. This 1 fliall endea- Thurlow feems to have followed this diftlnftion in his*)bfer- ▼ation that " if mere inadequacy is the ground of refcinding " the contraft for an Annuity, it Hiould fcem, that it was *' fcarcely fufiicient ; but there is a difference between tliat " and evidence arifing from inadequacy. If there be fuch in- " adequacy as to fliew that the perfon did not undcrfland the " bargain he made or was fo oppreffed that he was glad to ** make it, knowing its inadequacy, it would fliew a command *' over him, which amounts to a fraud." It is fcarcely pof- fiblc to enumerate all the circumflanccs, which may induce a court of equity to refcind fuch contrails. The cafes how- ever and learning upon the fubje£l are brought together in the cafes of Heathote v. Pa'igiion and Chejlerjield v. Junf.n and furnifh at leait this rule— that if there be any fraud either di- left or conftrucSive, or the parties appear to be witliin the range of that policy, which gives to particular dcicriptions of perfons an extraordinary claim to nrotc6lion, courts of equity will interpofe and give relief. But if the tranfadion is not chargeable with fraud or impofition, and the parties to it arc Ju'i lints and not in a fituatlon, which gives tliem pL-cuIi ir claims to proteftion, courts of equity in cafes of AniiuitifS, will as do courts of law, leave money to find its own vnliie ; no Acl of Parliament having prefcribcd any regulation as to the price of Annuities. T 3 vour 278 Of the in- adequacy of the confi- deration. A TREATISE ON USURY vour to elucidate more fully in the next Chapter^ when I fliall take a fummary view of the pro- ceedings of parliament upon this fubje6t. It is obvious from what has been already faid, that inequality of price bears no otherwife upon the purchafe of Annuities, than upon the pur- chafe of any other eftate or Interefl; whatever. But as it is not my intention to enter into the validity of contra^s in general, where there may have been inadequacy of confideration, I fhall content myfelf with noticing fome general doc- trine upon the fubjed:. ^ " Inadequacy of price, ab^raded from all *' other confiderations feems of itfeif (upon re- *' vifion of the bed authorities) to fumifli no " ground, on which a court of equity can fet *' afide or rather relieve a party to a contraft." It was however formerly thought otherwife by the very profound author of the Treatife of "Equity ' " In all contracts purely chargeable, if " there appear to be an inequality, although *'' there was no deceit, and all the faults of the " thing were expofed; yet if the damage be con- * Powell on Contradls, 2 vol. 152. cites i Wilf. 230. 2 Vez. 518. Bro. Rep. C. Anon. 1787, fo. 17^'. Grijith v, Spratley. Ibidem 179. i Vez. 1^5. JVoodv. Fenwick. Preced. Chan. 206. S. C. I Eq. Ca. Abr. 170. 2. Nichols v. Goulds* h. Vez. 422. * L. I. Cap. xi, Se£t. ix. " fiderable. AND ANNUITIES. 279 *' fiderable, the bargain ought to be made void, part it. *' And this eftimate of the damage is to be chap. 11. *' taken either from the exorbitance of the price <' or the poverty of the party injured, for no man " fhould be a gainer by another's lofs. But a *' fmall damage even in the law of nature, is *' not fufficient to break off a bargain for the '' benefit of traffic and the eafe of the magi- "flrate."^ I cannot ' I cannot gratify my reader more, than by giving him Mr. Fonblanque's note upon this fedlion, viz. " I have not been *' able to find a fingle cafe, in which it has been held, that ** mere inadequacy of price is a ground for the court to an- *• nul an agreernent, though executory ; if the fame appear to ** have been fairly entered into, and underflood by the par-r f ties, and capable of being fpecifically performed ; Hill lefs *• does it appear to have been confidered as a ground for re- *• fcinding an agreement actually executed.'' In the cafe of Keen v. S.tukely, Gilb. Rep. 155, the court exprefsly held, that the exorbitancy of the price was not fufficient to dif- charge the defendant from the performance of his contradl ; the decree for a fpccific performance was, indeed, afterwards reverfed, but not upon the ground of inadequacy of confide- ration but becaufe the plaintiff had not made out his title by the time lUpulated, 2 Bro. P. C. 396. In JViHis v. Torne^^an^ 2 Atk. 251, Lord Hardwickc held, that " it is not fufficient " to fet afidc an agreement in equity, to fugged: we:iknefs " and indifcretion in one of the parlies, who has engaged in " it ; for fuppofing it to be in fadl a very hard and uncon- " fcionablt. bargain, if a perfon will enter into it with hise)o» *' open, equity will not relieve him upon this footiu'j: luKU «.♦ he zww ffiew fraud." See alio Floycr v. SUrrard, AuiMci 's T4 Rep. 2So A TREATISE ON USURY I caiinot forbear mentioning; again the caie of Heaihcotc v. i'a'igtion ' as emphaticLlly aft'eding Cafe upon tlic i aljcdt of our prcfent confideration. Heathr in:de.juacy r i • r i i i • r 1 ofpnce. cote at the age or thirty lold an Annuity or 5'!. for his own life for 200I, or four years pur- Heathcote chafe : and after his deat|i, the grantor of the y.?u,g„on. Annuity filed a bill againfl Mary Paigiion the widow to be permitted to redeem. Lord Kenyon, then Mailer of 'he Rolls, before whom the caufe came on to be heard, referred it to the Mafter to enquire and Hate to the Court the value and the market price of the Annuity at Rep. p. 18. In Givyr.ne v. Hcaton, I Bro. Gh. Rep. 9. L; rd Thurlow obferves that *■■'■ to fet afide a convcvarrce there vnuft "■■ be an inequahty fo ftrong, grofs, and manifcft, that it muft *' be impoffible to liate it to a man of common feme, with- ^* out producing pn cxclamntiri, at the inequah'ty of it.'' And in SpratJ.-y v, Gri/RiJ?, 2 Brown's Chan. Rep. 179, in a note to Hca'hcote v. Paignon, tiie Chief Baron afiigned as a ground for the decree that there was '*' no cafe, in which mere inade- " qnacy of price independent of other circumftances had been " hid fufHcient to ftt afide a contract.'' See alfo Stcphetn V. Bateman, i Bro. Ch. Rep. 22. Henley v. Afton, 2 Bro. Ch. Rep. 17. In addition to this concurrence of authority a very flrong argument in fupport of the lule may be drawn from thofe cafes, in which loling bargains have been a£lually efta- bhflied and decreed, Cily of London v. Rhhmotid et al. 2 Vern. 423. Wood V. Fenzvick, I Eq. Ca, Abr. 170. Nichols v. Goi/ld, 1 Vez. 422, and the calc refeired to by Lord Chan- cellor Thurk'W, in Li ot timer v. Cjpptr, 1 Bro. Ch. Rep. 158, See <-ufo Domat's Civil Law, c. ii. tit. 2. f. 3. ' 3 Br. Ch. Ca. 167. the AND ANNUITIES. 281 the time of the purchafe. The Mafter's report part 11. fluted, that by Mr. Bland's calculation the value ^'^^p- "♦ pf the Annuity for Mr. Heathcote's life at the age of thirty, was eleven years and fix-tenths of a year's purchafe : and that the market price "was fix years' purchafe. When the caufe came on again to be heard, his 1 ionour declared, that the late John Paignon taking advantage of the diltrefs of the plaintiff Heathcote had pur- chafed the Annuity under the market price, and therefore decreed the purchafe to be fet afide. And the decree upoi; appeal was affirmed by Lord Thurlcv/. T'.vo ol-'ervatlons are to be made upon what i-ordThur- low's opl- hij Lordiliip declared on this occafion, after the "'°" "p®* the calc, caie had been nioft elaborately argued on both fides. 1°, How much he inclined to look upon this tranfadion as a loan. " Where there " has been a loan, and the terms have been *' fuch, as to Ihcw the didrefs of the party, the " Court has given relief: here was twenty-three " per cent clear profit with a certainty of the " Principal being fecure.'* 2°, How tender he was in declaring, that the bargain fliould be re- fcinded for mere inadequacy of price. " Now " if I declare, that having given but two fifths " of the value for the Annuity, fecured by the " infurancc, was taking advantage of his dil- ^' trefs, that will be a proper preface to my af- *> firming 2S2 A TREATISE ON USURY PART II. " firming this decree, but that will decreafe the f""^''- "; " future price of Annuiries. I cannot fay, that " being at all under the greatefl price, that *' could be obtained, would be a fufficient rea- " fon for refcinding the tranfadion." In the next Chapter I fhall have occafion to fpeak. of jnd market and Tcfcr to more fatisfattory documents con- jikc differ. __ "^ cerning the real value of thefe Aiiiiuities for the lives of the grantors. I Ihall here barely remark, that the value and the market price vary widely from each other : that the market price is fixed and regulated by the dealers, whofe in- terefl: it is to keep it as low as poffible : that the value cannot like other commodities vary from fafiiion accident fcarcity or plenty, but merely from the price of bullion. And for this reafon did Lord Hardwicke fay in Lawley v. Hooper ; '' I ** believe in my confcience, that the difference, V which Is now made between the value of An- " nuities for one's own life and that of another, ** has been entirely caufed by the dealers in " thefe Annuities." Where It appears upon the whole confideratlon of w wiU re- this matter, that bare inadequacy of price is not a lufH.cient ground either at law or in equity to refcind a contradl or bargain : but then this fup- pofition exclud'js from the tranfaftion every cir- cumftance of deceit, fraud, impofition, fear, un- due influence, hardfhip, dillrefs, opprefTion. ex- tortion licvs, AND ANNUITIES. 2S3 tortlon or neceffity : and under this exclufion we part ii. may indeed fuppofe a pofllble cafe, but rarely chap. 11. meet with an a6tual cafe of grofs inadequacy of price. It would exceed the propofed limits of this treatife to enter into the various inflances ' in * For inflances, in which equity has relieved, where there has been inadequacy of price, vid. Clark/on v. Hanivay, 2 P. XVill. 203. Coles V. Gihhons^ 3 P. Will. 290. Fox v. Macreth, z Bro. Ch. Ca. 167. Ardglafs w.Mufchampy i Vern. 75. and 239. Berney v. Pitt, 2 Vern. 14. Tiv'i/Ieton v. Griffiths t l P. Will. 310, Croiu V. Ballard, 3 Bro. Ch. Ca. 117. and I Vez. jun. 215. G'wytine v. Heaton, I Bro. Ch. Ca. i . — It will not be here Improper to Hate, that Lord Hardwicke in the great cafe of Chejlerjield v. "Janfen (2 Vez. iSS') ^^i"^ down as leading rules in matters of this nature four different fpecies of fraud, viz. ♦' lo. Fraud, which is dolus malus may be aftual arifing •' from fa6ls and circumftances of impofition, which is the ** plained cafe. 2°. It may be apparent from the intrinfic na- *' ture and fubjeft of the bargain itfelf ; fuch as no man in his ** fenfes and not under delufion would make on the one hand, ** and as no honeft and fair man would accept on the other ; *' which are unequitable and unconfcionable bargains ; and *• of fuch even the common law has taken notice ; for which '• if it would not look a little ludicrous might be cited, i Lev. 3. " yames v. Morgan. A 3d kind of fraud is which may *• be prefumed from the circumftances and condition of the •* parties contiaftlng, and this goes further than the rule of *• law ; which is that it mud be proved, not prtfiimed : but it *' is wifely eftabliflied in this Court to prevent taking furrep- " litlous advantage of the weakncfs or necelFity of another; " wiilch knowingly to do is equally again It confcience as *' to take advantage of his ignorance : a perfon is equally un- *♦ able to judge for himfclf in one as the other. A 4th kind « of 2S4 A TREATISE ON USURY in which equity and even common law will re- lieve in hard unconfcionable or catching bar- gains. For fo was it faid by parliament (6 Ric. 2.) " If any man be grieved by Ufurie upon ac- " count, trefpafs, extortion, deceit, or fuch like " means, the laws and cuitoms of the realm " fliall punifli the fame." Various con. It would bc almoft ufclcfs to obferve, as an Annuity for the life of the grantor is of its own nature an Intereft or eftate as valid and effe:!ual in law as any other, that it requires no other confideration for its being granted than any other fpecies of eftate. It may therefore be granted in confideration of marriage, of blood, for paft or future fervices, pro co?ici/io impenfo or federations. *' of fraud may be colledled or inferred in the confideration *' of this Court from the nature and eircumllances of the *' tranfaftion, as being an impofition and deceit on the other " pcrfons not parties to the fraudulent agreement. It may *' found odd that an agreement may be infedcd by being a *' deceit on others, not parties : but fuch there are, and againft "■ fuch tliere has been relief. Of this kind have been mar* " riage brocage contra«5^s : neither of the parties herein being " deceived : but they tend necefliirily to the deceit on or.e " party to the marriage, or of the parent or of the frien(]. So ** in a clandcltine, private, agreement to return part of the '■ portion of the wife or provifion Uipulated for the hulband " to the parent or guardian. In moil of thefe caf:s it is done «' with their eyes open and knowing what they do : but if " there is fraud therein, the Court holds it infedtd thereby, «• ai.d relieves.'' arnngton, lel. AND ANNUITIES. 2S5 impendendo^ or even voluntarily. But where the tart ii. confideration is pro caiijd turpi, &c. there equity ^^ha?. ii. will interfere as in Harrington v. Du Chattel ^ Pro cavj& The late Lord Rochford being groom of the flole to his Majerty and confequenily recom- mending pages of the prefence, undertook to re- commend the plaintiff's executor upon a vacancy, on condition, that he fliould grant two Annuities Ha one of lool. to St. Ferrol his Lordfhip's travel- ling tutor and one of 40I. to another perfon. An action being brought upon the Annuity Bond, the plaintiff filed his bill for an injundlion, which was accordingly granted upon the policy of the law, although the office were not within the 5th and 6th of Edward VI. And the chancellor Lord Thurlow doubted, whether it might not have been brought upon the record at law by a plea, and made a defence there to the action, but thought that not a fufficient reafon to prevent his interpofition^ the court of lav/ never having determined, that it could be fo brought there as a defence. His Lnrd.'hip treated it as a matter of public poUcy of the law, and fimilar to mai- riage brocage bonds, where though \\-\q. parties are private perfons, the prac^lice is publicly de- trimental, ."-o Lord Hardwicke had faid in Cole v. CiU'on'', " T his court has been extremely jea- ' iBro. C. C. 125. * 1 Vez. ^o(\ I " lous iZS PART II. CHAP. II. Policy of fetting afide marriage brocage k>fids. Annuities for lives of grantors ge- nerally fe- cured on life ^itates. A TREATISE ON USURY " lous of any contra£l of this kind made with a ** guardian or fervant, efpecially with a fervant,' " in refpect of the martiage of perlons, o er '* whom they have an influence; and by rules *• eftablifhed, not regarding whether the march is " proper or no, if brought about by a marriage ** brocage contrail, fets it afide ; not ior the fake '* of the particular inflance or th6 perfoh, but of " the public." I mud referve what further obfervations arife upon the cdnfideration of Annuities to the fol- lowing Chapters, as they will be produced by of" connected with the Annuity Ad. I (hall there- fore now proceed to confider the powers exer- cifed by the courts of law and equity in fetting afide thefe Annuities. Few indeed will be the inftances, that I can with propriety at prefent examine, as mod of the cafes, upon which An- nuities have been fet afide have been determined upon the ftatute. It is obvious from the nature of life eflates or interefls, that thefe Annuities for the lives of the grantors are generally fecured upon them : for few Annuities are granted tipon mere perfonal fecurities : and of thefe life eftates by far the greater part cOnfifts of the pay falaries or ap- pointments of the clergy and officers civil naval aiid military. Of the utmoft importance then will it be to the public, that the validity of An- nuities' AKD ANNUITIES. 287 niiities fecured upon this fpecies of income fliould ^-'^^'^ "• be fully and fairly canvalTed '. 's—,^,!^^ It feems now to be finallyfettled, that wherever whether the pay an4 an illegal aiTignment is made for fecuring an An- h^if payc-r -11 ^• ' r y officers af- nuity, the courts will upon application for that lijnabie. purpofe vacate the Annuity. The principles, upon which the courts have very recently de- cided officers* pay and half pay to be neither * Mr. Erflcine has fpoken very feelingly of the mifchiefa arlfing from oflicers of the army and navy being reduced to the ncceflity of raiCng money, by this deftruflive procefs» (Ref. 28. 29.) " Nor is it the infatuated gamefler or carclel's ♦♦ fpendthrift, that are alone or cliieily to be lamented} the ** moft ufeful and laborious fcrvants of the public are rendered ** miferable for life by this inhuman traffic ; the ofHcers of the *' army and navy led into inevitable expcnces beyond the an- •' qual income of their commifljons, incurred for the public ** defence, are fnatched upbytliefc harpies, and their fubfilt- *• ence (hared among jews or vvorfc Chrifiians in the luxti- " ries of London while they arc fuffcring hunger and cold^ *• and worfe than death for th^ir country ; five years purchafe " is the moft they receive from the additional hazard of mill- ♦' tary life, the confcicnce of the Jew is at reil from this cal- " culation who eats his pork in a corner, while the gallant ** foldier is flarving. ** Surely if paHiamcnt cannot raife their pay, or prohibit •• this aggravation of povcity, it might ellablifh a fund where *' fubaUerns or others at the recommendation of their fupe- *' riors, might borrow fmall fums rendered necefTary by cmer- " gcnciea of duty, to be refunded by a fmall floppage on their ♦* pay, which at the fame time that government would be ** indemnified would not be felt by the ofiicer." 7 afTignable 288 A TREATISE ON USURY PART II. afTignable in law nor equity are of fuch general ^"^r — • '^Ppl'c^^io" ^^^d of fuch important confequence that we cannot be too particular in exami ing their nature and eftc£ts. It is hi-^Iiiy to the ho- nour of the refpcclable chardders, that now fill the benches, that fo humane and jufta determi- nation fhould have at length fettied thi . import- ant point : yet as fome decifions and fayings of very great men appear at variance with thefe late decifions, it will be the more requifite to trace the principles and grounds of their determina- tions up to their origin: more efpecially, as every reafon, why the pay and half pay of an officer is not aflignable applies with double force to be- nefices livings and other clerical flipends : and at this moment many are the unfortunate cafes, in which well deferving clergymen clogged with thefe deadly weights are rendered ufelefs to their calling, the difdain of the wealthy, the contempt of their poor pariihioners, and utterly difabled to keep themfelves and families in decent inde- pendence or refpedtability, for which exclufive purpofes the living benefice or (Hpend was fettled upon them. Oliver-^. The firfl: cafe, that I find really pointed and relevant to this fubjefl is that of Oliver v. E?t^ fonne ' where an Annuity had been granted ^ I Dyer, 6 Hen. Vill. fr9 AND ANNUITIES. aSj ph) roncilio i?npenfo et impende?ido to be iffumg part ir. but of a manor, of which a ftranger was feifed. ^^^^^^^^^^ Enfonne the defendant was attainted of high what-snot " forfeitable it treafon, and upon demurrer it was adjudged, that noraiTigna- the Annuity (or rent) " was not forfeited to the *' King becaufe it was incident to the caufe^ for *' wh'ch it was gi'ven (namely the trufl and con- *' fidence, which the grantor had in him for his *' advice,) which he could not grant to another " perfon, and which for the fame reafon he could ** not forfeit. As if a man be created a Duke, and *' for the maintenance of his dignity the King *' grants an Annuity of 20I. to him, he cannot *' grant this to another^ becaufe it is incident to his " dignity:' ' Againft or at leafl without reference or atten- Cafesia • ^ r • • 1 r • winch of- tion to tneie prmciples fo unequivocally laid ficers' pay- down in Dyer, Plowden and Cooke, there have afTimed in been decided many cafes, in which aflignments of officers' pay and half-pay have been allowed at leaft in equity. ^ In Crouch v. Martin ^ it * Vid. alfo the cafes of Sir Henry Neville and of Sir Tho Inas Wroth, but particularly the former in Plowden 377 and 452. Alfo 2 Inft. 9. where the King formerly granted lands annuities &c. ad fuftincndum nomen et onus of the peer- age. Dyer 7. * The cafes in favour of fuch alTignments In equity are ail brought together in the argument for the plaintiff in Stone V. Litterdale and others in the Exchequer, ilil. 35. p. Ill, aAnft. 533. ^ z Vern. 59^. Mich. 1707. \^ was equity. 290 PART II. CHAP. II. Lord Hard- wicke ad- mitted of fuch afllgn- ments. Gomez v, Graham. A TREATISE ON USURY was exprefsly faid, that " Seamen's wages are " afTignable, and the aflignment fpecifically ** binds the wages, and in truth the advancing ** the lool. on the credit of the wages is, as it *' were paying the wages beforehand. It is a *' chofe en action, although the fervice not then ** done, and a chofe en action is afiignable in " equity upon a confideration paid." The next cafe was that of Grainger v. Wyvill before Lord King 1728 % where his Lordlhip granted an application to fequefter the half-pay of an officer in the hands of the treafurer of the navy. In a cafe before Lord Hardwicke ex farte Butler and Purnell the ^Jfignees of Edward Rich^ ardfon a bankrupt % where the quellion being, whether the office of under-marfhal of the city was adignable under the bankrupt laws, his Lord- fhip held, that it was afngnable : and he added, that " if an officer in the array fhould become " a bankrupt, he had no doubt, but that he had *' a power to lay his hands upon his pay for the " benefit of his creditors.'* This feems to have been a rooted opinion of Lord Hardv»icke. For it appears by the Regiftry Book in Chancery (though reported by none ' ) in Gomez. \. Gra- ham, that Gomez a money-lender had filed a * From a Manufcript In the pofiinion of INIiv Hargrave. * I Atk. 210. 3 2 Black. 1x38. bill AND ANNUITIES. 29^ \n\l acrainfl Graham Fort Major and Phillips partii. . . CHAP. II. governor of Annapolis Royal in Nova Scotia ^ ' .,' and Gould agent to the garrifon, and the defen- dant not appearing, it was ordered, that the defendants Phillips and Gould fiiould pay to the plaintiff Gomez what was due to the defendant Graham for his falary as Fort Major, at and frulh the time they had notice of his having afTigned fuch falary to the plaintiff by de-^d. And it appear- ed upon the rehearing of the caufe, that the aflign- ment was of Graham's growing pay, in conft- deraiion of 2 25 1, to fecure an Annuity of 3'oL for Graham's life, with power of redemption at the end of two years or after. Gould the agent by his anfwer infilled, that he was ac- countable to the officer only and was not to re- gard his aflignments. Lord Hardwicke feverfed the decree at the Rolls, and direded the account to be taken from the time of Gotdd's putting in his anfwer, and decreed that Gould (hould there- out pay the arrears of the Annuity and cofts, and continue 10 pay the quarterly payments thereof out of the pay of the faid Graham, io long as Graham Ihall be entitled to fuch pay and the faid Annuhy fhall continue. Gould to have his cofls out of Graham's pay after payment of the plaintiff's arrears. In 6tuart v. Tucker ' the half-pay of an offi- * 2 Black. Rep. 1 157. U 2 cer 292 A TREATISE ON USUItY TART n. cer had been afligned for fecuring an Annuity CHAP. n. granted by that officer for his own life, with a Haif.pay covcnant to affign alfo any larger falary he l^lStt might afterwards obtain for the fame purpofe. Tucker. ^j^j-jg defendant, who was paymafter in confe- quence of notice of the deed, by which the half-pay was affigned, had for fome years paid- the fame to the executors ©f the afTignee. The plaintiff" was afterwards difcharged under the Infolvent Debtors' Aft ; and then he gave notice to the defendant and infifted upon having his half-pay made to himfelf; but the defendant would pay it to no other, than the firft affignee. And the queftion was, whether the plaintiff was precluded by the deed of affignment from re- covering in this aftion the half pay, for which it was brought ? Glymi for the plaintiff made a mofl; folid argument, which the Reporter has thus comprefled : " Neither whole nor half-pay " is aflignable at law. It is a cafual profit and *' the gift of the crown, which is not enabled to " grant it, otherwife than by an annual vote in ** parliament. It is given on public grounds, ** for the honour and fupport of the officer, " and does not pafs by the ufual operations of *' law. It is never affected by commiflions of ** bankrupt, infolvent ads &c. ; nor can it be "betaken in execution.*' For the defendant it was urged, that the point had been already 7 ' fettled AND ANNUITIES. fettled in Gomez v. Graham : this however, Gly7in obferved, was a cafe in equity. De Gtey Cb. J. drew a difference between whole and half pay : Ithe one being profer-vitio impendendoy the other profervi.io impenfo : he obferved, that it was fet- tled in Gomez v. Graham, that although the pay, as a chofe en adion be not afTignable by law ; yet that it is affignable in equity. The plaintiff hav- ing for a valuable confideration affigned over this half-pay, was not entitled by this equitable adion to recover it to his own ufe^ and he was accordingly nonfuited. The cafe of Taies v. Elliott cited in Stuart v. 'fucker was ruled in the fame manner by Lord Mansfield at the Sittings in 1770. And in 1773 Lord Bathurft decided, in Spencer v. Cox and Drummond ', that an army agent was bounden in confequence of notice of an officer's having affigned over his pay for fecuring an Annuity, to pay it to fuch affignee. In all thefe cafes, numerous as they are, the Court never feems to have confidtred the real and true ground of the pay not being affignable, which are the princi- ples laid down in our earlier reporters and are too deeply founded in law to be ffiaken or over- fet by any fubfequcnt decifions. We muft now coiifulcr the grounds, upon which the courts 293 PART II. CHAP. II, De Grey's dilferenc* between whole and hall pay ad- mits the af- fignment of the latter. » Cited in 2 Anft. 33c. have 294 A TREATISE ON USURY PART II. have over-ruled thefe later diftindtions and de- f"^^ '^; terminations. In the cafe of Flarty v. Odlum^ the queflion was, SflS-* whether the half-pay of an officer of a reduced nie^ntot h.if regiment (hould be included in his fchedulc deli- Fiarty V. vered in under the Lords' Act '. Lord Kenyon was clearly of opinion that this half-pay could not be legally affigned by the defendant, and con- fequently, that the creditors were not entitled to an affignment of it for their benefit. Emolu- ments of this fort are granted for the dignity of the State, and for the decent fupport of thofe perfons, who are engaged in the fervice of it. And although fuch affignments had frequently been made in fa6l, they could not be fupported in law. It might, added his Lordfiiip, be as well contended, that the faiaries of the Judges, which are granted to fupport the dignity of the State and the adminiflration of juflice may be af- figned. Bulur J. took a very important dif- tindion. " If the queflion had been, v»'hether " or not the pay, which was adually due might " be affigned, I f.iould have th^r.ght it, like any " other exifting debt fllgnable : but that does ^* not extend tofuUire accruing payments." ^ ' 3 Term. R<»p. (9,i. • 3 2Geo. li.c. 28. fca. 13. 3 The fame point was de'.ennined about a year and a half before tlifs by Lord Thuilow in the cafe of Captain Kennedy a bankrupt. This AND ANNUITIE?. 295 This point was very folemnly confirmed in part ii. Litterdale v. the Duke of Montrofe and Lord ^iii^'^* Mulgrave Paymajiers-General of the yinny ' in i-j'terdaie v. which the fpecific cafe of an affignment of the Montrofe, half-pay recurred. Erfkine obferved particu- larly, that the cafe of Flarty v. Odium decided the prefent, and that it was determined by the Court on great deliberation and after having at- tentively confidered the cafe of Stuar: v. Tucker^ and all the other cafes on the fubjeifl. And the Court faid, that on the bed confideration, which they had been able to give to this queftion, they faw no reafon to retradl the opinion, which they had delivered in Flarty v. Odium. The queftion mud certainly be now fet to reft by the late determination in Stone v. Litterdale and others^ which was an attempt to prove the affignment, which had been declared null in law to be valid ifi equity. And here as I before obferved all the cafes upon the fubjecc were urged and confidered by the Court. And before the Chief Baron would deliver the opinion of the Court, he declared that as the cafes were contra- didory, he would look Into them. In giving judgment he faid, that the cafe in Dyer and the declfions in both the other courts in qaedlons ^milar to the prefent fix the true principles of ' 4 Term,. Rep. 253, U 4 law 296 PART ir, CHAP. II. Neither whole nor half-pay now can be aiTigned. Stronger ^reafons for benefices not being af- fi" liable. A TREATISE ON USURY law upon the fubje<5l, and decide the prefcnt cafe. It is obvious, that the three cafes of Flarty v. Odium, Litterdale v. Duke of Montrofe, and Stone V. Litterdale and others^ have now irrevocably efta- bliihed this general rule, that wherever an An- nuity pay falary or flipend is granted by the public for a reafon of public policy no transfer or a(Iignme:it of the growinc^ payments can be validly made either in law or in equity. The pay is annexed to the perfon, and as Dyer faid, incident to the caufe, for which it was granted and when aliened is diverted from the purpofe, for which it was intended and folely given. We have {^oti the lawfulnefs of a marrlcigc within the Levitical degrees. His own words will bcft explain Ivs own fcnCe. " If '* by a lawful canon a marriage is declared to be agaiiid God's ** law, we mult admit it to be {o : lor a lawful canon is the " law of the kingdom, as well as an aci of parliament; and *' whatever is the law of the kingdom is as much the law, as •' any thing elfe is fo ; for what is law, doth x\ii\. fyfcipere ma- *' gts avt minus. But by a Jaivf:'l canon of //'/j kingdnm 'which is '• eni-'uyh, and not only fo, but by a canon warranted by aft of ** parliament, the marriage in cpi-jllion is declared to be pro- " hibited by God's law, therefore we m,ull fubmit it to «* be fu." the 30O A TREATISE ON USURY FART II. the 13th of Elizabeth (c. xx.) is explicit and ^^;:l^ conclufive. The fiiort preamble of the Act is peculiarly pointed : " Tiiat the livings appointed foreccle- " fiailical miniiters may not by corrupt and in* ^' direct dealings be transferred to other ufes : Be *' it ena£ted (amongft other things) that all " chargings of fuch benefices with cure hereafter " with any penlion, or with any profit out of the .** fame to be yielded or taken hereafter to be " made (other than rents to be referved upon . " leafcs hereafter to be made according to the '' meaning of this h.^)^Jhallhe utterly void." A law fo glaringly explicit wants neither comment jior explanation. A general It appears from experimental obfervation, that this law is either little known or little at:ended to. In Hunt v. Singlet on"^, which was a cafe upon the invalidity of a church leafe under the 13th of Elizabeth, it was faid, that " the ftatute " here needs pot to be found by the verdid, be- •' caufe it is a general laiv.^' As a general law therefore, of which the Judges are bounden to take notice, it has ever appeared to me fmgular, that in a cafe fo much agitated and canvafTed as that of Murray v. Flardingew^s, not a hint {hould have been thrown out by either counfel or court, * Cro. EKz. 564. Vld. alfo CartiT v. C/ajcoIcs, I Leon, Boic to be pleaded. AND ANNUITIES. that the Annuity granted out of the living of Grafton Regis was by the 13th of Elizabeth k/- terly void. It is highly probable, that many oiFicers both upon whole and half pay, and many clergymen, who have long lived in mifery from their fup- port and maintenance being transferred to the ufe of Annuitants, may wifh by fettlng afide their Annuities to emerge out of that abyfs of wretch- cdnefs, to which the fummer of their life has been devoted. But as it rarely happens, that thefe Annuities are granted without all the fecu- rities, that can be given, a bond and warrant of attorney to confefs judgment ufually accompany or precede or follow the ailignments or charges, which are of themfelves illegal and void. It o will then be readily admitted, that if the condi- tion of the bond be for the performance of co- venants in the deed, which affigns or charges the pay or living with the Annuity, then if the dtc^ itfelf be void, the bend and warrant of attorney w;ll alfo be void. But if, as the cafe more fre- quently happens, the bond be far the payment of the Annuity, and the deed of affignment or charge be but as a collateral fscurity for better infuring the payment of that Annuity, the quef- lion will then be. Are the bond and warrant of attorney in fuch cafe void or not ? It is of the utmoft importance to afcertain the iii!;hts 301 Mlferalile c^fes of irianyof- licers and clergymen. Whether the bond and wjrr.at void. 50Z A TREATISE ON USURY PART IT. rights of the parties under thefe circumflancel* , w!-3' ^f notwithftanding the nullity of the deed of af- fignment or charge, the clergyman's bond and warrant of attorney be valid againfl him, little will it avail him to eftablifh the nullity of the deed ; for by the ordinary eflfeifts of the bond and judgment entered up, his perfon his eftate and his living will be liable to the arrears and growing payments of the Annuity. This was precifely Cafe of the cafe of Murray v. Hardhge, where befides HaTdnfge^' the deed charging his living with the Annuity Mr. Hardinge alfo entered into a bond condi' iioned for poyment of the /aid Annuiiy or redemp- tion of the fame as aforefaid, with a warrant of attorney to confefs judgment thereon. And the Court Vv'ithout any reference to or notice of the nullity of the deed, made '' a rule, that on pay- " ment of the arrears then due to Mrs. Murray *' on thefaid Annuity, the reft of the money le- " vied (they had levied for the whole confidera- *' tion of the bond) be returned to the defendan^t *' and proceedings to flay till further orders-. " The plaintiff to be at liberty to apply to the " Court from time to time to take out frefh exe- " cutions, as frefli arrears may accrue.'* Are the di- This is a cafc, in which, abilracling from the leftions of f\' r r a the courtin queltion of the nullity of the Annuity, the Court MuTiay V. J. _^ . ^, Hardinge directcd and fanctioned the procefs and remedy wThiVtiii. ^f t^e grantee of the Annuity under a bond and judgment. AND ANNUITIES. 30: judgment. It may alfo be fald, if fuch bond and warrant of attorney be valid, that upon the judgment entered up a fieri facias may be fued out and upon that being returned to the fheriif, writs may iflue, under which the profits of the living may be fequeftered '. We are then to confider the full eiFe£t of the flatute of Eliza- beth, which fays that all chargings of fuch bene- fices with any penfion or profit out of the fame to be yielded or taken fhall be utterly void : but will they be fo, if under the bond and judc^ment, the arrears and growing payments of the Annuity may in any poflible cafe be levied upon the bene- fice or living, either by fequeflration or other- wife ? Ex confcjfo the bond is given for the payment Deeds void of one and the fame Annuity, as is charged upon and v^iid n the living by the deed. Can the Annuity then p°fes."^ ^ be utterly void hy the ftatute and at the fame time remain valid and operative by common law ? It certainly is no uncommon thing, that a deed fliall be void as to fome purpofes, and valid as to others ; but this mufl be fub diverfo intuitu : as covenants have been operative in leafes, that were void under this very Aift of 13 Elizabeth ! I cannot pretend to fay, that every judgment againfl a beneficed clergyman Ihali be utterly * Burne't Ecclefiaftical Law, a Vol. 339. cites Watf. 15* void 3^4 PART ir. CHAP. II. Everydecd vuid that is made witli a view to charge the living. How the equity of thisftatute to be ex- tended. A TREATfSE CM USURY void to all intents and purpofes, becaufe the 13th of Elizabeth will make it void as to his living : but at the fame ti.iie it appears clear^ that this utter avoidance of every charge upon i benefice with cure affected by the (latute, will abfolutely and to all intents and purpofes render null and void every deed or inflrument, which is made with a view to the charging of fuch living, whether the deed by exprefs and fpecific words do charge the benefice, or affect it only by its general operation, or by its proximate or re- mote effects. In fuch cafes, the interpretatiori of the law will I prefume clofely attend the equity of the (latute, which is for general good, viz. that church livings may not be transferred to other ufes. And it is not pofTible to prefume, that a bond and a warrant of attorney given by a beneficed clergyman, whether accompanied or not with a deed charging his benefice or a cove- nant to charge that or any future benefice, to Te- cure the payment of an Annuity for his own life, fhould not have been given with a view to charge and affed his prefent and future living, and therefore a charging cffuch benefice with a jcrjion or profit out of the fame to he yielded or taken under the Jiatute ; and confequently utterly void by the fame. If we take into confideration the evil, which by this part of the ftatute was intended to be re- prefledj - AND ANNUITIES. prefled, viz. the transferring of church livings to other ejiates^ we fhall perceive the mofl urgent reafon for extending the equity of the flatute even beyond the letter. I'he Court would, I doubt not, a6: in fuch cafes upon ihe fame prin- ciples, that actuate their decifions in matters of Ufury. They wo>fj J look to the fubflance, not to the form of the tranfacllon. Any omillion to mention the benefice or living in the bond deed or inftrument, by which the Annuity is fecured for the life of the incumbent, when in fa*5l it was the real and fubftantial confidcration of the grant, muft be looked upon as a mere evafion of the ftatute and therefore be utterly void. I do not however hazard the aflertion fo broadly, as to avoid ipfo facto every deed bond or fecurity from a clergyman, that might otherwife have af- fedled his benefice, were not that particular ef- fect obviated and prevented by the ftatute. I humbly therefore fugged this diftindion between fuch bonds deeds and inftruments, as the ftatute avoids, and fuch as it does not avoid, although it may control their operation upon the living or benefice of the incumbent. If then a perfon not being a clergyman fliould have entered into an Annuity bond and warrant of attorney to con- fefs a judgment, and that judgment fhould have been entered up, and afterwards he fhould take to orders and be inducted to a living, then al- X though 305 Diffcirnce of a bond and judg- ment before and wliilft in poffelTiOTi of a living. 3o6 A TREATISE ON USURY PART II. though the judgment might have affefted the bc- CfiAR H^ nefice by fubjeding it to fequeftration or other- wife, yet the ttatu'.e would prevent this effect, though it did not avoid the bond: but otherwife would it 1 conceive be, in cafe the bond were entered into with a view of fecuring the An- nuity out of the living. A djed exprefsly char- ging or affeding the benefice or living uith the fame Annuity as is fecured under the bond and judgment will from it's nature be conclufive evi- dence, that the Annuity fecured under the bond and judgment was intended to be a charging of the benefice therewith, and will conftquently be utterly void by the ftatute as to fuch benefice. From what has been faid concerning the af- fignments or charges of the benefices falaries or Benefices Aipcnds of the clergy it mull appear, that be- afaktycom. ^^^^^ ^^^ general principles of law equity and jnon canon poHcv, which rcndcr them unalienable in com- er ftatute r J ^ ^*^^"'' mon with the pay and half-pay of military and naval officers and with the Judges falaries and other civil appointments, the common, Jhituie and canon laio exprefsly make them unaflignable or chargeable either at law or equity ^ Prohibitory '^ Having faid fo much of the inilawfulnefs and illegality of aliening or charging eccleliaftical livings or benefices, it may be naturally expefted, that I fliould add fomething of the procefs o^ feiiuefirationy which uiidk^r Ibme circumftances ap- pears AND ANNUITIES. 307 Prohibitory and reftralning laws vary much PARXir. in their modes of reflraint : fome prohibit the ^"'^^- "; thinf DitYerentcf- feds of pro- .,•,■,• r.1 ' r ■, ■ • 1 CI hibitory pears to militate directly againlt the principles of the canon j^vj, ftatute and common law. In the cafe of IValwyn v. Aiiberry and others, 2 Mod. 254, and which is reported as anony- mous, I Mod. 258. Trln. 29 Car. II. C. B. North, who was then Chief Jullice faid : " The Bidiop is in the nature of •* an Ecclefiaftical Sheriff. If an acSlion of debt were brought " agaiiid a clerk and t.he Sheriff had returned upon zjiri facias, " that tl\e defendant \v2lZ chrkus Lenefc'ujlus ncn bahens laiciim *^ feodum, there Illued a fieri facias to the Bifliop, upon which *' he ufed to fequefter (as they call it) the ecclefiaftical pof- *' feflions of the defendant, but that is not properly a feque- " ilration : for the Ordinary muft no*; reiurr) fequeffrari feci : *' he mufl return fieri feci or fiuHa bona, in like manner as a " Sheriff of a county muft do. This I have known in expe- '* ricnce, that a Blfliop has been ordered to amend his return* •' The reafon of this procefs was, becaufe the poffeffions of *' ecclefiaftical perfons were fo diftinft from temporal poffef- *' fions, that they could not be fubjedl to the ordinary procef* " of the temporal law, no more than the poffeifions of lay- •' men could be fubjccl to their jurifditlion." The like is faid by Lord Coke in his comment upon Stat. Wcftm. 2. 2 Inft. 472. Now if the Difliop were compellable to fequefter the be- nefice of the incumbent by virtue of the writ, whicli iffued out of a temporal court, and to make a return to it and could be ordered to amend his return, it is evident, tliat the eccle- fiaftical poffeffions and the ordinary with reference to them were under the jurifdidlion and control of the temporal court : but although ecclefiaftical property be to fome purpofes taken out of the ordinary procefs of the common law, ftill the very exemption proves it to be uhimatcly fubjedl and liable to that X 2 law, 3o8 A TREATISE ON USURY PART II. thing to be done and infli£t a penalty for doing ♦^ it : hwt fadum valet, qitodjieri non dehuit : others render law, which fubjeftecl it to dilTcrcnt rules and principles, from thofe, which govern temporal or lay pofTeffions. As this fpecies of feque ft ration is founded in a judgment of law had acrainft the incumbent the iiTuing of thu Jien facias becomes as it were the actual deprivation of the incumbent's bcnclice, and the diverfion of the profits to another puruofe, than the law had appropriated them. This judgment muft be eitlier voluntary or unvoluntary againft the clergyman. If the firft, then a judgment may thus become the mean of his voluntary alienation of the profits of his benefice ; if the fecond, then will it enable him to eiTe£l that by his folly and extravagance, which the law will not permit him to do even for a valuable confideration and with full reflcftion. It may not be imper- tinent here to examine the principles of our common law upon the nature of this property and to examine how far the Legiflature has llept in to alter qualify counteract fup- port or confirm them, Godolphin in his Rejieriorium Canoni- cum (200) adopts as applicable to a benefice with cure by our common law the definition of it made by Decarenus de Ben. L. ii. c. 4, " Res ecclefiajTica, qua facerdoti vel cJerico ebfacrum *' rnini/lerium uienda in perpctmim concedatur. {Res) becaufe ** it is not the miniftry itfelf or the office, but rather the profit ** thence arifing that is the benefice : {^ecchfiajlica') becaule " fuch profit is dedicated to God and his church ; {facerdo'iy " Sec.) becaufe where a thing ecclefiaftical is granted to lay- *' men, it is not properly fald to be a benefice in this fenfe ; *' [oh Jacrtim miiitjlcrhnn) becaufe as dedicated to God, they *' are for the ufe of i^iich as wait on his altar ; {utenda) be- " caufe they have ratlicr the ufufruit thereof than any fee or <* inheritance therein ; [in perpctuum) becmifc they are an- " nexed to his cliurch for ever." I pre- AND ANNUITIES. render the act done voidable only, whilfl others declare it abfolutely void : fome again avoid the contract, I prefumc neither to juftify nor cenfure the poh'cy of the common law of the country in granting many exemptions and privileges to ecclefiaftical perfons and paiTcflions : what- ever immunities the clergy ever enjoyed, their title was the grant permiflion or fufTerance of the civil tnngi/Irate, who alom can grant them, and we are now inveftigating whether a particular fhare of thefe be ftill referved and faved unto, or withdrawn from the clergy. We learn from Roger Hoveden ( Annal. pars ii. fo. 342.) that William the Conqueror in the fourth year of his reign reviewed the ancient lawsof theEnglifh and Danes and with the help of his barons, governors of pro- vinces and twelve experienced men cut of every fhire feledled thofe, which appeared molt proper and eligible for the na- tion ; and it is to be prefumed, tlint the laws c/e chricis et pof' fejponibus eorum were a mere revival and ratilication of the old laws of the land, by which neither the perfons of clergymen nor their goods could be arrefted, molelted or made to pay tribute. And by tlie fourth of thefe lawst/i? univerfis tenenlihus de tccle- fd, every fuch tenant was exempted from pleading out of the fpiritual court, extra curiam ecchfiajllcam coaUus 7ion phcitahit. In IValwyn s.Auberty it is affumed that the Sheriff cannot meddle with the profits of the glebe ; but the Bifliop doth it by a fequcftration to him directed. Sequejlrations by the Or- dinary are certainly of very ancient date ; but 1 cannot trace the origin of this conveifion of the Bifhop into a Sheriff to make returns upon writs iffuirig out of the temporal courts, for the dired and immediate puipofc of counterading and de- feating the very foundations of all the immunities and privi- leges allowed by the law to the perfons and eilates of the clergy : all of which clearly tend to render the profits of the livings unalienable from the purpofcs, to which they were X 3 appro. JO9 310 A TREATISE ON USURY contracl, and others the fecurities ; as we have already feen in the ftatutes againfl Ufury. The I -th appropriated by the law. In this fpirit by the 14th chapter of Magna Charta was it provided, that " no man of tlie " church flioiild be amerced after the qirantity of his fpiritiial '' benefice but after his lay tenement, and after the quantity of *' his offence." And this obvioufly was, becaufe the amer- ciament could not be levied upon his fpiritual benefice : ftrange therefore is it, that this fame law fhould permit a debt of the churchman to be levied for the benefit of a private cre- ditor off that fpiritual benefice, which it exempts from an amerciament, which is a debt of higher nature as being due to the crown or it's grantee. The earlicll and mod authentic writers, that fpeak of thefc feqtiejlratioris are John of Athon Linwood and the other com- mentators upon the provincial conftitutions: the circum- flances, under which they ftate them to be admiffable appear almoft incompatible with their legality upon zjieri facias at the fuit of a private creditor of the incumbent. In the Glofs upon the Conflitution of Archbifliop Stratford de fequejlrationt fojfejfwii'is et fniLluum it is faid, that regularly fpeaking all fe- queftrations are prohibited, regularlter omnis fequejlrat'io ejl pro- h'lbita. (p. ic6. Oxf. edit.) And upon the before-mentioned Conflitution of Archbifhop Langton, ik rebus ecclejia non alie- natidis, we find (p. 149.) " That prohibition to alienate the *' pofTeffions or profits of the church flriftly fpeaking, includes •' the prohibition of every aft, particularly that, by which the ** property is transferred : but fpeaking more largel)' he fecms ♦' to alienate, who fuffcrsthe thing to be occupied by another, ** and who lofes his right by not making ufe of it." In the Conflitution of Othobon (Tit. 15. p. no.) this prohibition to fcqueflrate is moft formally enjoined Sequrjirat tones fruc' tuum AND ANNUITIES. 311 1 3th of Elizabeth declares all chargings of bene- part ii. fices utlerly vg'uI. Now in what confifls this * ^"^^- "; charging, iuum ct proventtium Inipfidcrnm eccJcfiapucoru7n a prccJa'is fieri penilhs probibcmus, quod ct leges et carioncs intsrdicunf, nlfi cafus Jpec'u'.lcs cmcrgant^ in qvibiis fequefirationes cert^e confuetiidines ct jura permillunl. The reafons I find in Linwood for feque- ften'ng, according' to tliefe confutiiidhies et jura are ; when the living is vacant and whilft it is in controverfy ; and for the re- pairs of the houfes and chancels, which the incumbent is bound- tn to keep in repair. All which are cmpliatically grounded in the original caufe and nature of the benefice, which is to en- able the Ordinary to provide a proper perfon to officiate during the vacancy and to keep up the church and buildings in proper repair ; the fruits of the living being " in condruc- " tion (»f law, as it were tacitly hypothecated by a certain *' kind of privilege for fuch indemnity," (God. of Dilapida- tion 17J.) Burn fays in title S:queJlration, (2 Vol. 329.) " Sometimes a *' henejicc is kept under feqiiejlration upon the King's writ to the *' Bijhop to Jaiisfy the debts of thcincuvihcnt.'" But how dif- ferently fpoke the commentator upon the lafl-mcntioncd con- Ilitution ofOthobon ? MuItof(,riius iicc ipfa hcncficia fro cliquo dihito pccuniario pojjunt fuhjici inter di^o. The difierent applica- tions directed by different llatutes to be made of the fruits of vacant livings wn^tr fequcjlration all afiord theftrongeft argu- ment againll their inalienability or transfer to other ufes. Tlie further we go back, the more evidence arifes againll the liability of fpiritnal benefices to the claims of creditors. We have already fhevvn feveral claims, to which they are liable by- common law : to thefe I will add one quotation from 2 Mod. in JValwyn v. Auberry. *' The reiSlor is to repair the chancel <« becaufe of the profit of the ghbc, which is therefore onus <' reals impojitum r^lus et perfo?iis : and of that opinion was X 4. *' Joannes 312 A TREATISE ON USURY PART II. charging, but In the deed hiflrument or af- CHAP. II. furance, by which the charge is made, or in other ** Joannes de yltlyn (meant evidently for Atbona by miftaking *' the reporter's abbievi'atiun of ylih) who wrote lOO year? *' before Linwood, where in fol. 56 he faiih, that if the chan- •* eel ivcre cut cf repair, ii offtflcd the glebe.'* John de Athona a canon of Lincoln flourifhcd about the year 1290 and Linwood died in 1446. The awarding of a writ to the Eifhop to kvy ey.ecution (^e bonis ecclefiajlicis of a debtor has always appeared tome unaccountable, inasmuch as it autho- rifes dijequcf.ration for a purpofe, which the common law feems not to allow of : for it appears that by common law the Ordi- nary had no power of fcqueftering at difcrelion, or right to appropriate the goods fequeftered to his own benefit or divert them from their original deltination. I need not repeat the 13th of Eliz. c. xx, which after di- redVmg, that in cafe the incumbent fhould grant an illegal leafe the Ordinary fhould diftribute the profits of one year of the be- nefice amongll the poor of the parilh, declares that all char- gings of benefices with care fliall be utterly void. This was fo far from introducing any alteration in the old law, that nothing could more emphatically confirm the before-cited con- Ititution of Stephen Langton, upon which the commentator fays, (p. 149.) lihi apparet, quod talis alienatio faBa eontra ju- ris prohibitioncm non tenet ^ ivimo ejl ip Jo jure nulla. The 14th Eliz. c. xi. which gave continuance to this a£l of the 13th and repealed fome words of it, which imiported a right of granting leafes in rcverfion, explains in part the word char- g'lngs by declaring, that the leafes bonds promifes and cove;- nants of and concerning benefices to be made by curates ihall be of no other force validity or continuance, than If they were made by the incumbent himftlf ; and this would not hav^ been enafttd, unlcfs the Leginature had prefymt^, that iliey already AND ANNUITIES. 313 other words, by which the benefice might inde- part 11. pendently of this flatute have been affected? ^^^;^' already had declared all fuch bonds promifcs and covennnts of the incumbents thcmfelves utterly void. The iSth of EHz. c. xl. regulates the manner and determines the circiimftanccs under which the Ordinary is to grant the fcqueflration of fuch benefices as (hall be demifed contrary to the 13th of Eliz. c.xx. and particularly enafts, that " tlicy to whom fuch fe- ** qucftration fhall be committed fliall ji'.flly and truly employ " and beftow the faid profits or the true and juft value thereof, *' without fraud or guile, to fuch njes as hy the Jaidjlatate is *' hmUiei and appointed,^' under pain of double iorrciturc to be recovered by the poor of the parifh in the ecclefiaflical court. The lad Ac!'!, which I find affcfts the poir.t is 39 Eliz. c. ix. which gives continuance not only to the faid Aft 13 Eliz. c. XX. but to all explanations additions and alte- rations thereof then in force : " with this further addition; *' ih^t all judgments for the intent to have or enjoy any leafe *' contrary to the faid ftatutes, or any of them fliall be deemed '* void in fuch fort as bonds and covenants are appointed to '* be void which are made for that purpofe." Thefe A6I3 of Elizabeth like the firfl claufe of Mdgna Charta are legiflative acknowledgments and ratifications of the rights privileges and immunities, which the clergy enjoyed by common law. Seeing then how exprefsly the benefices and livings of clergymen were by common law exempted from alienation and charges, being unable to find any llatutes, that have altered this law, and being convinced that ecclefi- aflical falaries flipends and benefices are not affignable cither at law or in equity, I was induced to hazard thefe obferva- tions upon the apparent incongruity of tiicfe j\qurf,rations at the fuit of creditors, with the general rules and principles that govern ecclefiailical benefices and the temporalities of bi- shops. All 314 A TREATISE ON USURY PART II. All cbargings of benefices can then mean nothing ; elfe, than the acts or deeds of thofe, who thereby charge or attempt to charge the benefices ; and the A6t declares them utterly 'void. The word charging here is a collective and ver)'' extenfive term taking in the whole and every part of that afl'urance, which might olherwife have fubjefled the benefice to the Annuity. And it is now gene- rally admitted, that ijoherc there are fever al deeds Whether all fecuvinz the fame Annuities, they are to be confidereci the deeds -^ ^ -^ /r t n_ fecuring as conftitiiting only one afjurance \ I mull there- Toid, be- fore conclude ; that every deed inftrument or caufe one is ^ . • t . • , • ., $^ anurance given with a view either primarily or collaterally of fecuring an Annuity by an incum- bent out of his living is as to fuch living by the common and flatute law utterly void. And here 1 may app'y the faying of Lord Loughborough in Duke of Bolton v. Williains ". " The Annuities '' being * Hodges V. Money and Bailry, 4 Term Rep. 500. — David- Jon V, Foley, 2 H. Black. 12. 2 Duke of Bolton v. Williams et al. 4 Bro. C. C. 210. 2 Vez. jun. 154. Lord Kenyon however in a later caCe of Hart V. Lovelace (6 Term Rep, 476.) faid, " I am not pre- •' pared to fay whether or not all the inArumenls given to fe- " cure an Annuity muft be let afide, merely becauie one only *« is not properly regillered, The cafes on this fubjecl are •' not reccncileable : but in the lateft of them Lord Lough- ♦' borough, who drew the Annuity Ad, decided in the Court *' of Chancery, that if any one of the deeds ccnftituting the *• alTuunce for the Annuity were not properly enrolled, all the •' indruraents AND ANNUITIES. 315 *' hi fig void, the Annuitants cannot recover. All part ir. '' the iujlniments are void.'' ^*'"^/.'_!!' As few Annuities have of late years been granted but under the fecurity of a judgment, and fmce the pailing of the Annuity AQi cafes upon Annuities come much more frequently be- fore the courts, than heretofore, and moftly for the direct purpofe of fitting them afide, 1 fhall referve the difcuflion of the nature of the reme- dies and redrcfs which the grantees have in law and equity to the Lafl: Chapter, which will confifl of a review of the determinations of the Courts upon the Act. ** uiftriiments were void." This however having been faid im- mediately of the efFeft of a claufe in the Annuity A6t will be more properly confidercd in the Laft Chapter. C H A P. 31^ A TREATISE ON USURY CHAP. III. OF THE ANNUITY ACT. CONTENTS. Introdudton of the firjt Bill to Varliamcni ly Mr. Wedderhiirne I'j'j'j — It^s Nature and Objects more general than the prefent Acl — Progrefi of the Bill — Dhifion of the Plan — Firji Bill dropped — Nezu Bill brought in — Commitiee appointed to confider and report upon the Laics concerning Vfury — Their Report and another Bill brought in upon it to regulate Annuities for Lives — // icent only to a Committee and there dropped — No- toriety of the Trarfadion a principal Objdd of the Act — Nature and Equity of the Ad — Of the Vrcamhle of the Act — Of the firft Sedion of the Ad — Difference beizueen RegiJIery and InrolU nicnt of Deedi — Great Caution in the Legifla- Pure to render the Trarfadion notorious — Xhe particular Ohjeds of the Ad — Of the Corftdera^ tion of gra7iting the Annuity and whether the La-zu Espences and Premium make pert of it — Of fccret TrufiS in Annuities — Of the fccond Sedion cf the Ad— -Of the third Sedion — Of the ■ 4 Meaning AND ANNUITIES. 317 Meaning of r/jj Confideration being in Money only — Offpecifying the Names of Parties and ihe Modes of Pay?ne:it and to whom in the ori- ginal Deeds — Of the fourth Sedion which is of a complex Nature — Fifth Section of the Acl-^ Sixth Sedion — Of Contrads being avoided — Seventh Section — Eighth and Laft Sedion — Of the Exceptions — The Exceptions of Annidties granted by Tenant in Tail and in Fee-fimple in-- t reduced by SoUicitor General: not to be eX" tended heyond the Jlrid JFords of the Ad. ^ HE views and motives of the Legiilature in interfering and attempting to put a check upon the pernicious praftice of granting Annuities for caufeoftLe the Life of the grantor were highly commend- [)',t'b?ou!$iT able : and the gratitude of the public to thofe, who took an active part in fo defirable an un- dertaking cannot be too loud or lively. It was impofTible after the Titian glow, in which Mr. Erfkine had fo recently portrayed the ravages and devaftation of that three-headed fiend Ufury Gaming and Anjiidtiesy that the Legiflature fhould not take the alarm ; and thofe members of it, fliould not come forth mod forward, whofe profef- fional fituation and habits afforded them experi- mental knowledge oftheeyil. Asfevvflatutes ever found a place in our code, upon which fo many decifions of the courts have been made in io (hort before Par- lumeiU. 3iS A TREATISE ON USURY PART II. fhort a period of time, as upon this Acl, it muft ^^''^r ."- ^^ inferred, that in few Ads are fo many indivi- duals ferioufly concerned ; and confequently no fpecies of information, which relates to the paflT- ing of the Aft diredly or indirectly, can be in- diiferent to ihofe, whom the fubjefl of it in any manner afl'ects. jirftBiu On the 26th of February 1777 the prefent bySoiiic'itor Chancellor, then Mr. Wedderburne Sollicitor- tj~j^,^' General, prefcnted to the Houfe of Commons a bill, io rejlra'ui the raifing of juoncy by fale of An- nuities for the Life of the grantor. As there has been almoft an utter impoffibility of reconciling feveral determinations of the courts upon the effeds and tendency of fome of the claufes in this i'vct, and the interpretation of a ftatute may often be facilitated by tracing the progrefs of the various alterations amendments and additions, which are made to the firil form and fliape, in which it was brought into the Houfe, I fhall for the fatisfaclion of my readers prefent to them a draught of this firil original bill brought in by the then Sollicitor General ', with the different claufes alterations and amendments, that it re- ceived in its palTage through the lioufes. We may perceive by the title given to this firfl bill, it's preamble and the different claufes afterwards added to it, that the intentions and views of the » Vid. Appendix, No. XX. 6 two AND ANNUITIES. 319 two Houfes In paffing It were more general and extenfive for reprefling the deftructive traffic of Annuities, than the Acl, which now ftands upon our parliamentary records. I can no where find any account of the debates upon this bill in any of it's ftages. It feems to have travelled through both Houfes without any oppofitlon : the addi- tional claufes, by whomever they were propofed, all tend to enforce and elTeftuate the end of the bill cxpreifed in it's preamble : which was to prevent the ruin of young men of fortune and obftru6l the loan of money at moderate Interefl: to perfons in trade or for other laudable pur- pofes. For who will lend money at five per cent, that can legally make three times that in- terefl of it without rifli or hazard ? It appears from the Journals of the Houfe of iVo^refscf Commons, that this original bill, which had re- through th« ceived feveral though not important amendments in the Houfe of Lords was on the 27th of March ordered to be printed with the amendments. From this time nearly a month Intervened be- fore any thing more was done In the bufmefs, during which time it is prefumed', the members, who * It was my v,-i(h to have favoured the public with a more cxaft and authentic account of the pafiiug of the Annuitj' Aft : but the application I made to the original fource of information for tliis purpofe having been rejeded, I hope I fliall CHAP.IM. Pivifion of 320 A TREATISE ON USURY PART II. who took the lead in it, fo far altered their fchem^, as to divide their fyftem into two branches, and to commit their management to different per- fons. Mr. Sollicitor General retained the con- ti'^pi^a. dufting of the original Annuity Bill, and Mr, Bacon took upon himfelf the charge of pre- paring and bringing forward the fecond bill, which appears to have been an emanation from and extenfion of the original plan for checking the evil fo feverely felt and fo much then com- plained of. Thefirft Accordingly on the 25th of the enfuing April uroppe . .^ ^^^^ ordered by the Commons, that the amend- ments made by the Lords to the bill fliould be taken into confideration on that day three months. And on the fame day they ordered in Anev.-biu a bill for regljlering the grants of Life Annuities iougu in. ^f^dj-Qj' f})Q better protect io7i of infants againft fucb grants. Mr. Sollicitor General, Mr. Ellis, Sir Grey Cooper, Mr. Popham, INIr. Cornwall and Mr. Graves were deputed to prepare and bring it forward. This new bill, which was the exact draught of the prefent (latute was brought in accordingly by the Sollicitor General, &:c. The introduction of this new bill was but a part of the new planned fyflem for overthrowing this fliall ftaTid cxcjilcd before the public for not baving <^iven a more fatisfatlory and detailed report of the different bills con- cerning the fubjeft. deftruclive AND ANNUITIES. 321 deftrudive hydra, for on the fame day the Houfe part ii. ordered, that a committee lliould be appointed ^"^'^;^* to take into confideration and report upon the committee Laws in being againft Ufury and the prefent " "'^* pradice of purchafmg Annuities for the life of the grantor. This committee was appointed to ^j^ .^ confifl of Mr. SoUicitor General, Mr. Wiikes, p"":"'!,^ ' ' thud bill to kc. A very inftruclive and intereflins; report ' reguiateAn- ■' 01 nuities (or was made to the Houfe, upon which they ordered ii^esbrow-ht ' ■'in upon It. a bill to regulate Annuities for lives to be prepared by Mr. Bacon Mr. SoUicitor General Mr. Pop- ham Mr. Newnham Mr. Ord Mr. Jackfon Mr. Macdonel and the Lord Advocate for Scotland ; it * was prefented by Mr. Bacon, read a firft and fecond time, went to a committee and there dropped j for what reafon'or at whofe fuggeilion or upon what grounds, I never could certainly learn ^ It appears, that this bill of Mr. B.icon v/as Mr. Bacon's but a part of Mr. SoUicitor General's original plpto'tivir. plan : the grcateft part of ihe preamble 13 bor- cliiiera'i's. » Appendix, No. XXr. ^ Appendix, No. XXI. 5 The anonymous author of RefltHions on Ufury , (p. 25.) has afTured us, that " it was dropped on the fiig'geftion, tliac *• the Court of Chancery, that augull and refpcftiiblc guardian *' of the oppreflcd, inftluitedto fiiptrfede the chicine of Pctty- ** foggers and the quibbles and evafions of the iviiown fpirit^jf " ihe Law, was competent to give relief iii all cafes of Uiury *' and opprefilon." Y rowed 322 A rtEATISE ON USURY rowed verbatim from the firfl bill : and the claufe for redemption is tranfplanted from one to the other. If then the prefent Annuity Act be lefs eflicient in checking or preventing Ufury, than fome might expect or defire, it is to be re- membered, that the whole of the original de- fign has not been carried into effe£t : and thofe, who undertake the execution of a part only of a plan cannot be looked up to for any refponfibi- iity either for the total or partial failure, of that part of it, which was committed to others. This is one out of numberlefs inltances, in which we are taught to trufl as little as pofTible to the whimfical and precarious turns of bills in par- liament, and never to multiply A6ts upon the fame fubje^;t. 1 cannot however fubfcribe to the aifertion of the author of the Refleclions on Ufury ^ that ' " inflead of an A6t to prevent *' Ufary-j that, which fupplanted Mr. Wedder- " burne's original defign, tends to encourage it, *' in that it lays open the borrower's circum- " fiances, places" every Annuity he has granted " on public record, and thereby enables "the " purchafer to make his bargain on furer " grounds, than he could have done before " that Act exifted." By reference to the origi- nal draught of Mr. Wedderburne*s bill in the Appendix, it will appear by the very firft claufe ^ » Reflea. 7. of Al^D ANNUITIES. 3-23 o^ it, that the inrollment of the fecurity m Chan- cery was the moft prominent feature of his ori- ginal defign. And it cannot furely be contended, but that whatever good has arifen from the Adt, is attributable to the notoriety, which by it is given to the tranfiiftion : and the preamble of the Ad itfelf allege?, that the pcr?i'icious traffic is much promoted hj thefccrccy^ %vith zvbichfuch tranf- adions are conduced. iMr. Hunt has told us, that the Annuity Ad ^ view of the ^ Ad. 17 Geo. III. c. 16. was made " " to throw fome " check upon improvident tranfaclions of this " kind, which are ufually carried on with great " privacy and to provide againfl the fraud and *' circumvention of thofe, who are always too " ready to take advantage of the neceflities of " dlftreifed perfons defirous of taking up money '' upon Annuities.'* The bufmefs of this Chap- ter will be to make fuch comments obferyations and reflexions upon the Acl, as have not been called forth from the Courts in the dii»'c:rent dc- cifions, they have made on the cafes brought be- fore them upon the Annuity Aft. , 1 he title of the Acl, for regijieri77g the grants ' V;je the Aa in Appendix, No. XXII. - CoUcdb'on of Cafes on the Atiiuiity Atl with an epitome of the piafi-ice relating:; to the cnroUment of memorials by Wilh'am Hunt, Efq. of Lincoln's Inn, barrifter-at-law, zd edit. 1796. Introdufiion, p. 4. Y2 cf 324 A TREATISE ON USURY PART II. of Life Annuities and for the better proieclioJi of CHAP 111. Infants againji fuch grants clearly (hews, that the The preicnt Lcgiflatuie had narrowed it's views and inten- hti narrow. , ^ , . . , -. ed more tions in pafllng this y\cl much within the fcope Bill. of their original and general defign of rejiraming the ^^fi^g of money by the file of /hinuities for the life of the gratitor^ which was the title of the firfl bill, intending evidently to efteftaate this gene- ral reflraint by the bill, which they then had it in contemplation to bring forward upon the grounds of the affinity and analogy, which the fales of thefe Annuities bore to ufurious tranfac- tions in general. As hovyever the intended bill ^ . , never palled into a law, we are to confider the Equity of ^ ' ihc Ad. prefent A:l upon it's own bafis only, and al- though the title have been fo narrowed, yet by the words of the preamble, the fplrit and equity of the Act appear to be almoff a^ general and ex- tenfive as if the LeglHature had proceeded in this hdi^ upon their original and undivided fyifeni of rejlral*lng the raifing of money by the file of Life Annuities, p eambic of '^^'^ words, ivhcreos the pernicious pradice of - the Ait. raifing money by the f ale of Life Annuities hath of late years greatly encreafed affume what the pre- amble of the firft intended bill fpecified more in detail, by introducing the epithet pcrniciousf inftead of cxprc;Ting»thc manner, by which the pra:lice became fo j " v.hereby not only many '• perfons AND ANNUITIES. 325 « perfons having anticipated their income are re- part ii. " duced to early ruin, but the fair loan of money J__VJ ^' at moderate intsreft to perfons engaged in the " various purfuits of ufeful induftryis and muft: " be greatly obHirucled." As therefore this Ad is bottomed upon the fame principle, as that bill, which was intended to rcfirain the raifing of money by the falc of fiich Annuities generally, it is evident, that it ought to be fo interpreted on all occafions as to reprefs as much as poflible that practice, which it fo emphatically terms perni- cious. I fliall content myfelf with fome few ge- neral rules of conflruing statutes, which appear mod peculiarly applicable to the Ad under our prefent confideration. In the cafe of Vvillion v. ^^,^5 fg,. Berkeley ' it was faid by Brown J. that '* the in- '^^^"'^ *' tent of the Acl is always to be regarded, and " to fuch purpofe only ought the words to be " conflrued/' And In Straclling v. Morgan - Chief Baron Saunders faid *'■ the reafon of the *' Judges Interpretation of an Acl has always " been the intent of the makers of the Act, " which they colled fometimfs from the con- *' fideration of the caufe and nccefllty of making " the Ad; fometimes from the words of other " parts of the Ad and fometimes from fort.ign " circumftances." It was in order to bring the ' riowceii, 23 I. - Plowde:ij 20j. Y T inter- A TREATISE ON USURY interpretation of this ftatute more immediately under thefe rules, that 1 have fubmitted to my reader the general conduct of the makers of the AQ: not only immediately as to the wording of the A£t itfelf, but generally as to the fubject of it : and this I thought, could not be done with more effecl:, than by furnifhing him with the draught of the bills and report, contained in the Appendix. From thefe it manifeftly appears, that the makers of the Act were emphatically bent upon difcountenancing and reprcffing the pradice of dealing in Annuities, and that the enormous advantages, which the purchafers of thefe Annuities drew from their bargains even without hazard under aflurances were fo very faintly diftinguifhable from the ufurious profits on loans, that it was their intention to draw them under the fame punifhments. Of Tff frc The firfc feccion of this Ad comprizes the Aa.° " grand remedy propofed by it to dt^viate and do away the fecrecy of the tranfaction, and there- fore direrls a memorial of every deed bond or other affurance, whereby any Annuity for life or lives fhall be granted to be inrolled in Chancery within twenty days after their execution : which memorial is to contain the date^ the names of • the parties and of the attefting witneifes, the trafts (if any) the eflate granted and the confi- deration j ctherwife every fuch deed bond in- flrument AND ANNUITIES. 327 (Irument or other aflfurance fhall be null and part ir. void to all intents and purpofes. chap, m^ . Notoriety and notice are evidently the i^tfe«ot .' , . . rcgifteriiig grounds of this iniundtion. Now it has ever deeds and forms of in- appeared lingular to me, where it was intended roiinisut. fully to difclofe to the public the whole of a tranfaclion, which has pafled by deed, that a re- gijlcry^ which is but a partial memorandum or abftracl and entry of a deed fiiould be fubftitut- ed and preferred to a faithful tranfcript and copy of the whole deed, which is more properly called an inroUment of it. I have heretofore * taken an opportunity of noticing not only the imperfeclion, but alfo the pofitive mifchief of the memorials direded to be regiltered of deeds affecting lands in the counties of York and Middlefex. The memorials of fuch deeds are direded to contain the date, the parties, the par- cels and the fubfcribing witnefles. They fall fliort however of the memorials direfted by the Annuity Aft by the requifition of the latter to exprefs the nature of the eflate granted and the confideration of the grant. The provifibns of the Annuity Ad go even further, without re- quiring a complete inrollment of the deeds ver- Vid. ImpartialTlioiights upon the beneficial confcqucn- ces of inrolliiig all deeds wills and codicils afTeding lands tlirougliout England and Wales h;^ ih Author 1789, pp. 11. 70. et alibi pajfim, Y 4 bathn^ S^S A TREATISE ON USURY PART II. baiim, than any Inrolling Acts do, in as much, 5"'^J'' ^'!' as they require an abfoiute declaration of any private trull concerning the Ar.nuity, which may be created or referred to by the deed. It is impoflible, that human ingenuity and cau- tion fliould go further in providing againfl the fecrecy of the tranfadion, than the memo- NotoHeiy rial-s required to be regiflered by this A(ft : and obS'o/the by the title and preamble of the AcV, this ap- pears to be it's primary objecl:. It has been therefore in the true fpirit and equity of this Act, that fo many Annuities have been fet afide for defe<£t, in the memorials '. The cafes, which the Courts have actually decided upon fuch de- fective memorials will be the fubject of the next and Lafl: Chapter. 1 fliall therefore proceed to cpnfider fome general effects of this claufe, which do not appear to have come before the Courts ; - It might be here naturally expected that I fhould fay fomething upontiie tfchnical form nr.d manner of memoriah'z- jng tlitfe dfcds. i-)evcral pra'flical iiiitiii£lion3 and forms of tra^moriais are given by Mr. Hunt in bi& Collection of Annuity Cafes, chap. ii. 2d edit, from p. 262. to 282. As no fpecrfic form is approprir-.ttd to deeds or bonds f)r other affurances, by which Annuities may be fecured, and as the ftii£t conformity pr reference of the memorial to fuch deed bond or nffurance is ilie princip.'.l or chief objttl to be attendtd to in the fram- ing of the memorial, where there is no fixed form of deed, there can be no fi::cd form of m.emorializing it as is felf-evi- d^ut. If an c\a£t copy of the deeds were to be entered as is the AND ANNUITIES. 529 Courts ; premifing, that there is no other varla- part ii. tion in it from the firfl: claufe of the firfl in- ^'^^^'^^- "i- tended bill except in dropping the neceffity of exprefllng in the memorial the addltio7is as well as the names of the parties and fubfcribing vvit- neffes to the deeds. Nothing can be more obvious, than that the Thepartku- Intent and purview of the Act is to bring under the Ad. the eye of the Public by the memorial every cir- cumftance, that attended the negociation of the fale of the Annuity, in order that the Court may be furnifhed with evidence of the time and na- ture of the grant, the abilities of the grantor and grantee, and the full and exaft amount and ex- tent of the confideration or price of the An- nuity ; and alfo if there be any truft in any of the parties for others, which does not appear upon the fav:e of the deed. The direft viev/ of the framers of this Aft, under all the circum- the cafe of inrolling deeds, ftill this would not in fome cafes fatisfy the ftuute, which requires more to appear upon the face of the memorial, than what the legal purport of the deeds imports. The memorial therefore ought rather to be termed a ft itement of the tranfaftion, than a memorial or rc- g;ft:Ty of the deeds executed by the tranfacf^ing parties. For which rcafons 1 conceive, that no other rules or direcflions can with propriety be given for framing thcfe memorials, than a literal adherence to the requifitions of ihe /\6t, in wliatevcr form the deeds and t ran fa (^i ions, vvhieh the memorial ought Co ftt foith fully and truly may have afTumed. (lances 330 A TREATISE ON USURY fiances I have before mentioned of the original defign being divided, and one part of it going for- ward under the c'oramittee of Ufury, muft have been to fet afide every tranfaclion, in which a party felt himfelf aggrieved either frcm the ne- glect of attending to the requifitions of the Act, or from fome original defect in the contra£t or negociation. All which circumPiances the Le- giflature propofed to bring fully and explicitly before the Courts by means of the memorial, in order that none but fair and equitable tranfac- tions {hould receive their countenance and fup- port And as we have before feen, that an in- .choate negociation about a loan mayinfedt the fale of an Annuity with Ufury, that grofs inade- quacy of price may render it voidable, and the charging it upon military naval civil and eccle- fiadical revenues or ftipends may make it void, I think no circumftance trivial, that can by any conftruftion be brought within the widell meaning of the confideration of panting the An- nuity' Of the con- ji^^g confideration is to be taken in two lideration of the Annuity, points of vicw both as to the qwd and \S\t pro quo. It fulfills not the purpofe of the Act to flate merely what the purchafer of the Annuity paid upon the fale, but what the feller netted by the iranfadtion : for upon this latter chiefly depends the adequacy of the price : and there is 3 not AND ANNUITIES. 331 not a queftlon, but that the Ad was made to part 11. favour perfons aggrieved by hard bargains. ^"'*"^'^' There cannot then be paid by the vendor any fum of money under the agreement on account of the tranfadlion, which is nut a diminution pro tanio of the price he receives for the An- nuity : and if fo, it affeds the confideration of granting the Annuity, and fliould therefore it is prefumed be fpecified in the memorial, which is required . to fet forth the confideration of granting the fame. From the infrequency of ftatlnf^ in the me- wheth:rth£ . , expcnce and morial the expences and ths premium brokerage premium 1 r 1 r A make a part or procuration money upon the lale or an An- otthecon- nuity as parts of the confideration of granting the fame, I feel myfelf called upon to enter fomewhat Into the detail of my reafons for hazarding this prefumption, which may at firfl ftartle the ideas and opinions of many. As I am not to confider the tranfadion a Loan, I mufl treat it as the Sale of an Annuity. This like every other purchafe muft be preceded by an agreement between the vendor and vendee or their refnefllve attornies or agents. In this agreement or contrad, v\hich is prefumed to be entered into freely and with the full accord of the parties, are fettled the terms and condi- tions of the falc ; and whatever either of the contracting parties agrees with the other to pay evidently fideration. 332 A TREATISE ON USURY PART II. evidently makes a part of the confideratlon for ^"''' ! ^"' ^^'^"^ii^ff ^^^'^ Annuity or making the Sale. I take it to be immaierial to the queftion now under difcuffion, whether the agreement be written or unwritten, exprefs or implied. The ufual agreement in moft: fales of .Annuities for the lives of the grantors, is that the vendor fhall pay all die expences of the negociation, not only the brokerage or premium for procuring the money, but the law charges to the foUicitor or agent of the purchafer. Now if this be done under or b^y virtue of the agreement, it evi- dently affects the confideration of granting the Annuity and therefore ought to be fet forth in the memorial. For by how much the grantor pays to the follicitor or agent of the grantee for the tranfadion, by fo much he reduces the value price or confideration of the Annuity. 3t was faid in Murray v. Hardhige ' by ferjeants Hill and Walker : " The deeds were paid for *' by Hardinge. This flievws it was no purchafe, *' but a loan. The common ufage is, that vend- *' ors do 7Wt pay for the conveyance, but that '- borrowers do." I cite not this for the pur- pofe of eftablifiiing the inference, which they drev.- from it ; but to prove, that as the common ufage is, that the purchafer and not the feller » 2 Black. 862. I fliould asent. AND ANNUITIES. 333 fliould pay for the conveyance and other law part h. charges, the contrary practice muil arife out of chap. hi. a fpecial contraft or agreement to that effect. A agrees to purchafe an Annuity of jool. of oftheven. B for the life of B for 6ocl, and B agrees to fhl'iT: '"* pay all the expences of the tranfadion, which, 'jl'^'i^l^^ as is mofl frequently done, are previoully fettled with the agent of A at half a year's purchafe or 5cl. Now it is evident, that by the effect of this agreement B receives only 55ol- for the An- nuity, which he grants; and it is futile to pretend, that this is a matter foreign from A ; becaufe in tranfadions of this nature law-charges and expences mull necelTarily be incurred ; and they then only make ?io part of the' agreement, when each party pays his own expences. But wher- ever by agreement one party is to be at the ex- pence of the whole, it is evident, that thereby the grantee is enabled to add to the price, which he gives for the Annuity, as much as he faves from the non-payment of his agent's cofls. I pretend nor to fay, that if the grantor pay to the agent of the grantee more for his co!is and charges, than the grantee would without fuch agreement have been compellable to pay, that fuch excefs of payment beyond the fair and juft demand makes any part of the confideration between the parties, unlefs the grantee be privv to the extravagant agreement. Yet upon no pretence 334 A TREATISE ON USURY FART II. pretence whatfoevcr can it be fupported, tha^ CHAP- iiij f j^g payment of the jufl: charges of the grantee's agent by the grantor, makes no part of the con- tract or agreement and confequently of the con- fideration. By revcrfing the cafe, and fuppof- ing a fpecial agreement, under which the grantee pays the whole expence of the negociation, will it be pretended, that this would not alter the confideration in favour of the grantor ? If then it alter the confideration, it mud affect it, and that it cannot do but by adding on one fide and dinii- nifhing on the other : the exact quantum then of the confideration price or value of the Annuity cannot be afcertained nor truly fet forth without fpecifying the fum, which under and by virtue of the agreement one party pays to the agent of the other, when without fuch agreement each party would have been obliged to pay the charges of their refpective agents : and the al- teration of this agreement would have made an alteration in the terms or confideration of the bargain. Far be it from me to fuggeffc, that this fort of agreement for the payment of all the coits and charges of the tranfadion is unfair or fraudulent ; but it certainly makes that altera- tion in the confideration, without which it can- not be known how much the Annuity purchafed really coft ; for that is only meafured by the net produce of the faie, which can alone conflitute fuch AND ANNUITIES. 335 fuch hard and unconfcientlous bargains as the ftatute was intended to fet afide. Amongft the various cafes, which have arifen upon the extenfive operation of the numerous requifitions of this firfl cJaufe, and which will be noticed in the enfuing Chapter, I cannot help obferving, that a very frequent occurrence in this fpecies of tranfactions feems not to have come before the Courts with reference to the trufts. 1 readily admit, that a (Irid adherence to the latter would be a great hardfhip in many cafes upon the grantee ; but to this it may be replied, that the A6t was intended to afford the grantors opportunities of avoiding Annuities un- der which they were fuppofed to fuffer and be aggrieved, A diflrefled man wants to raife a fum of money by fa!e of Annuity and he either joins another perfon with him in the grant or pro- cures him under an indemnlcy to become the fole grantor ; or a man wiflilng to enfure twelve or thirteen per cent Interefl for a fum of money, but unwilling to have it known purchafes an Annuity in the name of another : In the firfb inft ance the whole of the purchafe money is re- ceived only in truft for the diflrefled grantor, in the 2d the Annuity is fecured in trull for the concealed grantee: it is very poffible that-thi.-? truft may be really kept from the knowledge of the 336 A TREATISE ON USURY PART II. the otlier contracting party ; and that the gran- ^"•'^''•"^' tec may be ignorant of it for twenty days after the execution of the deeds, fo that he could have no opportunity of declaring the trufl upon the memorial. The words of the A61 do not appear to refer only to fuch trufts as appear upon the face of the deeds, but emphatically to fuch as appear not, \\z..fecret trujis. How far there- fore the Legiflature meant to annull every An- nuity negociated under any fecret truft or con- fidence, that could not be difcovered or known to all the contrafting parties I do not pretend to decide : but there can be little doubt, but that if in a negociation, where the purcbafer has treated with the principal for the Annuity and demanding the fecurity of another, to whom he knows no part of the confideration is to be paid, there the truft is to be fo fpecified in the memorial, that it fhouid thereby appear to whofc benefit the confideration-money was really ap- plicable, and that the furety who joined without confideration was m fome fort onlv a truftee for the party, with whom he joined in the fecurity. Upon the like principle, fiiould I prefunie that tranfadtion would not be fairly fet forth in a memorial according to the intent of the ftatute, in which a fourth only of the purchafe-money having been paid t^ or for the benefit of one out of AND ANNUITIES. 337 bf two grantors, the memorial fliould ftate or in- fer the confideration to have been paid equally between them both. The fecond feclion of this Aft can require no- second fee- thnig more to be laici upon it, than the iirit ; as Ad, it merely goes to oblige a grantee of an An- nuity before the paflhig of the Ad to regiftet the fame fort of a memorial before he enforces his legal remedies, as a grantee fince the pafang of the Ad muil within twenty davs, in order to give validity to his fecurity. Under both fee- tions it is obfervable, that the fecurities are not merely voidable, but void By reference to the Appendix* it will appear^ that this claufe verba- tim as it (lands, was introduc d and added to the firfl: bill, that was afrerwards dropped. The third fedion of the Ad affeds the deeds, Third fee* by which the Annuity is intended to befecured : aS.° '^° and declares them abfolutely null and void, in cafe the confideration really and bo7id fide paid (which fhall be in money only) and alfo the names of the perfons, by whom and on whofe behalf it (hall be advanced, are not fet forth and defcribed in words at full length. The avoidance of the fecurities on account of thefe informalities in the deeds or affurances is a remedy, which the Annuitant can rarely take advantage of, as the deeds and aflliranccs are in ^ Appendix, No. XX I. Z the 338 A TREATISE ON USURY PARTH. tlie pofleffion of the adverfe party. As the firfl CHAP. HI. chule of the Acl direds in fa6t a declaration of frufl to be made by the memorial, fo this, on one fide at leaft, avoids any deed, upon which any truft remains to be declared ; for if it do not fet forth the real perfon, who purchafed the Annuity the deed is ipfo faBo void. Of the con- The words included in the aparenthefis {which nijneyohiy. Jhull bc til Tuoney only) are very far from being clear and explicit ; what meaning the Courts have annexed to them we fhall hereafter con- fider. The literal and grammatical fenfe of the words apparently import, that no other confide- ration for granting an Annuity befides money fhould be valid. For as the Acl was made to prevent and remedy fraud impofition and hard- fliip upon diftrelTed men, it is to be prefumed that the Legiflature undertook to avoid in the firft inflance a deed, whereof the confideration con- filled of goods or any thing elfe of precarious ideal or indefinite value j fo liable to be over- reached and impofed upon did they fuppofe thofe, who were by diftrefs driven to the melancholy necedity of raifmg money by means of Life An- nuities. That this was the intent and meaning of the framers of the A.ci: appears uncontrover- tible, when we find, that the infertion of thefe words, inftead of fome others, was the only alte- ration made in this claufe, from the correfpond- 3 i"S AND ANNUITIES. 339 ing ciaufe in the original bill ^ that was after- part ii. wards dropped. The alteration confifts in the ^hap.iii. fubftitution of the words which Jloall he in money only for the following words of the firit bill, and in cafe the fame or any -part thereof JJmll con- fifl in goods or any other thing than money ^ the na- ture quantify and value of fuch thing and things, Looking then to the intent of the Legillature to protect the grantor not only from fraud or im- pofition, but alfo from every degree of opprelTion or hardfhip it appears to me conclufive, that they made this alteration in favour of grantors, in or- der to fave them not only from having unfer- viceable or inconvenient goods or other things palmed upon them, but alfo to keep them from the trouble and expence of meafurements and appraizements, and above all to fecure them from fuits and litigations on account of fuch confi- derations, which are more fufceptible of impofi- tion and fraud, than money or cafti, the fterling and current value of which can be unknown to iione. If the fpirit of the Annuity A 61 and the ex- or the ef- ample of the different Courts did not call for fo fDedfymg""^ Very rigorous a conflrudion of every part of it, which tends to favour and relieve the grantor, I Ihould not perhaps have felt myfelf called upon to ftir even a doubt upon the efted of thefe » vid. Appendix, No. xxr. y Z a words names and pa\:nentsin the original deeds. 340 A TREATISE ON USURY words of the claufe, which require, that the name or names of the per/on or perjons, by whom and on '-jihcfe behalf, the faid confuieration »r any part thereof foal I be advanced^ fjall be J idly and truly fet forth and defcribed in zvords at length : and in cafe the famefoall not be filly and truly fet forth and defcribed, every juch deed injlrwnent or other ajjurnnee foall be nidi and void. I pretend not to anticipate or to invent difficulties : but it feems 4:onfonant wiih the letter and fpirit of this part of the claufe, that in cafe a bond were given for the payment of an Annuity, and in fuch bond neither the confideration paid for the Annuity were expreifed, or in cafe of the confideration being adually paid by a third perfon, it were not expreifed fo to have been paid by fuch third perfon for and on behalf of the real purchafer, the bond would be void, as would any other deed of grant made without flri61: attention to the re- quifites of this claufe. If then for want of fuch formality (or indeed for any other caufe) the Annuity Bond fhould be void, it follows of courfe, that the warrant of attorney to confefs judgment upon fuch bond and the judgment, if ever entered up upon .it would be vacated by the Court: for no valid flru£lure can be raifed upon an invalid foundation. But if the Aft go the length of requiring thefe peculiarities in the original fecurities, fo as to declare all deeds, 4 which AND ANNUITIES. 341 which want them uroalid and null ; a fortiori mufl part ii. fuch payments be Ipecified both as to the money chap.ui. paid, and the perfon by and on whofe behalf it is paid be exprefled in the memorial ; and this for a double reafon : the firit is that the memo- rial may fully and truly fet forth the whole tranf- adion, as it really pafled : the fecond is in order to enable the feller of the Annuity to avoid the fecurity for want of this formality and requifite, which he can alone learn from the memorial, in cafe duplicates be not executed of thefe grants, which is very feldom the cafe. The fourth feclion of the Act is of a coqiplex fourth fec- ■' _ -^ _ _ ^ tion of ths nature : it is in part a confirmation and in part ^a. a contradidion of the forcr^oing claufe. The foregoing or third feclion is diredtory of two things : the principal is, that the full confidera- tion and the mode of it's payment fliall be fpeci- fically fet forth upon the face of the fecurity : the fecondary or incidental thing is equally pofitive with the hrfL, viz. that the confideration fhall be in money only. Now if under any of thefe cir- cumftances, the fecurity be to all intents and pur- pofes null and void, it appears futile and nuga- tory to declare, that it fliall be lawful for the grantor to apply to the Court and for the Court to order fuch fecurity to be cancelled and the judgment vacated. Had the third fe(StIon de- clared the fecurity only voidalle and not void, Z 3 then 342 A TREATISE ON USURY PART ir. then indeed might there have been fome reafon ^"^r '1^' ^^^ g^v^"g diredtion how to avoid it. Contradic- Xhis fcclion fo far confirms the foregoinor, as it tionofthU . fort' ciaufc. directs and empowers the Court to order the fecurity to be cancelled and the judgment, if any have been entered, to be vacated, if the confide- ration be paid in goods or if any part of it be retained by the grantee on any pretence what- ever. Now thefe two conditions were fully provided againft by the third fedion, which di- rects the confideration to be in money only^ there- fore not in goods, and the confideration really advanced to be fully and truly fet forth in the deed ; therefore no part of it to be retained. And it fo far contradicts the third fection, ordering the Courts to cancel the deeds, in cafe the notes, in which the confideration is paid be not after- wards duly honoured, for this is prefuming, that if they be fo, the Annuity is valid : whereas it is evident, that a confideration paid in notes or draughts, is not paid in money ^ and the third fec- tion had already declared every deed inftrument or other aflurance null and void to all intents and purpofes, where the confideration was not paid in money only. By reference to the Appendix ' the reader will obferve, that this fourth fection of the Ad is an amended draught of the fecond claufe in- ^ Appendix, No. XXI. Claufe B. ferted AND ANNUITIES. 343 felted In the original bill, which was fly led a part ir. claufe/>r afcertaining the confideration^ for which ^,^^1^]^ an Annuity is granted : and he will remark, that by the Legiflator's omitting the words of the bill, if the goods are not of the value fet upon them, they fully and explicitly meant, as I have before obferved, that no goods whatfoever fliould be a valid confideration for granting an Annuity: and therefore in the foregoing fedtlon did they declare, that the confideration fhould be in money cnly. I Ihall have occafion to fay fomething more upon this fubjed: in the next Chapter. The fifth feclion of this A61 is no more than Fifth fec- ,a mere direftion to the clerks In office, in what order, In what manner and for what fees they ihall enroll the memorials, give copies and per- mit fearches. It is an exad copy of the fifth and correfponding claufe in the origii^ial bilL The claufe admits of no comment. The fixth fedion of this A'fr, although I find sixitftc- iio cafe Immediately decided upon It, is properly fpeaking the fecond material claufe of the kt\^ as by it the fecond part of the title of the Act is carried into effect : \\z. for the better pi-oic^ion of infants again/l fuch grants. For this purpofe it enafls, That every contrail for the purchafe of an Annuity with any perfon under the age of twenty-one years, fliall be and lemain utterly void, notwithftanding any attempt to confirm Z 4 the lion. 344 A TREATISE ON USURY Mr. Pow- ell's argu- ment againft the avoid- aiKc of the ContiaCt, PART ir. the fame, after fuch perfon fliall have attained CHAF.iii. tt^e j^gg of twenty-one years. And it then pro- ceeds to declare that any fpecles of negoclation with minors under the af^e of twenty-one years concerning an Annuity, whether it be to be fe- cured or paid during their nonage, or after they f|iall have attained the age of twenty-one years, fhall be deemed a niifdemeanor punifhable by fine imprifonment or other corporal puniflinient, as the Court fliall think fit to award. Mt. Powell ^ has entered into a verv elabo- rate argument to prove, that the Legiflature in this fixth claufe having altered it's phrafeology, from no longe^ adverting to the fecurities, which ^lone are mentioned or fpeclfied in the forego- ing claufes, but providing by the fixth feftion, that all coutrads for the purchafe of Annuities with infants fhall remain utterly void, and inca- pable of being confirmed by them after they at- tain the age of twenty-one years, has in fact and fubdance left the original contrad for Annuitiec with adults even after the fecurities may have been avoided by the ftatute, as valid and liable to be enforced, as if the Acl h?d not been made. The examination of this argument will be more prderly, when I take under confideration the de- terminations of the Court upon this part of the Al\. I iliall here merely remark, that the Act ■■ puCjntrads, i vui. 21. clearly AND ANNUITIES. 345 dearly meant to draw this broad diflincllon be- part ii. tvyeen negoci.. lions luitb ?mnors and ''^ith adults ^ chap-Iil which vvas to avoici thefe latter but only under certain circumflan.es contingencies and condi^ tions, and to create an utter impoflibility of the former becoming valid under any circumltance contingency or condition •wliatfoever. The general object of this lection made a part of the original bill, as appears by the feventh feflion of it : but from it's being fo much ftrengthened beyond a pecuniary forfeiture, by the avoidance of the contract and the difcre- tionary punifhment of the mifdeLiieanor, it ap- pears probable, that the alteration of this fedion gave rife to the alteration of the title of the ori- ginal bill to that of the prefent Ait, The feventh fedion of the Ad:, was copied from Seventh ^n introduced claufe in the original bill '. It fhews how tender and tutelary the Legiflature was of the interefl: of the grantor, v.-hom ihrough- cut it confidered as ac.ing undt.r durefs. It declares therefore, tha: the demand or rectipt of more than ics. per iool. by any follicitor fcri- vener or broker for procuration-money or bro- kerage Hiali be guilty of a miidemeanor and be punilhable by line and imprifonment at the dif- ^retion of the Court. And it provides, that the } Vi.l. AppendLs-, No. XXI. Claufe D. perfon fedii». 346 A TREATISE ON USURY r.vRT II. perfon paying fuch money fhall be deemed a ciiAP. iiL competent witnefs to prove the fame. The provifions of this feclion need no com- ment : they are ftridt and fimple and conflantly infringed with impunity. Eighth fee- The eighth and laji Jecilon of the Act confifls **°"* of a long firing of exceptions, which keep cer- tain cafes out of it. If we reflefl that this Ad pafTed for the di- rect purpofe of checking the pernicious pradice of raifmg money by the fale of Life Annuities, Three fird we fliall readily account for the three iirfl ex- fxceptions. . i • i r a ... ^ . ceptions, which are or Annuities given or lecurea by will, marriage-fettlement or for the advance- ment of a child : for here is no raifmg of money by the fale of Life Annuities ; any more than there Is in voluntary grants. E::ception The laft cxceptiou of Annuities under lol. is undeTi'cl'" not readily accounted for : for the exility of the unaccount- ^^^ rathcr befpeaks the poverty and diftrefs of the grantor : and by how much greater thefe are, by fo much more liable is he to be hardly dealt with and confequently the more proper object of the relief given by the Act. Thefe exceptions were comprifed in the original bill, as it was firfl brought in. m the ex- xhe followinf; exceptions were introduced ceptions in- *-^ trodiiccd by upon the fecond or third readinsc of the orijrinal theSoUici- f . torCeneiai. bill, and apparently upon very mature delibera- tion. AND ANNUITIES. 34y tion, as they appear in the hand-writing of the part ii. gentleman, who introduced the bill : viz. '■ " nor ^^^P-^^I- *' to any Annuity or Rent Charge fecured upon " lands of equal or greater annual value, whereof " the grantor was feifed in fee-iimple or in fee- " tail in polTeflion at the time of the grant, or " fecured by the aciual transfer of flock in any " of the public funds, the dividends whereof are '*' of equal or greater annual value, than the faid " Annuity : nor to any Annuity or Rent Charge " granted by any body corporate or under any " authority or truft created by Ad of Parlia- « ment." The view motive or principle which, I humbly Rcafonsfor prefume, direded thefe exceptions mud have dudion. arifen from the confideration of the grantors of any fuch Annuities pofl'efling ether means of raifmg money, than by fale of Life .Annuities, and confequently not being under the like necef- fity of fubmitting to hard bargains as thofe, whom the Ad more particularly meant to relieve. The general equity of this flatute evidently The tqwtj tends to enable thofe to refcind hard bargains, tute.'* who if the Ad had not been pafled, mufl: have continued for their lives to pine in mifery under the grinding preflure of their folly or misfor- tune. We fee how difpofed the Legiflature was to open a right of redemption or repurchafe to ^ Vid. Appendix, No. XXJ. Draught of the Eiil. every 348 A TREATISE ON U^URY every one fuffering under this devouring evil by infcrtinga claufe for that purpofe in the original bill, and engrafting it afterwards in another bill, which v^as in it's actual progrefs through the Houfe of Commons for regulating y^nnuities for Lives. Now although we be not authorifed to nrgue definitively from thofe bills, which the I.egifiature never completed, yet they are expla- jiatory of the fpirit and intention, in which they pafled the Ad upon the fame fubjeiSl, and warrant this inference, that wherever a grantor is preffed by a hard bargain of Annuity, he fhall not be precluded from tlie redrefs and benefit of the Statute, but by being ftridly within the terms of the exceptions. Thus for inflance I fhould pre- fume, that an Annuity granted by tenant for life with power of appointment or charging would not fo come within the exception of the Aft as to fuperfede the neceffity of regiftering a memorial of it, and deprive the grantor of any advantages, which might accrue to him under the provifions of the Acl, which evidently were intended to check the pernicious pradice of taking up money by the fale of Annuities for' life, and to relieve thofe, who had been driven to that baneful exigency. Inflances. have fre- quently fallen and particularly of late, within mine own experience, in vhich tenants for life with a power of appointment, tenants in tail an(i AND ANNUITIES. 349 and even in fee-finiple have not been able to part ii, raife money in their diftreffes, otherwile than by ?"'^^'' ' j the fale of Annuities for their own lives. Such is the furety and profit arifmg to the grantee from fuch negociations. Their powers to raife •money by other means, which in the moment of their wants they cannot procure, fecure to them no favour in their terms with the purchafer. A tenancy for life is to the vendee as good a fecu- rity for the Annuity, which he is about to pur- chafe, as a fee-fimple. Nor do I conceive a folid reafon, why a tenant in fee fuffering under as hard terms in his bargain, as if he had only a life eftate, fliould be precluded from the equity and advantages of an Ad intended for general benefit, merely becaufe he poilefied the power, though found not the opportunity of fupplying his wants by other means, than by fale of an Annuity for his own life. If the enjoyment of larger means than are oftheef- poflelTed by tenants for life of raifing money excepuons. were the real ground of introducing thefe excep- tions Into the bill, it is wonderful, that the ex- ceptions were not extended to all perfons inde- finitely, who poffelfed any fund real or perfonal, upon which they might fafely raife by fale mort- gage charge or otherwife, as much money as was adually received from the fale of the An- nuity. For in all fuch cafes, the fellers of the Annuities ^So A TREATISE ON USURY PART II. Annuities or the borrowers of the money, whicli CHAP.III. r , n • M r l • \ J are terms lubuantially lynonymou", bemg out of the fuppofed mifchicf , are within the fame equity. It is immaterial to the fubflance or principle of negociating and fecuring an An- nuity of locl. for the life of the grantor, whe- ther he be poUelTed of loool. per ann. from di- vidends in the funds, feifed in fee of land of the yearly value of loccl. and entitled alfo for his life to other landed property to the amount of I cool, per annum, whether hs charge it on his life eftate or on his fee-fimple or on the money in the funds. He v/ill procure no better termsr from the purchafer by making it iifuing out of one more than out of the other, nor will the pur- chafer himfelf acquire any better fecurity by the preference : and yet as the A61 is now worded, if he fecure the Annuity out of his life eflate; he will be entitled to all the equity and advan- tages of the Ad, if otherwife he will be pre- cluded from them. The more I refleft upon the nature reafon and effe£ls of thofe exceptions, the more thoroughly am I convinced, that they are not to be extended by any confl:ru6lion to other cafes, which are not ftridlly within the words of the A£t, although the grantors of the Annuity might to fome purpofes enjoy that dominion over their property, which jQiould be almoft equi- valent to a fee-tail or a feefimple in the lands. Such AND ANNUITIES. 351 Such would be the cafe of a tenant or tenants for life, with a feparate or joint power of ap- pointing, charging, &€. As this queftion has been in part confidered by the Court, I mufl re- ferve what further I have to offer upon thisfub- je£l to the next and Laft Chapter. CHAP; A TREATISE ON USURY CHAP. IV. OF THE DETERMINATIONS OF THE COURTS UPON THE ANNUITY ACT. CONTENTS. Of the Tyrannical Principle of giving Operation to A6ts of Parliament from ihefir/i Lay of the Sef- fion even before they we're framed — Several In- fiances of the Injujiice operated thereby- - This In^ jujlice put an End to by the 33 ^ iO. HI. — every Deed to he inr oiled by ivhich an Annuity is fe- cured — JVarrant of Attorney fuch an Affurance —The fudgnieni not fo — Of regijiering AJjtgn- ments — ^^ffp^cifying the Dates of the Deeds and the Names of V/itneJfes in the Memorial, and all the Tr lifts of the Deed — Inconfftency of the De- cifions upon all the Trufts being fct forth — Of the Conf deration of granting the Annuity — Of Bank- ers* Checks and fromiffory Notes — Ba?ik Notes taken as Cajlj — Of fpecifying the Mode of paying the Confider'ation — Of Jetting it forth faljely and the Confcquences of it — Of paying the Confidera- ton at different times — Of the Terms of the Con- trad AND ANNUITIES. 353 ira^ ?naki.ig a Part of the Confiderat'wn — Of the Law Charges ?naking a Part of the Conftderation "^Of the twenty Dap given by the Statute for regiftering — Difference of Opinion of the King's Bench and Common Pleas upon the Necejfity of inr oiling an AJftgnment — Of one Annuity^ being the Conftderation of another — Of the Difference between the firfl and the fourth Se6lion of the Ad — Of all the Deeds being void by the Nullity of one of them — Of fiating in the Deeds the Names of the Agents who pay the Confideration- Money — Of the fourth Section — Of retaining a. Part of the Conftderation — Of the Perfons who may apply to the Courts for Relief under the fourth Sedion — Of being barred by Length of Tifne and Laches of the Parties — Of the Court's Difcretion in entertaining Applications — Of the Difference in the Opinions of Lords Loughbo' rough and Kenyon upon the Limitation of Time— ^ Of the Province of the Courts — What CoUrts may entertain Applications under the Ad — Of the furifdidion of the Courts with or without Adions commenced — Whether Grantors who do not confefs "Judgments be precluded from the Be- ncfit of the Ad — The Courts ad upon the Cafes within the Statute according to their original Ju- rifdidion — Of the Contrad with Minors being avoided — Whether all Contrads be avoided i.vhere the Securities are null— Of the Piinijlj- A a ments 354 PART II. CHAP.IV. Of Ads of Parliament commence- ing their operation from tlie firft day of the Seillon. Cafe of Heimes. A TREATISE ON USURY mejits of Mlfdemcajiors under the Act — Of the Cafes excepted out of the Act. TpIE Annuity Acl is one of the many in- flances of the extreme injuftice of that mon- ftrous principle of referring by anticipation the operation and effecls of an A61 of Parlia- ment to the firfl day of the SefTion, where no particular day is appointed for it's commence- ment. The Seflion, in which the Annuity Act was pafled, commenced on the 31(1 of October 1776, and the royal affent was given to the bill on the 1 6th of May 1777 : during this period of nearly feven months, the Act operated retro- fpedively and ex fojl faclo upon all ihofe, who tranfafted any Annuity-negoclation during this period of enfnaring tyranny, as fcveral perfons were actually punifhed for negle(5ting to conform to conditions, of which they were even phyfi- cally difabled from acquiring any knowledge or receiving notice. In the cafe of Latlefs and Hohnes ' the Court of King's Bench determined, that for want of in- rolling a memorial according to the Annuity A6t within twenty days after the execution of the Annuity deeds, which bore date four months before the royal aifent was given to the bill, the fecuvities were declared void : as the rule of law * 4 Term !Rep. 660. fo AND ANNUITIES. 35j to long fettled ought not now to be fhaken, viz. part ir. that where no fpecific day is mentioned in an ^^^^p- ^^; A£t of Parliament, from which it is to take ef- jfe£l, it commences by legal relation from the firft day of the Seflion '. This rule was twice recognifed by the fame Court in two other cafes, Two other the fitft was in Hopkins v. Waller * and the next in Hall v. Whalley ^ Happily for Englifhmen, ' In this cafe much ftrefs was laid both by the Counfel and Court upon the cafe of the Attorney General v. Panter, which the Court obferved was founded on prior determinations. 6 Brown's Pari. Caf, 553. where a duty of 6d. in the pound upon the exportation of rice was kvied for rice exported be- fore the Aft impofing the duty had received the royal aflent, 'iviRexv. Thurjlon (i Lev. 91.) upon this rule a man was mads a murderer ex poft faBc, though it feems he was after- wards pardoned. Some few years ago Mr. Drummond the immediate defcendant of the late Vifcount Strathallan, who was killed at the battle of Culloden applied to the Houfc of Lords to be admitted to the honors of his father upon the ground of thfe defcent having been aftually caft upon the fon by the death of rhe father, before the Aft of Attainder was pafied againfl the father. But thfe Houfe of Lords held themfelves bounden by the rule fo formally eflablifijed and gave cffeft to this Aft of Attainder from the firft day of the Scffion, which in faft preceded the death of Lord Strathallan- There were quoted alfo 4 Inf. 25. Bro. Ab. Parliament, pL &6. Bro. Ab. Rtlaiiorj, pi. 43. l And. 295. Cro. Car. 424. Sir Robert IleriLy v. Junes. 1 Sid. 310. Rex v. Call. Comb, 413. and I Lord Raymond 370. * 4 Term Rep. 463. This cafe was decided in 1791 Mich. 3 This cafe is not reported though mentioned in a note on "the report of l.atkfs \, Holmes; it was determined on the fame rule in the abfence of Lord Kenyon 29 Geo. IIL A a 2 this 356 ' A TREATISE ON USURY this monflrous rule of injuflice was lately en- tombed in a Statute, which would have done honor to the happiell days of our political glory. 33Geo. III. By the 33d of his prefent Majefty (c. 13.) it is ^' *^' enabled, that the Clerk of the Parliament (hall indorfe on every A£l, which fhall pafs after the 8th of April 1793, immediately after the title of fuch Acl, the day, month and year, when the fame fhall have pafl'ed and fliall have received the roval affent, and fuch indorfement fhall be taken to be a part of fuch Acl and to be the date of it's commencement, where no other com- mencement fhall be therein provided. 1 hus ended the great and manifejl injujiice^ as this wife and neceffary Aft expreffes it, upon individuals. infcnJedor- Having ill the foregoing Chapter^one through Cha^ter.'^ the different fcdions of the Act, as they occur in their order, I fhall follow the fame fyflem in digefling the various determinations of the Courts upon the different parts of the A6t. It is not indeed my intent to give the reader a full report of each cafe, that has been decided upon the Statute, but to draw his attention to the conflruction of the different provifions of it, which have determined and fixed their fenfe meaning and effeft '. * The Public is much indebted to Mr. Hunt for a very ample Colled ion of Cafes on the Annuity Aft, not only of thofe reported by others, but alfo of feveral Manufcript Cafes never before publiflied, ■\Vhen AND ANNUITIES. 357 When we confider the complex and compre- part n, henfive nature of this firjl fection of the Adt, it naturally occurs, that more points upon the dif- ferent parts of this fe^lion have come before the Courts for their decifion, than upon all the other fections of the Aft colledively or feparately taken. It is in faft the fubdance of the whole Aft, excepting the fixth cJaufe, which relates to the contrafts with minors ; for all the other claufes are qualifications or modifications of or exceptions to this firfl feftion. I know not how to introduce witli more effeft Opinions of thefe legal and authentic conflruftions put upon ^l^J^o^' the Statute, than in the words of Lord Kenyon, Jendfn"7of before whom mod of the cafes have received ^^* ^^' their determination. \n Rumball \. Murray^ ^ his Lordfhip faid : " As the Annuity Aft is an " extremely remedial Law, the Courts ought to '' give effeft to every word of it, in order to *' meet the mifchiefs intended to be remedied." And again in Dann on clem of Dolman v. DoU man % his Lordfhip faid : " Many cafes have " been brought before the Court on the con- " ftraftion of this Aft of Parliament, which " have appeared to bear rather hard upon par- *' ticular individuals ; yet if they were fct in op- ^' pofition to the benefits, which the public have ' 3 Term Rep. ^98. * 6 Term Rep. 645. A fi 3 *' derived 35S A TREATISE ON USURY PART II. " derived from the A£l:, I believe that the b^- chap. IV. tc jance would be greatly in favour of the lat-! ^"^'"'"^ "ter." "Every deed There havc been numerous cafes decided, by an Annuity which it appears abfolutely neceffary, that every tl beb? ^^^^ bond inftrument or alfurance, by which aq rolled. Annuity is granted (or fecured) mufl be in- rolled, in fo much, that the omiflion to fet forth any one fuch deed, &c. in the memorial will be fatal. As in Hoqds. Burlton^^ Lord Commif: fioner Eyre faid : " It is manifeflly the objeft " of the A£t to comprehend all manner of in-: •?' flruments calculated to fecure the payment of " an Annuity. Though the language is, where- " by an Annuity fliall be granted, yet the con- *' ftruction ought to be, whereby it fhall in any " manner be fecured to be paid : and there- •* fore if the Court thinks this an inftrument, ?' whereby an Annuity is fecured to be paid, " however it has been granted, all thefe iniiru- " ments muft be within the Ad or there is an «' end of it." The fcrupulous attention of the Courts to this requlfition of the Aft cannot be more ftrongly rnanifefled, than in their fetting afide feveral Annuities becaufe their memorials did not fet forth the warrants of attorney to confefs judg- * a Vc7. jun. 34, Vid. alfo, 4 Bro. C. C. 124. ment AND ANNUITIES. 359 nient upon the bonds given for fecuring th.e An- part ir. nuities, although the bond and the judgment it- ^^^'^^ felf may have been mentioned in the memorial : for there is certainly much reafon in the argu- ment againft the neceffity of ftating the warrant of attorney in the memorial ; that being merely an authority for entering up the judgment, after which it is functus officio. The point however ^afes prov- was folemnly determined by the fving*s Bench cXy'^ofre. in Hopkins v. Waller' ; by the Common Pleas in ^''^"'"^ the c 'J warrant 01 David/on v. Lord Foley' ; and alfo by Lord »'^'"<^y' Thurlow in Chancery after feveral days argu- ment in Davidfo7i v. Lord Foley ^; where his Lordfliip faid, " he ihould not be juflified in de- " termining fo contrary to the opinion of a Court " of Law, which in the cafe of Hodges v. Money *' in lafl: Hillary Term (reported in 4 Terni *' Rep. 500) had only held, that where the con- " fideration was expreifed in the bond, it need " not be fo in the warrant of attorney, but mud '* betaken to have held that the ivarraiit of at- *' torney was an a/Jarance^ as otherwife, they *' would have contradicted the third feclion of " the Afl." Amidfl: the vafl: variety of points determined in. the complicated cafe of the Luke of Bolton \, * 4 Term Rep. 463. ^ 2 H. Black. 12. 3 3 Bio. Ch. Cnf. 598. A a 4 IVillianif 3$c PART II, CHAP. IV. Confirmed in Duke of BohoH ▼. JViliiami. Securities given by the fureties to be regiftered. A TREATISE ON USURY Williafns and others the necefTuy of comprizing the warrant of attorney in the memorial was one. For faid Lord Loughborough according to Mr. Vezey', "All the .different parts, the " bond, warrant of attorney, the bond from the " furety all make but one aflurjmce. The '* objed is, that the afiurance and all the " component parts, fh^H be fet forth." And according to Mr. Brown's report of this cafe ", " With refpecl to the other Annuity (Samfon's) " the memorial recites the Annuity only to be *' 42I. and it does not ftate all the fecurities, ** for with refpecl to the bond and warrant of '* attorney, as it does not ftate the dates, it is as " no niemorial." The dired inference there- fore is from this determination, that if the war- rant of attorney be not as fully ibted in the memorial as any other deed, the memorial will be defective, and confequently affedl ihe whole tranfadion. It is not only neceffary, that every deed exe« cuted by the immediate grantor of the Annuity ihould be mentioned in the memorial, but that every other deed or alTurance, though it be but a collateral fecurity given by a third perfon fliould be equally fet forth in the memorial : as * 2 Vez. jun. 154, a 4Bro. C. C- 31®. m AND ANNUITIES. 361 jn the cafe of Rojljer v. Hurdis * a bond entered part 11. into by fome fureties for better fecuring an An- chap.iv^ nulty, that had been prevloufly granted, though they had made the bond bear even date with the (deeds, was holden by the Court neceflary to be regiftered, for, faid they, " the contrary con- *' ilrudion would totally repeal th^ wife provi- " fions of that A<51 of Parliament, the objed of " which was to difclofe to the Public the whole ''' of the Annuity tranfadion, and all the parties *' to it. This was an inltrument to fecure the ^' payment of the Annuity, and it fhould have " been regiftered : in many cafes the deed of ^' the furety is the moft effeilive fecurity. If vi'e *' were to determine, that fuch an inftrument as '^ the one in queftion need not be regiftered, *' wherever fraud was intended, fome nominal *' perfpn would be brought forward as the olien- " fible party, and the real fecurity would becon- " cealed from the public eye." It fuffices not, that every deed, bond or aftu- tI'* «"- , ranee, by which an Annuity is eranted or fecu- i«'a"on "f ■^ . the deeds to red, fliould be fet forth in the memorial, but ^pp*^' "P"'' the memo- each ot them mult be fo mentioned in it, that by ^'^i- the memorial it fliall appear, that they have re- ference to one and the fame Annuity. There- fore in Saunders v. Hardinge\ Lord Kenyon, • 5 Term Rep. 67S. * 5 Term Rep. 12. after 36^ A TREATISE ON USURY PART 11. after exprelTing his reluctance to fct afide the CHA iMv. Annuity, becaufc it appeared to him a fair tranf- adion, added : " But we are to form a judg- *' ment on the pubHc document directed by the ♦' Legiflature; and as the Annuity fecured by the *' bond may from the manner, in which it is ** there rcgillered be different from the two fe- " yeral Annuities mentioned in the deed poll, this " lad judgment on the bond cannot be fup- " ported, &c. Had there been any words of " reference in the memorial of the bond, the ** bond might have been fupported ; but there " is nothing in the memorial to connect the one " with the other." Of rcgifter- The Court of King's Bench has determined, ment. " that xht judg?nent entered upon a bond for fecu- ring an Annuity needs not to be comprized in the memorial, although the bond and the war- rant muft neceffarily be fo. It was therefore faid per curiam, of a judgment in Sberfon v. Oxladc ^^ " This is not one of the affurances, which '* the Legiflature intended fhould be inrolled. *' The contraft for the Annuity was made by " giving the bond and warrant of attorney to *' enter up judgment. Thofe were the fecurities, '' on which the party relied : and the Acl is " complied with by regiftering all the fecurities " given by the parties^' However the Court * 4 Terra Rep. 824- added: AND ANNUITIES. 3^3 ^dded : *' If indeed the only fecurlty had been part h. " a judgment adually entered up, perhaps it ^'"•'^^- ^^'- *^ would have come within the provifions of the ^■' A£t.'* We are now concluded by this ex- prefs decifion. It appears however by what How far the , judgment is the Court added, that a judgment is of its nature ^n .irurance . , wiihin Oic fuch an aflur^nce, as may in certain cafes be Act. within the provifion of the A6t. Now if the want of other fecurities could render the regiftery of a judgment necieffary under the \d:, it could only produce tha effedl, becaufe the judgment was the aflurance, by which the Annuity was granted or fecured : but does the option or pow- er of the grantee to enter up the judgment at his own time alter the nature of the judgment and make it ceafe to be that fpecies of aflurance, which is out of the provifion of the A£l ? And is that a full ftatement of the tranfadion, which fup- preifes the principal remedy, to which the gran- tor may be fubjedcd, which is an execution upon the judgment ? Not only every deed, bond or other alfurance, ofrccift«r- by which an Annuity is originally granted or mLVof fecured muft be regiftered, as we have feen, but f",lZ\\m every deed of aflignment of a part of fuch ori- ginal Annuity muft be regiftered in like man- ner ; each fuch aflignment being in that refpe«5l confidered as a frefli grant ; although, where an Annuity properly regiftered is afligned over /;; iofo the whole. ,64 A TREATISE ON USURY ioto to another perfon, fuch deed of afTignment needs not to be regiftered under the A6t. The firft part of this obfervation is fettled by the cafe of the Duke of Bolton v. Williams and others, in which Mrs. Williams being entitled to an An- nuity of 300]. for her life, had afligned parts of it to Crefwell and Sampfon, and upon a bill filed by the Duke of Bolton to know, to whom the arrears of the Annuity were to be paid, there being difputes between the reprefentatives of the affignecs and Mrs. Williams, and objections hav- ing been taken to the affignments on account of their not being properly regiftered. Lord Thurlovt in May 1792 declared, that the deeds, under which the reprefentatives of the aflignees claimed were void for want of inrolment ; from which decree there was a petition for rehearing, and after feveral elaborate arguments Lord Loughborough premifmg ^ " that through the " courfe of thefe caufes having paid great atten* *' tion to the arguments, he had no doubt in his ** own mind, that the decree was right, and he : non curat mimna^ and that the fpirit of the Ad is not to T-^ alto- gether abandoned even for the letter. Jie Court of King's Bench rejefted as trivial three objec- tions made to a memorial of an Annuity under this A61, in the cafe of Ince v. Everard^ viz. 1 °. that the memoriil did not contain the nominal, Of the term J of the contraift maki;!g a part of tlie coDliJcra- tion. Clerical errors and nominal conlidera- tion of ici, not to be let fonh. ' Manufcript cafe in Hunt 2d edition 74, in R. R. Pafch. 35,tJeo. III. ''■ 6 Term Rep. 737. 3 6 Term Rep. 54J. confide- 3^4 A TREATISE ON USURY P^RTII. CHAP. IV. Of the law- charees be- coming 3 part of the confiiler*- tion. Fefirer y. Etat^i, a cafe upon the law- charges. consideration of los. ; 2^, that it did not fpecifyj that the Annuity was payable for the portion of time from the laft quarter day to the death of the Annuitant; and 3^, that it contained fome clerical errors in a name and in figures. Having in the foregoing Chapter hazarded a fuggeftion, that the payment of the law-charges and expences of the Annuity became a part of the contract, and therefore of the confideration and confequently that they ought to be fet forth in the memorial, it is now incumbent upon me to fhew how far the Courts have noticed or afforded grounds to maintain this opinion. I do not find, that the queflion ever came directly before the Court. The circumflance however has fo far come before them incidentally, as to enable us to colleft their general fenfe and opi- nion upon the point. The cafe oi Firmer v. Evans ' muft, if we con- fider it attentively be brought to bear upon this point : for although the principal queftion be- fore the Court were, whether Sl fcire facias were an aLiion within the meaning of the 2d feftion of the A61, which we fhall prefently examine, yet would it have been ufelefs to proceed to con- fider this queftion, unlefs the real confideration of granting the Annuity had not been fully fta- ted in the memorial : the fundamental ground * I Term Rep. 265. there-^ AND ANNUITIES. 385 therefore of the judgment in this cafe wa* the defefl in the memorial from its not dating fully and truly the confideration : and in what did that defed confift ? Namely, that the me- morial flated, that the plaintiff had received loool. as the confideration for granting the An^ nuity : whereas in fail, he only received 700I. in money 5 and a refpondcntia bond for 27 il. and there was a deduclioti of i(^\. for law charges. Now as the judgment of the Court prefuppofed a defeiflive memorial, which in fad they alfo judged of, we mud neceflarily conclude, that the Court found this memorial defective, as much from not fpecifying the mode of account- ing for the payment of that part of the confide- ration, which went to fatisfy the law charges, as of that, which made up the amount of the re- fpondcntia bond. From this decifion therefore it follows, that wherever the law charges make part of the confideration, they mud be fet forth in the memorial, and that they then make a part of the confideration when the grantee either re- tains the amount of his own agent's charges, or throws the payment of them upon the grantor. 1 he cafe of Kirkman v. Price ^ appears alfo Krhn.m conclufive, that the payment of the law charges makes a part of the contract or agreement and ^ I H. Black. 309. C c there- 3S6 A TREATISE ON USURY PART If, therefore becomes a part of the confideration ; ,, , lor 111 a motion to lliew caule why an Annuity Ihould not be i'et afide becaufe the memorial did not fully and truly let forth the payment of the confideration by dating generally, that the An- nuity was granted for the confideration of 1 6ol. when in fact 99I. 14s. 6d. had been previoufly lent to the defendant upon promiffory notes, which the plaintiff gave up at the time of exe- cuting the fecuriiies and allowing twelve guineas for the expences of the deeds, paid only the re- mainder of the confideration In money : and the Court made the rule abfolute ; holding clearly, that the particulars of the confideration v.'cre not fuffiriently fpecified. Yet the amount of the law charges, if not allowed, either did or mi^ht have made the difference of twelve guineas in the confideration. Bohonw. In Bolton V. JViUiarAs the fum of 2 cool, the ftrongcdfe whole confideration for an Annuity of 250I. on the law charges. granted by Mary Lhanctte Williams to Crejwdl for her Life out of a l^ent Charge of 300I, were thus dated in the memorial to have been paid, viz. 1 126I. yS. to Ardjoife, and 534I. to Dtfhoiwg^ by direction of Mary Charlotte PVilliams, and '^2,9^. 13s. to Mary Charlotte Williams, &c. making together the flun of 2oocl. which v\'ere paid in notes of the Bank of England : in like manner the ccnfideratlon of another Annuity of 42I. AND ANNUITIES. 4.2I. ics. out of the faid Rent Charge of 300I. which was granted to Samfon for the Life of the faid Mary Charlotte Williams, viz. 297I. los. were ftated in the memorial to have been paid to her in notes of the Bank of England. It appeared in evidence in this caiife, that Crefivcll had employed Powell to lay out a funi of money in Annuities, and that upon his having advertifed in the papers, Bindley applied to him on behalf of Mary Charlotte Wilhaim to fell this firft Annuity of 25 ol. to Crejwell, and afterv^^ards in like manner the other Annuity of 42I. los. with 6d. in the pound falary, which made 50I. for receiving and paying over the whole Rent Charge of jocl. which for that purpofe was af- figned over to Samfon. The two principal objec- tions to the memorial were, that the confidera- tion could not be truly fet forth, as it was impof- fible, that thefe broken fums could have been paid in bank notes : and tnu^-- A'hiry Charlotte Williams did not receive as much as the fum, ftated. The other objeciions were that the con- fideration of CrefivelVs Annuity was not ftated to have been paid by Jenkins for Crefivcll : that Samfon^siKnumiy was in fa6t 50). and not merely 4.2I. ICS. as ilated : that the truflee of the Rent Charge of 300I. for Mary Charlotte WiHia?r.s was not ftated as txw^ce pro tcnito for Samfcn : and that the bond and warrant of attorney were not fufli- C c 2 ciently S^^l Lord Thur- low's decree ;tffinned. A TREATISE ON USURY clently defcribed. As to the firft objeftlon Lord Loughborough faid, that it did not apply to Crefwell's Annuity : " for the 2000I. might " have been paid down in bank notes and the " parties might have broken them afterwards." In the Annuity of Crefwell it appeared to the Court, that Ivlarj Charlotte Williams had been obliged to pay for law charges out of the zoocl. J5I. to Balfour the attorney oi Dubourg, 31I. to Palmer whom Crefwell by his agent infifled upon employing to draw the deeds and Sol. to PczvelL Mary Charlotte IFillians objeded to pay Fahner in particular, alledging, that lire had agreed to pay 8cl. to Powell^ M'ho was the only perfon employed by her in the bufmefs : but Ihe was compelled to pay thefe feveral fums out of her purchafe-money, and (he then executed the deeds. From Mr. Browne's report of this cafe it feems, that the omifiion to fet forth thefe dif- ferent-payments out of the purchafe money was the ground of Lord Thurlow's decreeing on the 24th of May 1792, that the affignment to Cref- well was void, for want of the inrolment of a -pro- per memorial thereof. For the only objedlions, which he reports to have been made againfl this memorial, were, that no mention is made of the payments to Powell Balfour and Palmer^ and that the broken fums were paid in bank notes. Lord Lough- AND ANNUITIES. 3S0 Loughborough, as I have before obferved, placed part ii. no force in the objedlion of the bank notes ; but chap. vi. as he confirmed the decree of Lord Thurlow, it muft be confidered to have been affirmed on the fame grounds, on which it was made. But let us fee what Lord Loughborough himfelf is re- ported to have faid upon this very point : and by that we fliall be the better enabled to conclude whether or no, the payment by the grantor of the law charges to the agent attorney or fcrivener of the grantee muft be fet forth in the memorial, in order to comply with the rcquifitions of the Annuity Ad:. Mr. Browne is fhorter in his report of Lord Loughborough's decree than Mr. Vezey : as to this part of it he fays ' : *' The manner of the ,, „ ^ •' Mr.Brown's " tranfadion was, that Ardefoif and Bubourg '•^p"" of it. " were paid their demands and Mrs. Williams " inftead of being paid the Turn ftated in the me- ** morial was adually paid only 213I. for 80I. " was paid out of her money to Pcivell 15I. to " Balfour and 30I. to Palmer. There is no " evidence of an agreement between Mrs. IVil- " Hams and Crefwell that fhe fhould pay his ** agent ; fo Palmer's charge was CrcfujelTs *' debt, not Mrs. Willia?m's. Mr. Vezey fays% "The manner, in which ' 4 Bro. C. C. 309. ^ 2 Vez, 153. C c 3 " the. 390 A TREATISE ON USURY PART II. " the confideration appears to have been paid, CHAP. IV. « i^ f^^ ^^,^3^ ^i^^^f Ardefoif was paid all, that hq Mr. Ve- " claimed ; fo was Diihourg ; but Mrs. IVilliams ^cyre^or ^^ iiifigad of being paid the fum of 339I. 13s. " dated to have been paid to her received bene- " ficially a much lefs fum ; Sol. having been at " the time dilTipated in the expences by the ^y- " ment to Poivell, 15I. being paid to Balpury " and 31I. los. to Palmer upon a bill then pro- " duced. There is uo evidence of any terms of " the agreement with Crefwell, except what the " deed indicates. That indicates that the 2000I. " was to be paid for the benefit of Mrs. Wil- ** Hams, as I have ftated. The memorial fays " it was fo paid. " The original agreement we know nothing " of but from the deed itfelf. How has that " fum of 2 00cl. been paid to her ufe .? Juft at " the time, at the moment the money was pay- " ing, Palmer brings his bill. There is no evi- ** dence at all, that it was part of the agreement, ■ " that CrefweWs attorney fhould be paid by her. " On infpecling the bill, the charges feem pro- *' per : but they are againft Crefwell. In the " courfe of this bufinefs the money, he has re- " ceived, is to the ufe of Crcfu-dl. Though that " fum cannot be faid to be literally retained by f* Crefizell, yet it was deducted out of the fum, ff which upon the face of the tranfadlion was " all AND ANNUITIES. 391 ^« all to be applied to her ufe. Suppofe It fair part ii. " and that there was no fudden impofition, but CHAl'.;v^ *' that it was part of the agreement^ it ought to " be dated, for inflead of receiving 2000'. there " is a deduftion of what in the ordinary courfe ** of the tranfa:tion would fail on Crefwdl, " Therefore the propofition in the decree is true, " that the deed is void for want of inrolment of " a proper memorial." Although the cafe of Broo?uhead \. Eyre^ ^^<>^^^^ . . . . cafe upon turned chiefly upon retaining or returning a uw chaises. part of the confideration under the fourth fec- tion of the Ad., yet enough was faid by the Court in that cafe upon the law charges making a part of the confideration to authorize me to clafs it with the foregoing cafes, which confirm my opinion upon this important queflion to mod fufFerers under hard Annuity bargains. Two objedions were taken to this Annuity : the firfi: was that the confideratioji was not paid accord- ing to the fourth feclion of the Acl : the fccond, that it was improperly flatcd in the memorial . It appeared to the Court, that the confideration- money (6col.) was paid to the defendant : but that I 9I. I IS. 4d. were deducted to pay R. Wood- gate's bill and 3I. were paid for procuration • money, 'j'iie memorial ftated the confideration - 5 T. Rep. 597. and rather more largely from n Manii^ ''•ript Cafe in r.'Ir. Hiuu'd ufeful Co!k"iliun. ad edit. l^y. C C 4 - of 392 A TREATISE ON USURY of 600I. to have been paid to the defendant : and took no notice of Woodgate's deduftion for his bill and procuration-money. Broomhcad v 5 T. Rep. 283. have AND ANNUITIES. 395 have been repeatedly decided by the Court of part ir, King's Bench, viz in Willey y. Wheeler, Trin. ^,^^^J^ 31 G. III. and ex -^arte Cbejier, Pafch. 33, G. III. * where one deed out of feveral, by which an Annuity was fecured, had not been properly regiftered, that this particular deed only v/as avoided. And the Court was of this opinion, obferving, *' that the word fuch in the Annuity *' Act confined the operation of that claufe to " the particular deed, which was not truly re- *' cited in the memorial." It is fmgular how- ever, that in the preceding Michaelmas Term, 32 Geo. III. the fame Court in Hopkins v. Waller had made abfolute a rule to fet afide a judg- ment becaufe the warrant of attorney had not been regiftered. This judgment was in facl contradictory of the other tvv'o : becaufe accord- ing to the two former cafes the reft of the fecu- rities might have flood, although the warrant of attorney were not regiftered : for an improper and irregular rcgiftery ot a deed renders it as effectually void as the total omiflion to regifter it at all. There can be no doubt, but that this cafe of Contraricijr Ho[k'ins V. Waller is faithfully reported, for the Court of Common Picas in David/on v. Foley and others'^ withheld their judgment upon a hmilar ' 4 Term Rep. 695. * 2 H. Black. 12. cafe. 396 A TREATISE ON USURY cafe, till they were acquainted with this decifion of the King's Bench, and with which afterwards they fully concurred. But this Annuity Act mult furely pofiefs a very dudile and pliable quality to ground fuch a fuccefiion of oppofite opinions of the fame Court upon the fame point. For in Michaelmas Term, 33 Geo. III. in Saun- ders V. Hardinge'^ Lord Kenyon having found one of the deeds fecuring the Annuity void from not having been properly regiftered faid, *' this " laft judgment cannot be fupported, but this *' will leave the other fecurities ftill in force." The point However this unaccountable ofcillation of fettled by Lord Lough, opinion has been now irrevocably fixed by the borough. _ ^ , very accurate and folid determination of Lord Loughborough in the Duke of Bolton y. IVilUams'^. " It has been faid that the Court of King's *' Bench had fuppofed, that if there is a defect in " one inftrument, that will make only that par- *^ ticular defedive inftrument void, but that all '' the others might be ufed. The quotations *' from the Court of King's Bench turn out here '' juft as they ufed in the Court of Common *' Pleas : they never ftand an enquiry from the " Court itfelf; I am now informed, that no fuch "idea was entertained by that Court. The " Courts of Common Law, which will upon their I 5 T. Rep. 9. a 2 Vcz. jiin. 154. VIJ. alfo 4 Bro. C. C 310. *' general AND ANNUITIES. 397 '^ general jurifdidion enter into the validity of part ii. " the warrant of attorney, or judgment upon <^haP'1^'« *' motion, in the particular application under " the Ad: will only fet afide the judgment or " execution or vacate the warrant of attorney ; " but the jurifdiction does not extend to order- " ing the bond to be delivered up ; and if ever '' done, it has been done inadvertently. The *' firfl claufe of the Statute is that, which directs *' that a memorial fhall be inrolled of every " deed bond inftrument or aflurance, by which " any Annuity fhall be granted. It is difficult to " put it in more exprefs terms than that it ftall " contain them. All the different parts, the " bond, warrant of attorney, the bond from the " furety, all make but one affurance; the objeft *' is, that the affurance and all the com'ponent " parts, fhall be fet forth, therefore the expref- " fion is ufcd clearly enough ; and a memorial, " that does not contain every deed, bond, in- " flrument, or other affurance, is not valid " within the Ad. It proceeds to fay, that other- " wife every fuch deed, bond, inftrument, or *' other afl'urance, by which an Annuity is " granted, fhall be null and- void to all intents " and purpofes. The word ^ fuch^ means every *' one by which an Annuity is granted, and can *' refer to nothing clfe. The other conftrudion " will not agree with either the common, legal, or " flrid 398 A TkEATISE ON UStJRY PART 11. " ftrict grammatical fenfe of the words. Upori CHAP. IV. u fjj.^f confl:ru(5tion, for ^ every' you muft fub- " flitute ' each.'* They are not to be taken fin- " guhiti^Uy but colledlively j and other wife i he Ace *' would be defeated. Suppofe the affurance was " bond, warrant and judgment, and the bond *■' was defedively fet forth, (hall you fay the bond " is badj but the judgment good and ought lo be *' executed without the bond to fupport it.'' Sup- '•' pofe it had been money in the funds, and that " the bond was defective, would you fay that " was void, but the demife was to ftand '^ The " plea to any of thefe inftruments would be, " that the memorial was not good to the whole ; " and though the Court will not proceed further *' than the application requires, yet there is no ^^ doubt in that or any other, that the confe- " quence of the defeft afftcls all the parts of " the tranfadion, becaufe all are to be taken to- " gether, and cannot be fevered fo as to give ef- " fed to one." In furt af- ^fhis great and important cafe was ultimately Loi^Kea/ determined in Trinity Term 1 793 : and as lately as Michaelmas Term 1795, Lord Kenyon in Hart V. Lovelace fpoke thus to the queflion: " I " am not prepared to fay, whether or not all the " inftruments given to fecure an Annuity muft bfe **■ fet afide merely becaufe one only is not proper- '* ly regiftered. The cafes on this fubjeft are not q *' recon- >0I1 AND ANNUITIES. 399 " reconcileable : but in the lateft of them Lord part ir, " Loughborough, who drew the Annuity Acl, chap.iv. '* decided in the Court of Chancery, that if any " one of the deeds conftituting the aflurance for " the Annuity was not properly inrolled, all the " inftruments were void. We are not now to " determine that point : but the flrong inclina- " tion of my opinion is, that any defect in the *' memorial of one of the deeds, will vitiate the " whole aflfurance." The words of the Court in Grant v. Foley * ofthe •> ? are a fair comment upon the intent and effecl of [j^'^|.V'^ the 2d feftion of the Annuity Adi. " The " Statute requires, that whenever any flep is to " be taken refpefting an Annuity granted be- " fore the A6b pafTed, an inrolment muft be " made Hke to the memorial, which muft be " made at the making of a new grant, that is, " the (late of the parties, as they are at the time " of. the inrolment." If \VQ come to connect this do6lrine of the r>f,i, Ui Ihc 11"- Court of Common Pleas with what fell from "5'fy°'"- giltcring an Lord Loughborough in Bolton v. JViUiams^ viz. aflignmcnc. that '^ *• no perfon can claim in right of another " grantee * Manufcrlpt Cafe in Hunt. 2d edit. 43. 23 Geo. III. C. B. * 2 Vcz. 156, and as Brown fays (311. 4 C C.) " it Is " pcifcdly 460 PART n. CHAP. IV. Difference of the opi- nions ot ihc King's Bench and Common Pleas. A TREATISE ON USURY " grantee of an Annuity without having that " derived to him under a proper memorial re- " giflered of the alTignment being made : for it " muft appear by the regiflry, who is the real " owner and beneficially entitled to the An- '• nuity :" I am at a lofsj to know how to re- concile itj with the very explicit decifion of the Kinijj's Bench in Bro?nley v. Grjuibead, when they determined that the regiftering of an aflignment of an Annuity once inrolled was neither requi- red by the words nor the fpirit of the Aft. With due deference to the authority of the Court, I humbly fuggeft, if the noble Lord, who drew the Annuity Aft be right in his pofitions, that before procefs can be had againlt a grantor of an Annuity granted before the Aft, the flate of the parties muft be fet forth in the memorial, as they are at the time of the inrolment, and that no perfon can claim in right of another grantee of an Annuity without having that derived to him under a proper memorial regillered of that aflignment being made, then muft the Aft re- quire a memorial to be regiftered of the affign- ment : for how otherwife will it (Lord Lough- borough fays mujij appear by the rcgijiery, 'who is " perfectly clear, that no perfon can claim under an Annuity *' granted to another, where there is not a good memorial ; '* for it mult appear by the memorial, who has the prefent " fubfifting right.'* the And annuities. 401 ihs real owner or benejicially entitled to the An- part ii. nttity ? The reafoning of Lord Loughborough . '^^^ ; is evidently bottomed on the beneficial effects, which the regiftery is fuppofed and intended to operate upon the grantor of the Annuity. And I find it difficult to conceive the grounds, upon which the Court of King's Bench, which mDix- bn V. Birch and Toyte, declared the objeft of the Statute to be the -prote^ion of the grantor have by thefe decifions eftablifhed the neceffity of regif- tering a memorial of an alTignment of 99I. part of an Annuity of lool., and determined that an affignment of the whole Annuity is not required to be regiliered either by the words or the fpirit of the A(ft. But non nojlrwn ejl- — \n Bromley and Greathead ' Mr. J. Grofe, who had been counfel in Grant and Foley, (in which latter cafe, the neceffity of regiftering the affign- ment from Grant to Dallas was admitted), faid that was a cafe, in which the affignment exifted at the time of the inrolment of the firfl deeds, and that that was the reafon of the decifion. And upon the ground'of this diflintStion did the King's Bench decide both the cafes of Bromley and Great- head and Tiixon v. Birch and Toyte : but the Re- porters inform us not in what the Court made that difference to confiQ. It would have been fatisfac- ^ Hunt. 2d edition, 44. D d tory 4J02 A TREATISE ON USURY Of one An- nuity being the confi- deration of mother. tory had they noticed the rules grounds or principles of Law, by which an afTigninent of an Annuity made on the nineteenth day after the grant and before inrolment differs from an affignment of it on the twenty-firft day after the grant when it has been inrolled, as to the origi- nal grantor of the Annuity, for whofe protedion this regiftery was inilituteJ. The only conflrudion, which I find the Court has put upon the words of the 3d fedion of the AAj CaVid which JJmll le in money only) is in the Cd,^e. ex farte Fallon et Uxor. Two objections >vere ftarted againfl an Annuity granted by Fallon and his wife : one of them was, it's not being regiftered within twenty days inclufive of the execution of the fecurities, of which I have before fpoken. The other, that the whole confidera- tion was not p?Jd in money to the grantor againft the 3d feclion of the Acl: the greater part of the confideratlon having been paid by direftion of the grantors to a former Annuitant for the affignment of his Annuity, and the re- mainder 1C5I. paid to Fallon. Lord Kenyon obferved *' that it was not ne- ** ceflary then to determine, whether an afllgn- " ment of one Annuity be a fufficient confider- " ation for the grant of another within the An- " nuity AS.. (A clear proof, that he looked upon " the cafe as undecided.) The great mifchief " intended AND ANNUITIES. 403 ^* Intended to be provided agalnft by the Leglda- ^^^"^ ^'■; ^ . r 1 J • CHAP. iV. ** ture in this Ad was the fraud and circum- c__^_^ ** vention of thofe, who took advantage of the *' neceffities of dinirclTed perfons defirous of ** taking up money upon Annuities by putting ** off goods upon the latter at their own price *' inftead of money, which goods they were " afterwards to difpofe of at a confiderable lofs. " For this reafoii the Legiflature required, that " the confideration fliould be in money and not *' in goods. But it is not neceffary nor was it *' ever intended, that the money fhould be actu- " ally told down at the time of the grant. If it " be a bond jide tranfaclion and the money be *' really paid to the grantor or lo his ufe, it fatif- *' fies the words and meaning of the Ad:. Now ** that was the cafe here. The grantee paid a " valuableconfiderationfor this Annuity, which *' the grantor received, though not immediately *' frorii him ; yet it was paid on the grantor's " account. I am not indeed prepared to fay, *' that any Annuity however obtained or for " whatever fum is a fulHcient confideration with- '* in this A(£t for the grant of another Annuity : " but at any rate this was purchafed in the way " of agency by the requefl and for the ufe of the '* grantor." AJhhurJl J. concurred. BuUer J. " The Annuity A 61 intended to pro- D d 2 '' hibit 404 A TREATISE ON USURY " hibit the purchafe of Annuities for goods be- *' longing to the grantee, by the fale of which at " a price ftipulated by himfelf the grantee gained ** an unreafonable and fraudulent profit out of *' the confideration, which was pretended to be *' advanced. And therefore it is exprefsly re- " quired, that the confideration fhall be in money " and not in goods. But that cannot affedt this ••' tranfaciion; for here the pvrchafer of the fe- " cond Annuity cannot be faid to have ever been " in pcireflion of the firft on his own account ; '* for he redeemed it at the exprefs requifition *•' of the grantor and on her account ; and muft ** therefore be taken to have expended fo much " money for her ufe, which is the fame as if he *' had paid it to her. And then this cannot be " diflinguifhed from the cafe of a debt for fo " much money adually borrowed of the grantee " by the grantor." Grofe J. " The object of the Acl was to pre- '' vent the payment in goods inftead of money, " but I confider the 64CI. as really paid to the <' Fallons.'* To the conflru6lion alfo of this part of the Acl is applicable the faying of Lord Kenyon, which I before quoted in Rtanhall v. 'Murroy, " I agree " with the conftruclion put at the Bar, that ** money is mentioned in the A61, as contradif- ♦' tinguifncd from goods, and fo far notes when " paid fcient tiom tlie hiltfec- tion. AND ANNUITIES. 405 *' paid are money within the meaning of the «' Aft." Important and creneral as is the cafe intended of the 3d . . . . fedlion of to be provided againft by the third feftion of the ii'e aci. Act, it is utterly unaccountable, that it does not appear to have ever come diredly before the Court : if it have, it has eluded my refearches. The difference between this third fed ion and the firll feflion of the A61 does not confill in the ul- timate effedl or confequence, which in both cafes is the avoidance of the deed, but in the caufe of fuch avoidance; in the firft by omitting to in- Ho«-dif. fert fomething in the memorial, in the fecond by omitting to infert fomething in the deed. I will exemplify my meaning by a real cafe, which has come before the Courr, though I cannot from the report of it conclude, that the Court applied it's decifionto theefFeft of this thirdfe£tion of theAd. The cafe I allude to is the Duke of Bolton v. WiU liajiis ', where the Chancellor in fpeaking of the memorial's being defeclivc from not fetting forth truly the payment of 2000I. by Crefwell to Ma- ry Chailotte Williams faid, " Inflcud of being *' truly it is falfely fet forth. The money was *' not in truth paid by CrcfivdU but by an agent, *' whofc name ought to have been fet forth. It " fliould have l.ared, that it was paid by Jenkins " and on behalf of Cr^/uY-//." V * 2 Vcz. 153. D d 3 Upon 4p6 A TREATISE ON USURY rART II. Upon thi? decifive opinion of Lord Lough? . ' : borough we muft conclude, that at dl events the Annuity granted by M. C. Williams to CrefweU was void ; and it appears from the report, that it wa? found void from the dcfeftive memorial under the operation of the firfl fedtion. Yet upon refle£tion on thefe words, ;/ Jhouldhave Jiated that it was paid by Jenkins and on behalf of CrefweU i we are naturally led to conclude, that the Court looked to the third fection of the Aft, which ppfitively directs, that in every deed bond Of fitting or alTurance the name or names of the perfon deeds the or pcrfons, by whora and on whofe behalf the agents, vvh'^ faid confideration or any part thereof fhall be payt emo- ^^^^j^^g^J ^^\\ j^^ ^^\\y ^^^ ^.J.^Jy fg^ forth in words at length. It appears therefore uncon- trovertible, that in every cafe, where the grantee of an Annuity does not aftually pay the money himfelf in perfon, the agent's name, by whom he pays the confideration muft be fet forth in eijery deed bond or ajfurance^ by which the Annuity is granted or fecured to him. It prohibits not the payment of the confideration by an agent, but annuls every deed, which does not fpecifically fet forth upon the face of it the name and fundion of fuch agent. The fourth fcdion of the A£t has given rife to three rliftinct clafies of cafes ; x\i&jirfl relates to t\it return or retention of any part of the confi- deration AND ANNUITIES. deration on any pretence whatever, the non- payment of notes given as the confideration, and the payment of the confideration in goods : the fccond clafs concerns the perfons, who may and the time when they may apply to the Courts to vacate the Annuities : and the third refpeds the jurifdiflion of the Courts. Of the lirft clafs is the before-mentioned cafe of Broomhcad v. Eyre, where the bill of charges including the procuration-money received by "Woodgate the real purchafer was looked upon as a retention of a part of the confideration- money within the fourth claufe of the Ad. On which occafion according to the Manufcript Cafe in Hunt, " the Court of King's Bench *' faid, that the Public were much indebted to *' the excellent perfon, who drew up the A6t of *' Parliament, which enabled them to put an " end to tranfadlions of this fort, and that the " eftccb of the Acl would be at an end, if they " fuffered a cafe of this kind to efcape them : *' that it had been long determined, that if the " lender of the money charged for procuration, '■^ it was Ufury, becaufe he was not entitled to " it for putting out his own money." Although the Court feemed alfo to have made up their mind upon the other objedion made to this Annuity, which as before obferved, wat* the defed in the memorial from notfetting forth the D d 4 law- 407 PART II. CHAIMV. Of retaining a part of the confidcra- Uon-monsy. 4o8 A TREATISE ON USURY TART II. law-charges, yet *' the Court added, that they CHhp.iv, a vvould make the rule abfolute on the ground, " that it was wUhin the fourth claufe of the Ar two terms go by (to his own lofb) without ; .irfuing a re- medy, which the A6t confines to no limitation of tirhe whatever. Lord Kenyon however^ who on mod occa- fions feems to have been rather difpofed to ex- tend, than confine the remedial effefls of the Ad, upon this point appears to have differed from Lord Loughborough. For in Smmonds v. Mortimer % where the cafe turned upon the va- lidity of the memorial, but the application was made by the defendant and the fadls were fup- ported only by his affidavit after the death of the agent, who had negociated the Annuity between all parties, Lord Kenyon Ch. J. having flopped the counfel againft the rule faid : " The length " of time, which has elapfed fmce the granting " of this Annuity and the defendant's having " lain by till the death of the agent, by whom " the bufinefs was negociated, and till all evi- " dence of the tranfadlion, except what he him- " felf has difclofed Was loft, might perhaps have *' been a fufficient anfwer to the application " without entering further into the merits of it." According to the Manufcript Report given by Mr. Hunt of the cafe of Coufins v. Thomfon'^, * 5 Term Rep- 159. ^ Hunt. 2d edit. 238, and 6 Term Rep. 335. which AND ANNUITIES. Vhlch In this differs from that given by the Term Reporters, Lord Kenyon feems to have gone the whole length of precluding Mr. Thorn- fan from his remedy on account of his laches in not making an Earlier application to the Court ; or rather for having acquiefced in and paid the arrears of the Annuity under two executions and then denying, that he had received the full con- fideration-money, when 'Tea/dale the agent in the bufinefs was a beggar in St. Martin's work- houfe and in a flate of mental imbecility, fo that he could give no account of the iranfadlion. " The Court after looking at the affidavits on *' both fides faid, they were always anxious to '* carry into effect the valuable purpofes of this *' r. cl ; but at the fame time in doing that, they '• muft take care and not go beyond the mark. " They were of opinion that the turn of the " fcale in this cafe ought to be given to the affi- " davits on the part ofthe plaintiff, in as much as ** they were fully confumed by all the tranfac- " lions that followed. The Annuities were *' granted in November 1792;— things go on till " 1793, when two payments become due. All ** was right then according to Thomfon : for two ** executions came into his houfeand he atflually *' makes them the payments. If the confidera- " t ion money had not been paid, that would have ** been a good anfwer to thofe executions, and it Ee "was 417 PART n, CHAP. IV. Mr, Thom- fon barred by his own laches. 41 8 A TREATISE ON USURY FART II. "was to have been expelled, that he would CHAF. iv. t« niake a iland then, and have brought forward " this application to the Court. But inftcad of '^ that he is filcnt, till the mind of Tcafdale^ the *' molt material witnefs in this bufmefs, is redu- " ccJ to a ilate of imbecility ; and then it is " for the firll time, when this man can give *' no account of the tranfaclion, that Thoinfon '• comes into this Court and complains of grie- " vous opprelhon, I'lieir Lordfliips were una- " nimoufiy of opinion, that the rule ought to be " diichargcd." The pro- Whether this Manufcript Report be more vince ar aie war- earance into a loan, and " under thofe apprthenfions (whether well or ill founded it is rot now neceffary to confider) " covenants for that purpofe *' have not been inferted in the deeds." Vid.antea,p. 266, Sec. what I have faid upon this point. "" 4T. Rep. 694. * Mich. 51. Geo. R. R. cited in a note in the above cafe 4 T. Rep. 695, ** before AND ANi^UITlES. 425 *•* before any judgment has been actually entered p>rt ii. "up, and may, if they fee proper, direct it to chaimv. *' be cancelled, to prevent any improper ufe to ^' be made of it." So in Duke of Bolton v. fVilliams \ according to or the pw. Brown, Lord Loughborough fpeaking of the ju- thonty of rifdidion of the King's Bench, faid, " that the ' """^ ^' Court could go no farther than the application " before them : yet when their own procefs is *' made the means of a conveyance, they can *' take no notice of it upon motion." And according to Mr. Vezey's better report of the cafe, his Lordfhip faid, *^ * The Courts of Com- " mon Law, which will upon their general jurif- " diciion enter into the vahdity of the warrant *' of attorney or judgment upon motion in the " particular application under the A(5t will only " fet afide the judgment or execution or vacate " the warrant of attorney, but th<^ jurifdi^tion ** does not extend to ordering the bond to be " delivered up, and if ever done it has been done " inadvertently." I have before obferved, that Lord Kenyon had ^^'i-eri'" ■' tlii: Cour(5 obferved in G^rrW V. Saunders, tuat when the canentft- deeds were defective under the firft feci ion, it cations , »• 1 without in was immaterial, whether they were delivered up a^ion com. mcntcJ. * 4 Bro. C. C. 310. * 2 Vez. 154. OX 4:6 A TREATlSfe"bN USURY or not. But this Is 6ne of the peculiarities of the Act, that the delivery up of the deeds is only directed in the particular cafes of the fourth fev^tion of it : and for this, the Act did no' declare the fecurities void and null, as in other cafes, but empowered the Court, in which any action was brought for payment of the Annuity on judgment entered by motion to flay proceedings on the judgment or a£tion, and to order the deeds to be cancelled and the judgment, if any had been entered to be vacated. We have already feen, that the Courts have interpreted the words of the Adt to extend to theivarrant of attorney^ althou^^h no judgment have been entered up. And by their practice, they appear to have extended the pov/er and jurifdi;tion given exprefsly in the cafes of the fourth fection on'y to every cafe, in which the deeds are an- nulled and avoided by the Statute. Were it not for the cafe of Cravfurd v. Caincs^ which I Ihall take notice of prefently, I fnould here lay it down largely, that wherever an Annuity was granted by deeds or fecurities, which the Act declares nu^l and void, there the grantor is at liberty, ic'Z'^/^fr any a6imi have been brought for faymcnt cf the Annuity or ti:t, to apply to any of the four Courts of Kecord at Weitminfler, and they have full and competent jurifdidion to entertain the application, and to examine into the cd. AND ANNUITIES. 4,7 the proofs, upon which they mufl either dif- p^^-^y jj charge or make the rnle abfolute, which in fact chaimv. and fubftance is a declaration, whether by the ' Statute the deeds be null or vaHd. In faying this, I do not pretend to niaintain, Samcronu that ahhough each of the four Courts may have twice-uj^ competent jurifdiclion to give relief under the Sta tute, therefore they can repeatedly or fjccelTivcly admit applications where on the fame grounds the matter has been once res jnduta by 2l Court competent to judge it. But if a grantor hav- ing been advifed to apply to a Court of compe- tent jurifdiction to fet afide an Annuity ' lliould have failed in his proofs and application, I can- not conceive, that under better advice his appli- cation to another or even to the fame Court (houldbe rejeQ:ed,when madeuponfrefli grounds: nor is it readily to be explained, how the Courts, which are officially bounden to take notice of every public Statute, can difcharge a rule for vacating an Annuity, whiJi they may know to I With great fubmifTion to the general pradice 1 luimbly fuggtfl, wlunher it might not be more congenial with the ipi- lit of the ACl, that In all the cafes under tlie three lirft fcc- tions ot it, the applications to che Cor.it fliould be for rtVr/c/- rhig the faurUtei null and void by the Statute, inlKad of felting alide the Annuity or ordering the deeds to be delivered up to bo cancelled, as doubts and diiTieuhies liave been llarted upoa the latter, whieh could not have oceiiircd on the propofej motion. I be 425 A TREATISE ON USURY PART 11. be void by a public Statute, though the paiticu- . '^ ' '. lar ground may not be pleaded or urged by the party applying for relief. Craufuri In the cafc of Craufiird v. Calne^ \ Sir Hew Craufurd had purchafcd an Annuity of the wife of the defendant for the joint lives of the de- fendant and his wife, and for her- life in cafe fhe furvived, out of a Rent Charge fecured to her for her life upon lands. She levied a 'ar^zfur ccnufance de droit iantum to Sir Hew Craufurd, and a bond and warrant of attorney to confefs judgment in the King's Bench were given to him for betier fecurinor the Annuitv. A motion was foon after made in B. R, for fetting afide the Annuity and Sir Hew died before any judg- ment was aflually entered upon the warrant. And now a rule was granted in the Commoi;i Pleas to Ihew caufe, why the Annuity (liould not be fet afide and the deeds, &c. delivered up •to be cancelled and the fme vacated on the ground, that the memorial did not truly fet forth the confideration 1700I. being the fum dated to have been paid, when in truth part of it was kept back by Sir Hev/, and that feveral of the fecurities were not fully ftated in the me- morial. Although the circumftance of the re- •:cntion of part of the confideration by Sir Hew • i H. Black, 45 1 Craufurd Ait. AND ANNUITIES. 4:29 Cranfurd appeared to the Court in this cafe, yet the defendant by the report does not appear to have applied under the fourth but under the firft: feftion of the Act to fet afide the Annuity on account of the defect in the memorial. • I have before remarked, that the fa6t of re- Afir.en.v tention of a part of the confideration by the ^"thiru^r granree is one of the circumftances, under which the Statute has limited the jurifdiclion of the Court. Here the faft occurred and the Court without giving any opinion as to the alledged defeats in the memorial, fpoke only to the jurif- didion of the Court : viz. "That a' ^t)r the Annuity. And this harfh abfurd and incredible inference muft follow, that although the Statute render the fecurities null and void, yet the grantor cannot avail himfelf of their nul- lity, becaufe no Court in which an action is not commenced for the Annuity has competent au- thority or jurifditHion to fet the Annuity afide or declare the fecurities null and void under the Statute. j:f^.,.. ^ Reluctant as I am to believe, that it ever was I'jvciace ^.|^g intention or ever can be the effect of the Liuuiurd Annuity Act to exclude thofe from it's reme- dies, who may not have given a warrant of at- torney, or permitted a judgment to be entered up againfl them, or who by the death of their . grantee without entering up judgment (as in the cafe of Sir Hew Crawfurd) may have become exonerated from this part of the fecurity, for want of competent juiifdidlion in any Court to entertain their application, I am happy in being fupported in this opinion by the authority of the Court of King's Bench, which in Hart v. Lo'vc- lace appears to me to have admitted the point. In that cafe, the Annuity in queRion had been the objec:}: of a decree in Chancery, and had been admitted to a priority before fome other Annuities : and it was argued upon the applica- tionto^he King's Bench to have the fecurities delivered AND ANNUITIES. 431 delivered up to be cancelled, that the validity of the Aniiiilry was then palled t?i rem judicatam and could not be queflioned again. The Counfel alio urged, that in this cafe none of the objec- tions aroi'e on the fourth fection ot the A61, ivh'ich aloiif gives jurifdidion to the Court to order the deeds to be cancelled for the reafons fpeci- fied in the fourth fec:l:ion : and in Garrood v, Saunders the Court held ' that there was no re- ference from the fourth to the fird fection. The confequence of which was, that though the deeds in quellion might be void, the Court could not grant Vvhat was prayed for by the rule, not having authority to order them to be delivered up. Notwithiianding this objection to the ju- rifdiction of the Court, they however exercifed it in this iniiance, and made the rule abfolute on account of the defects in the memorial. With reference to the jurifdiction of the Court Lord Kenyon faid : " In the courfe of this argument- '* I have had fome dilliculty in my mind re- ^ Tliis opinion of the Court is not reported in the cafe of Garrood ^. Sauuckrs^ 6 Teroi Rep. 404, which was decided in Micliaehnae Term 1795 : out it is I'carccly to be fuppofed that Counfel (Erfkine and Lane) would in the very fame Term alFirrt this without good rcafon to the Judges, who had in their prcfence delivered tlieir opinion. This concln- Jnely proves, that it is not by vlrf^ie of tlie power given in the fourtli fettion, tiiat the Courts entertain application* upon the three ft;lt ledions. " fpcrling CHAP. IV, 432 A TREAttSE ON USURY PART II. " fpefling the decree in the Court of Chancer^. " If this queflion had been brought before that " Court and received a judicial declfion, I fhould " have thought myfelf bound by it, as being the *' judgment of a Court havin'^ competent jarifdic- *' tion over the fubje6l jnatter : but the proceed- *' ings there were diverfo intuitu : that fuit had *•' a different obje6t in view and the queftion be- *' fore us did not arife in that Court.*' Grofe], and Lawrence J. faid, *• That this Court was *' not precluded by the proceedings in Chancery *' from entertaining this application, becaufe this *' queftion was not agitated in that Court, though *' if it had, they thought it would have been *' conclufive here." The validity There cannot be a more direct and expKcit avowal, than this folemn declaration of the King's Bench, that the Court of Chancery had coiT^etent jurifdictlon over the fubject matter, which here was the validity or nullity of an An- nuity under the Aft : and that if the fame queflion had been agitated in. Chancery, it would have been conciufive in the King's Bench. Yet there was no pretence for faying, that there was an adiion for the Annuity tomraenced in Chan-. eery, as there had been in the King's Bench by the warrant of attorney executed by Mr. Love- hce for confefTmg judgment in that Court. ~ By ihis cafe of Hart v. Lovelace it mufl then be ^ looked of an An- xiuity not to be tiled twice on the fame grounds. AND ANNUITIES. 433 looked upon as fettled, that when the validity of part ir. an Annuity under the Annuity Ad: has been ^^|^* once before a Court of competent jurifdiction, and there decided, another Court will not enter- tain an appHcation, as to the validity of the fame Annuity upon the fame grounds. This Statute has evidently created many con- courts aa ditions, for the negledl of which Annuities be- oJi^?naiTu- come void, and it has given a fpecial authority juhfafdion, and jurifdI6llon to the Courts in fome particular cafes to order the deeds to be cancelled : but the Legiflature has given no fpecial or extraordi- nary power to the Courts in general, or to any particular Courts, to judge of or determine when thofe conditions have been neglei^led : this has been left to their original jurifdiclion and power to be exercifed by them according to their own ufages rules and principles. Thus we fee, that in the before-mentioned cafes of Berivicke v. Read, Stuart v. Tucker, Flarty v. OJIum, Lit- tcrdalc v. Duke of Montr ofe, the Court fet afide the Annuities or ordered the deeds to be de- livered up to be cancelled on account of the ille- gality of the fecurities, viz. the alTIgnment of pay or half-pay of an officer. Yet there does not appear one word throughout the whole An- nuity Aol, which can even indirectly connect itfelf with this ground of vacating an Annuity. It appears to have been a general alTuniption F f both 434 A TREATISE ON USURY PART II, both of tliofe, who iutrockiced the fourth claufe CHAP. I v^. q[ ji^g j:^^ ^j^j yf thofc, who have argued upon vvheuieiihe it's eiTccts, that no Aniiuiiies, which become ob- Couiii ol RecoiJhave jcds of the A(ft are or can be g-ranted and fe- "■■'S""' 1 • t -1 in aiiihoiity to cured without a judgment or at leait a warrant appll^utl<^n 01 attomcy to conreis one. Inic as many An- nuities, in which all the evils intended to be re- medied by the Statute occur, are granted and fe- cured without either a judgment or a warrant, I prefume myfelf correil in ailerting, that not- withrtanding in fuch cafe there have been no action commenced for the payment of the An- nuity, as required in the cafes mentioned in the fourth fedion, yet under the fuppofition of there being either a defedive or no memorial of the Annuity regiflered according to the fir ft feet ion of the Acr, or of the deeds not fully and truly fetting forth the name of the perfon, by whom and onwhofe behalf the confideration fliall have been advanced according to the third fedtion of the J).di:, yet the grantor may apply to any of the four Courts of Record at Weftminfter, and each one of them has competent original autho- rity and jurifdiwtion to entertain the application, and upon finding caufe, to declare the Annuity null and void under the A6t. 1 fay original ju- rifdiction, for the particular and hmited autho- rity and jurifdiction given by the Acl is con- fined to the fourth claufe, and it was faid In Gar rood AND ANNUITIES. 435 Gdrroodv. Saunders, there is no reference fron the part ri. fourth to ihejirjijedion. I fliould equally think, f "'^^^^ ^^; that a broker could not be indifted for a mifde- nieanor under the feventh claule of the Ad:, ijnlefs an aclion had been previoufly coinnienced in the Court, as that an Annuity might not be declared null and void under any of the three firfl: fedions of the A6t without an action adu- ally commenced. From the nature of the fifth fedion of the Fifth and fixth fee- Aft it wdl obvioufly occur, that no cafe could tiorsotthe have come before the Court, that could be af- feftcd by it. No cafes either appear in the books upon the direct operation of the criminal part of the fixth fedion : nor do any doubts ap- pear to have been entertained upon the firit part of the fixth fefiion, which invalidates the con- tracts made by minors for any Annuity. But there are fome few cafes, which in their prin- ciples and confequences are fo far conned ed with it as to lead to a difcuflion of confiderable moment and of fome difficulty. The three firft fedtions of the A6t in certain Ofaroid- cafes avoid all the fecurities ; the fourth fedtion cgi.trad m other cafes exprefsly authorizes the Courts to nors, order the deeds to be delivered up to be can- celled : bur this fixih fe£lion no longer advert- ing to the fecurities, enads that all contracts made with minors ihall be null and void. The F f 2 Cummou PART IJ. CHAP. IV. Mr. Pow- ell's argu- ment upon it. 436 A TREATISE ON USURY Common Law renders fuch contrads voidable by the minor after his attaining the age of twenty- one years : but this Act goes fo much farther, as to incapacitate the minor ever or on any ac- count to give validity to a contrad for an An- nuity, which he may have entered into during his nonage. From this difference of phrafeology in the fixth fed^ion from that of the preceding fedions of the Ad Mr Powell ' has taken occa- fion to enter into a very elaborate argument, to prove, that the fame difference of conftrudion is to be admitted in interpreting the different fedions of the Annuity Ad, as has been admit- ted in conflruing the 16th of Car. II. c. vii. § q. and the 9th of Ann. (c, xiv.), the firft of which avoids the contrnd ^ud fecurities given for money loji at play^ the fecond avoids only the fecurities given for money won or lent at play. " This difference,'* fays he, '* in the wording " of thofe Statutes and the cafes decided thereon, '^ was held by the Court of King's Bench, in the rnainsinfuU i'>-'tm"t o tor txtefitve dified on the feventh claufe of the Annuity A6t brokerage for having taken 33 2I. 10s. a:; a gratuity and re- ward and for brokerage for folliciting and pro- curing the loan of the fum of 2450I. At the trial it was objected, that the evidence did not fuf- tain the indiftment : the charge being, that the . 322I. ics. were paid for brokerage of the fum of 2450!. ; and the evidence being, that the defen- dant at the time of the money paid, faid that lool. were for the writings (he being an at- torney and having produced them), lool. more by way of prefent or gratuity, and five per cent, on the whole fum, viz. 122I. icl. Lord Kcnyon over-ruled the objeclion, thinking it not mate- rial : but left i[ to the Jury to confidcr, whether thcfe were not mere pretences to evade the Sta- tute, and the Jury fo found. A rule uifi was after- wards obtained for a new trial, on the ground, ' CTiim Rep. 265. G g 2 that 45^ A TREATISE ON USURY PART II. CHAP. IV. Not necef. fary to Ipe- cify ths (jiian/Km of the cxcefs. Ko pretext fl-,ail cover e!tce.iii>e brokerage. that the verdicl was againfl: law and evidence ; and after a very full and able argument on both fides, Lord Kenyoii Ch. J. faid, *' The offence " here confifts in taking more than i os. for every " lool. for brokerage or procuring the loan: and " for this purpofe, the quantum of the excefs is *' Immaterial. In the cafe of Ufury, to which '* this has been compared, it is material, becaufc *' in fetting forth a contraft in pleading, ii is " neceifary to fet it out corrcftly, and prove it as " fet forth. But here the offence is the fame, " whether more or lefs be taken, and the judg- '' ment does not depend on xX\z quantum taken. '* I cannot get over the cafe cited from Lord *' Raymond '. If this objection were to be al- " lowed, it Vv'ould repeal the Statute altogether." Grofe J. " In cafes of this kind the queflion " mufl be left to the Jury, to confider whether *' the defendant really took more than ics. in " locl. by way of brokerage : for if he color- ** ably take a larger fum, under pretence, that " the excefs above ics. was received for another *' purpofe, that will not avail him. In the cafe *' of Ufury it is always left to the Jury to fay, " whether the fum taken, though oflenfibly for * Lord Raymond 149. Rex v. Burdct ; whicli was an in- di^lment for extortion, in which Holt Ch. J. faid, " If the *' indifltnent be for taking extorHvely 20s. and there be only *' proof of IB. ycL the defendant is guilty.*' 4 " another AND ANNUITIES. 453 *^ another purpofe, was not in reality taken as part ii. « ufurlous intereft." "i!!^^' Lawrence J. " The queflion here is not *' whether the \vitnefs did or did not prove, " that the defendant had tai^en 322I. ics. for the '* brokerage, but whether he did not prove, that " more, than lO'^. in lool. were taken by the " defendant., and if that were proved, ic was fuf- ** ficient to convict the defendant/' The rule was therefore difcharged. The eighth and laft fedion of the Ad con- Eighth r«- fifts, as I have before obferved, in the exception Ad.° ' ' of certain cafes, to which the Act does not ex- tend : two only of which have come before the Court. The firfl of thefe came before Lord Chancellor Thurlow by way of exception to a report of the Mailer in Shrapnel m. Vernon ', who had rejeded the claim of an Annuitant under a truft-deed, becaufe it was not regularly regiflered under the Annuity Ad. Whereas when it had appeared to his Lordlhip, that the Annuity was fecured upon hnds of greater annual value, than the Annuity, of which the grantor was feifed at the time of the grant in fee-fimple in pofleflion, of an equitable though not of a legal eftate, he faid : " I am of opinion, that the Mailer was >rong J^Bro. C.C. 268. within the exception 454 A TRFATISE ON USURY " in not admitting the claim. I think an eflate " in equity in fee-fimple, or in fee-tail, is in this Kx^equttabu *' Tefpcd the fame, as if it were a legal eftate. 3S well AS /^— ^a/fec is " In many AOs of Parliament an equitable " eftate is confidered the fame, as if it were " a legal eftate. The words fetfed in law or " equity^ in the Qualification Ad fiiew, that the " word fe'ifed is applicable to both. 1 do not '^ fully comprehend tiie Aft, as I do not fee why " the Annuity (hould not be regiftered as well " in the cafe of a man having a fee-fmiple or " fee-tail, as where he has a lefs" eftate. But the *' Aft certainly does not fay, that it fhall be a '^ value above reprifes ; therefore if there be an ** eltaie in fee or tail, though mortgaged for it's " whole value, it is within the exception of the *' Aft, &c. The only queftion is, whether the *' word Jeifin will extend to being feifcd in. *' equity, Vv^hich if I am not miftaken in point " of law, it will." EKceptioi,. The firift li'eral conftruftion, which Lord ftiiaiVcon- Thurlow in this cafe put upon this feftion of the Aft certainly eftablifties the general rule, for conftruing it : and as his Lordfhip fays, if there be an eftate infee-fimple ox fee -tail, though it be mortgaged for it's whole value, it is within the exception of the Aft, fo upon like principles did I argue in the foregoing Chapter, that any powers of appointment, which to fome purpofes might be AND ANNUITIES. 455 be equivalent to a fee-fimple, as long as there partii. . CHAP IV was not an eftate in fee-fimple or fee-tail, could v____J not draw a cafe within the exception of the Act. And as the Act is admitted by all to favour and protect the grantors of Annuities againfl: hard bargains, the equity of the AS. ought certainly to be extended more to keep them out of, than to draw them within the exceptions of it. The next cafe came before the Court of rx.c'iM, King's Bench in Crcj'pigny v. Witicnoom ', where notgiantc'd the defendants had covenanted to pay to the aiy'i^oi!'il'jf; I J luns. 01"- plaintiff an Annuity of 40CI. for the life of the plaintiff, in confideratlon of his giving up his bufmefs of a prodor in their favor. In the, action of covenant on the ardcles of agreement the defendants pleaded the nonregi fiery of the articles under the Annuity Ad : to which plea there was a general demurrer and joinder. And after argument on both fides, Lord Kciiyon Ch. J. faid, *' It is apparent from Lord k- " the preamble, and tlie different claufe.s of the " /\d, that the Leglflature did not Intend, that " there fliall be any memorial of an Annuity like ** the prefent. The preamble (hues the mifchicfs " of gran ing Annuities for fmall confiderations *' by improvident perfons ; arid ihofe mifchiefs " are guarded agaiaO: by the fcveval claufcs in " the Ad, as far as human pradcnce can go. ' 4Tt^'m Ivcp. 793. G g 4 It VO.l 9 nion. 45^ A TREATISE ON USURY PART II. " It is evident, that the Ad was intended as a vllHIl!!" " ^^^ck againfl hard bargains. The third claufe " exprefsly fays, that the confideration fhall be " paid in money only. The next feclion indeed " fays, tliat if any part of the confideration be " paid in notes, and thofe notes be not after- '• tervyards p:ad, the Court may order the deeds " fecming the r nnuity to be cancelled. The '^ Court therefore were bound by the pofitive '^ words of the Adi to declare, that Annuities, *' the confideration of which was paid in notes, " mud be regifhered purfuant to the Acl. But " in both thefe cafes the Annuity is granted in *' confideration of fomething paid to the grantor; " and no decifion has extended the provifions of *' the firil claufe beyond thefe two cafes. Here *• either the annuity was abfolutely void, be- " caufe not granted for either of the confidera- *' tions mentioned in the third and fourth fee* ** tions, and then no regiftery of it could make *' it good ; or it was fuch an Annuity as could ^ *^ not be regiflered according to the Aft. But *' it is too much to fay, that the Annuity is void " in itfelf ; and I think that neither the fpirit nor ** the words of the Act require, that it fhould be ** regiflered. As to the argument, cxcepiio probai " regiilam ; it feenis to mc that :he anxiety of ^' fome Members of the Houfe induced them to ^' infert the lad claufe, after the Aft was firil ^' drawn ; AND ANNUITIES. 457 *^ drawn * ; but I think that the firfl fecilon part 11. *' could never have been extended to the cafes chap.iv. " mentioned in the laft, if they had not been/ ** excepted." Btdler J. *' I agree, that the preamble cannot j. Buiier's *' control the enafting part of a Statute, which is *'^'""'"' " exprefTed in c'ear and unambiguous terms. " But if any doubt arife on the v/ords of the en- *' a^ing part, the preamble maybe reforted to " to explain it. Now the general intention of the " Legiflature may be collected from the pre- *' amble, which recites, ' the pernicious pradice of " raifing money by the fale of Life Annuities ;' and " the body of the Ad is alfo confined to An- *' nuities granted on confideration of money or " notes. By another claufe too, it is evident that *' the A'fl does not extend to this cafe. The " feventh feclicn prohibits brokers taking more " than I OS. for every lool. actually paid. It ii '^' impollibie to fuppofe, that the Legiflature in- " tended to prohibit a broker receiving any pre - <^' miuni for his trouble in negociating fuch an ^^ Annuity as the preieiit ; and yet his premium *' cannot be efllmated according to the direc- " tions of that claufe. With regard to the words "" in the excepting claufe, 'wiihout regard to ' Tliefe CAfcptiun* were n.it in the firfl bill ; tlujiigli thty ,,ic to be found in the Parliamentary OiRce in the hand- vviiling of the framcr of both bilh;, as I before obferved. *' pecuniary *piiuoa. 458 A TREATISE ON USURY, &c. TART ir. " pecuniary coiifiderations/ I think they were H. i\v. ,( added to fhew the fenfe in which the word * "V -' " ' voluntary * was before added ; and that the " meaning of that part of the claufe is this j that " any Annuity granted for any other than a pe- *' cuniary confideration fliall for the purpofes of *' the Act, be confidered to be a voluntary An- *' nuity." J. Crofc's Ci-ofe J. *' Though the preamble cannot con^ " trol the enafting claufe, we may compare it, " with the reft of the Act, in order to colled the " intention of the Legiflature ; and 1 think it is " apparent from the whole of this Act, that it " was not their intention to extend it to a cafe '* like the prefent. In cafes where money has " been paid as the confideration, the Courts or- ** der the money to be reftored, when they vacate " the Annuity deeds : but the bufmefs, the re- *' linquifliment of which was the confideration " of granting this Annuity, we cannot order to *« be reftored." A P P E N- APPENDIX. APPENDIX. N*^. I. Parts of the BREVE of Bcnedia XIV. dated ijl November 1745, upon Ufury, A ECCAT genus illud, quod Ufura vocatur, quod- que In contra6lu mutui propriam fuam fedem et locum habet, in eo eft repofitum quod quis ex ipfomet mutuo, quod fuapte natura tantumdem duntaxat reddit poft- tulat, quantum receptum eft, plus fibi reddi velit, quam eft receptum ; ideoque ultra fortem, lucrum aliquod, ipfius ratione mutui fibi debcri contendat. Omne proptereu ejufmodi lucrum quod fortem fuperet, illicitum et ufurarlum eft. Neque vcio ad iftam labem purgandam ullum accerfiri fubfidium potent, vel ex CO, quod in lucrum non excedens et nimium, fed mo- deratum •, non magnum fed exiguum fit ; vel ex eo quod is a quo id lucrum folius caufa mutui depofcitur, non pauper fed dives exiftat ; nee datam fibi mutuo fummam relicSlurus otlofam, fed ad fortunas fuas am- plificandas, vel novis coemendi prsediis, vel quxftuofis agltandis "legotlis, utilifiime fit impenfurus. Contra mutui fiquiciem legem, qux neceflario in dati atque redditi aequalitarc verfatur, agcre ille convincitur quif- quis, 462 APPENDIX. No. I. quis, eadem sequltate fcmcl pofita, plus allquld a quolibet, vi mutui ipfius cui perivquale jam fatis eft fa£lum, exigere adhuc non veretur ; proindeque, fi ac- ceperit, reflituendo crit obnoxius ex ejus obligatione juftitise, quam commutatlvam appellant, et cujus eft, in humanis contractibus a^qualitatem cujufque pro- priam, et fandle fcrvare et non fervatam exacle re- parare. Neque item negatur, pofle multoties pecuniam ab unoquoque fuam, per alios diverfse prorfus naturae a mutui natura contraflus, retlc collocari et impendi, five ad proventus fibi annuos conquirendos, five etiam ad licltam mercaturam et negotiationem exercendam, honeftaque indidem lucra percipienda. Quemadmodum verb in tot ejufmodi diverfis contrac- tuum generibus, fi fua cujufque non fervatur sequali- tas, quidquid p!us jufto recipitur fi minus ad ufuram (eo quod omne nmtuum tam apertum quam palliatum abfit) at certe ad aliam veram injuftitiam, reftituendi onus pariter afFerentem, fpeclare compertum eft ; ita, fi rite omnia peragantur, et ad juftitise libram exigantur, dubitandum non eft quin multiplex in iifdem contradlibus licitus modus et ratio fuppetat humana commercia et frucluofam ipfam negotiationem ad publicum commodum confervandi ac frequentandi. Nihil etiam decernimus modo de aliis contra£tibus, pro quibus theologi et canonum interpretes in diverfas abeunt fententlas .... Qui ab omni ufurae labe fe immuneset integros praeflare v(.lunt,fuamque pecuniam ita alteri dare, ut frucium legiiimum folummodo per- cipiant. APPENDIX. No. 1. 46^ ciplant, admonendi fiint ut contraclum inftltuendum antea declarent, et conditiones inferendas explicent, et quern fru6lum ex eadem pecunia podulcnt. Haec magnopere conferunt, non modo ad animi follicitudl- nem et fcrupulos evitandos, fed ad ipfum contra£lum in foro exteriorl corroborandum. H^ec etlam aditum intercludunt difputationibus, quce non femel conci- tandse funt, ut clare pateat utium pecunia, quse re6le data alteri efle videtur, revera tamen palliatam ufuram contineat. No. ir. 4^4 APPENDIX. No. 2. No. II. Part of the BREVE of Benedia XIV. dated 'jth September 1745J by ivhich he regulated the rate of Interejli for the money ivhich m'lght he bor- rowed by certain Corporations throughout the Papal dominions. \^\ e ftato referito da perfonne digne dc tutta fede, chc alcuni dc noftri fudditi nelle gravi auguflie, in cui n fono trovate le communita del noftro Stato Kccle- fiaftico, per I'ultimo pafiagio ed'accantonarnento delle truppe (Iraniere che in comminclo I'anno 1742 fcor- dati ad'ato dell' obligo^ die a ciafcuno impone la natura medefima, in vecc di follcvarc et foccoreve a tutto lor poterc lapatvia, ed il principato, traitte e iranfportati d' air ingordigia di vil guadagno, non anno avuto roflbre di opprimere, ed aggravare maggiormente !e ccmmuulta' di efib noflro State con ufure eforbitanti di cinque, fel, fette, e ancora otto, e nove per cento, abufando deU'eftremo bifogno, in cui elle eranodi trovar danaro -, anzi taluno di cili noftri fudditi rivolgendo la commune e publica calamita In prlvlato, e vergognofo mercimonio, aver prefo da altri danaro a minore in- terCiTe per poi dar lo alle fuddette communita a pia gravi e mr.ggiori ufurc. Q^indi e che volendo noi da un cauto comprimere la foverchia avidita di codero, ed ali'akro is gravare per quanto cl e poffibile le fuddette communita dall frierito ingiufto pefo. DI noftro moto proprio, certa fcienza e pienneza della noftro fovranna potefta. APPENDIX. No. 2. potefla, ordinlamo, e commandlamo che tuttl c fin- goli cenfe creati ed impofti oppur anche cambi, ed' altri debit! fruttiferi pafllmavente contratti dal giorno c tempo che intrarono le truppe eftere dentro confini dello noflro Stato Ecclefiaftico, da qualunque commu- nita e univerfita di eflb noflro Stato, comprefevi anche le quattro legazioni di Bologna, Ferrara, Romagna e d' Urbino, come pure tutti luoghi baronali (eccettuan- do folamente la legazlone d'Avignone e il diecato di Benevento) .... Sieno e s'intendano dal giorno d'og- gi In poi creati impofti e contratti alia foia ragione di Icudi quattro per cento, e non piu, come noi in virtu della prefente cedola di noftro moto proprio da ora in piu li reduciamo e moderiamo. 465 H h No. III. 466 APPENDIX. No. N°. III. Tufo Charters of Liberties and Privileges granted by King John to the Jexs in the Second Tear of his Reign (A. T). 12.01.) T •■' OHANNES, Dei gratia, ^c. " Sciatis nos con- ceflifle omnibus Judsis Angli?e et Norniania;, liber'. et honorifice habere refidentiam in terra nollra, et omnia ilia de nodris, et omnia ilia, quaf: modo ratio- nabiliter tenent in terris et feodis et vadils akatis fuis et quod habeant omnes llbcrtates et confuetudines fuas ficut eas habuerunt tempore pr^editti regis H. avi patris noftri meliiis et quietius et honorabillus, et fi querela orta fuerit inter Chrjflianum et Judseum, ille qui alium appellaverit ad querelam fuam dirationen- dam, habeat teftes, fcilicet legitimum Chriftianum et Judsrum. Et fi Juda^us de querela fua breve habuerii, breve fuum erit ei tetlis. Et fi Chriflianus habuerit querelam adverfus Judieum fit judicata per pares Judcei. Et cum Judieus obierit, non detineatur corpus fuum fuper terram, fed habeant homines pecuniam fuam et debita fua, ita quod mihi non diilurbetur, fi habuerit ha;redem qui pro ipfo refpondeat et re£lum faciat de debitis fuis, et de forisfafto fuo. Et liceat Judjeis omnia, qu?e eis apportata fuerint fine occafione accipere et emere, exceptis illis qux de ecclefia funt et panno fanguinolento. Et fi Judseus ab aliquo appel- latus fuerit fine tefte, de illo appellatu erit quietus fclo iacramento fuo fuper librum fuum, ct de appellatu illarum APPENDIX. No. 3. ^67 illarum rerum, quse ad cotonam noftram pertinent, fiml- litcr quietus erit folo facramento fuo fuper rotulum fuum. Et fi inter Chriftianum et Judaeum fuerit diflen- tio de accommodatione alicujus pecunise, Judseus proba- tu)Ti catallum fuum et Chriftianus lucrum. Et liceat Judseo quiete vedere vandium, poftquam certum erit, eum illud unum annum et unum diem tenuifTe. Et Judsei non intrabunt implacitum nlfi coram nobis aut coram illis qui curias noftras cuilodierint, in quorum baliivis Judsci manferint. Et ubicunque voluerint cum omnibus catallis eorum ficut res noilrae propria:, et nulli liceat eas retinere, neque hoc eis prohibere. Et pvcecipimus quod ipfi quieti fint per totam Angliam et Normaniam de omnibus coufuetudinibus et theoloniis et modiatione vini licut nollrum proprium catallum. Et mandamus vobis et prajcipimus quod eos cuftodia- tis et defendatis et manu-teneatis, et prohibemus ne- quis contra chartani iflam de his fupradidtis eos in pla- citum ponat fuper forisfadluram noflram, ficut eharta regis li. patris noftri rationabiliter teftatur. Tefte T. Humf. filio Petri com. Eflex. Williehno de Marefcal. com. de Pemb. Henr. de Eohun com. de Hereford. Robert, de Turnham,Wi!lie]mo Brywer &c. Stat, per jnanum S. Well, archidiac. apud Marleberg decimo di© Apriiis anno regni nolbi fccundo.* JOHANNES, Dei gratia, kc, Sciatis nos conce/Tifle et prxfcnti carta noltr^ confnradne Judaeis noftris in Anglia ut cxceffus, qui inter eos emerfcrint, exceplis lis qui ad coronam et juftitiam noftram pertinent et de mortc hominis et niaehmio, et dc aflaltu prcemedi- tato et de fra^lura domus et de raptu et de latrocinio ct de combuftione et dc thcfauris, inter eos deducan- H li 2 tut 468 APPENDIX Ko, 3- tvx fcctmduxn legem fuzna, et cmeutkntur, et juHitiam fuam inter felpfos £aciant. Concedlmus etiam els, quod fi quis eorum' allura appellaverit de querela, quse ad cos pertiueat, Nos neminem compelicmus ad tefliimonium cuiquam corum contra allum exhibcndum ; fed fi appel- lator rationabiicm et idoneum tellem habere poterk, cum fecum adducat. Si quod vero opus fceleratum et apcrtum inter eos enierferit, quod ad coronam nodram vel ad jullitiam perdneat, ficut de prsediftis placitis coronae licet nullus eorum nofter appellator fuerit, Nos ipfam querelam faeiemus per legales Judaeos noftros Angliae inquiri ficut charta regis H. patris noftri rationabiliter teflatur. Tefte G. filio Petri com. Eflex, Willielrao Marefchallo com. de Pembr. Hen, de Bohum com. de Hereford, Petvo de Pratell, Roberto de Turn- ham, Willielmo de Warren. Hugo de Nevil, Roberto de Veteri Ponte. Dat. per manum S. Well, archi- dhc. apud Merlebergj decimo die Aprilis anno re^iii ^•oflri fccundo. No. IV. APPENDIX. No. 4. 469 N°. lY. The Grant or Cbai-ier by which King John ap- pointed Jacob of London High Prieji of all the Jews in E?ig^and^ dated at Rouen y.Ji July, I Joan, {A. D. 1 1 99.^ within two Months after he afccnded the Throne. R .EX omnibus fidelibus fuis et omnibus et Judaels et Anglis falutem. Sciatis nos conceflifTe et prjcfenti charta noftra confirmafTe Jacobo Judseo de Londoniis prefbytero Judaeorum prefbyteratum omnium Judzeorum totius AnglicE, habendum et tenendum, quamdiU vix- erit llbere et quiete et honorifice et integre, ita quod nemo ei fuper hoc moleftiam aliquam aut gravamen in- ferre' pr^efumat. Quare volumus et firmiter przecipi- mus, quod eidem Jacobo, quoad vixerit prefbyteratum Judoeorum per totam Angliam garantetis, manutenea- tis, et pacifice defendatis. Et fi quis ei fuper eo foris- facere priefurapferit, id ei fine delatione (falva nobis emenda noflra) de foris-fa6luia noftra emepdari faciatis tanquam dominico Judxo noftro, quern fpecialiter in Jpjrvitio noftro retinuimus. Prohibemus etiam ne de aliquo ad fe pertinente ponatur in placitum, nifi coram nobis, aut coram capitali jufticiario noftro, ficut charta regis Richardi fratris noftri teftatur. Tefte S. Ba- thonienii epifcopo. Sec. Dat. per manus H. Cantua- rlenfis archiepifcopi cancellarii noftri apud Rothoma- gum, 31 die Julii anno regni noftri prime. H h 3 N°. V, 470 A P P E N D I X. No. 5, NO. V. 'The Statute de Judaifmo as tranjlatcd by William Frynnc. !• Jp OR that the King hath feen, that many mifchicfs and difherifons of honeft men of this land have hap- pened by the Ufuries, which the Jews have made therein in times paft and that many fins have therein rifen from thence, albeit he and his anceftors have liad great profit from the Jews both now and in time>< paft : notwithftanding this for the honour of God and for the common benefit of the people, the King doth ordain and eftablifh, that no Jew hereafter fiiall take QUght for Ufury upon lands rents nor upon otlier things ; and that no Ufury (hall run from the feaft of St. Edward laft paft and before j but that the cove- nants before made (hall be -held, fave only that the Ufuries themfelves fliali ceafe. Provided that all thofe who are indebted to Jews upon pawns moveable fhall difcharge between this andEafter at furtheft j and if not, let them be forfeited. And if any Jew fhall take Ufury againft this eftablifliment, the King neither by himfelf nor any of his officers will not intermeddle to caufe him to recover his debt (or ufe} but will punifli him at his pleafure for the trefpafle,'and fliall do right to the Chrif- tian ro recover his gage. 2. And it is provided that the diftre.Tes fcr the debt of Jews fliall not hereafter be fo grievous, that the moiety of lands and chattels to the Chriftians ihall not remain for their fuftenance. And that no diftrefs fliall be APPENDIX. No. 5. ^71 be made for the debt of a Jew upon tlic heir to the debtor named in the charter of the Jew, nor upon other which holds the land which was the debtor's, before the debt fliall be dereigned and acknowledged in Court. And if the fherifFor other bailiffs by commandment of the King ought to make feizin to a Jew, to one or more, for their debt, of chattels or of lands to the value of the debt, the chattels fliall be praifed by the oath of honed men, the chattels fliall be delivered to the Jew or Jeweffe or to their attorney to tlie value of the debt. And if the chattels be not fufficient, the lands fliall be extended by the fame oath, before that the fuifni fliall be delivered to the Jew or Jewefle, every one accord- ing to the value : and fo that they may after know cer- tainly the debt is difcharged, that the Chrift:ian after- wards may then have his lands : faving to the Chrillian for ever the moiety of his lands, and of his chattels for his fufl;enance as afore is faid, and the chief houfe. 3. And if any thing fliolen at this hour {hail be found in the pofleflion of a Jewj and any will fue, let the Jew have his fummons, if he may have it ; and if not he fliall anfwer fo, that he fliall never be privilcdged for it otherwife than a Chriftian. 4. And that all the Jews fliall berefidents in the cl- ,tles and in the boroughs, which are the King's own, where the cheft for the Jew's indenture is wont to be. And that every Jew after he is pafl: feven years of age fliall carry a fign or badge in his chief garment ; th.it is to fay in form of two talles of yellow taffety, of the length of fix fingers, and breadth of three fingers (or handfuUs). And that every one after he is paft twelve years fliall pay three-pence the poll every year to the H h 4 King, 472 A P P E N D I X. No. t;. King, which {hall be paid at Eafler ; and this fhall be intended as well of women as of men. 5. /'. nd that no Jew (hall have power to infeofF anotlicr Jew nor Chriftian of their houfes, rents or te- nements, which they have now purchafed nor to alien them in any manner, nor to make an acquittance to any Chriftian of his debt, without the fpecial licenfe of the King, until the King hath otherwife ordained. 6. And becaufe Holy Church wills and fufFers, that they fhould live and be protedled, the King takes them into his protedlion, and gives them his peace, and wills, that they (hall live, and fliall be guarded by his (herifFs, and his other bailiffs, and by his lieges •, and commands that none (hall do them harm, injury, nor force in their bodies, nor in their goods, moveables, or immoveables. And that they fhall not be impleaded fued nor chal- lenged in any court but in the King's Court wherefoever they are. 7. And that none of them fhall be ebedient refpon- dent nor render rent, but to the King, and his bailifi's in his name, if it be not of their houfes, which they now hold rendering rent, faving the right of Holy Church. 8. And the King grants them, that they fl^all live in their lawful merchandizes, and by their labour, and that they fliall converfe with the Chriflians for lawful mer-; chandizing in felling and in buying. But yet that by this priviledge nor any other, (hall they be levant (rifing) or couchant (lying down) ambngft them. And the King will not, that by reafon of their merchandize, that they fhould be in lots nor fcots, nor tallage M'ith thofe of the cities or boroughs where they remain, feeing they 5 arf APPENDIX. No. 5. are tallable to the King as his own vafTals, and to none other. 9. Moreover the King grants them that they may buy houfes and curtelages in the cities or boroughs where they refide, fo as they hold them in clnef of the King ; faving to, the lords the feivices due and uccuf- tomed. 10. And that they may take lands to farm for terrn of fix years, or under, without taking homages or feal- ties or fuch manner of fervice of a Chriftian, and with- out having advowfon of Holy Church, for to fupport their life in the world, if they know not how to merchan- dize, or be unable to labour. And this power for to take lands to farm fhall not endure to them but iifteen years from this time forth to come. 473 N^. Y\. 4^4 APPENDIX. No. c'. N^. VI. A Writ of Safe ConducI io the Jcivi ordered into Banijhment \Uh ju'y^ 18 Ed. I. {A. D. 1290), XvEXVic.G. CumJudselsregninoflriunlverGsccrtum tempus pr^fixerimus a regno illo transfretandi: nokntes <]uod ipfi per miniftros noftros aut alios quofcunque, aliter quam fieri confuevit indebite pertve£lentur : tibi prscipimus, quod per totam balllvam tuam, publice proclamari et firmiter inhiberi facias, ne quis eis intra terminum priEdi£lum injuriam, molefliara, damnum inferat feu gravamen. Et cum contingat ipfos cum cn- tailis fuis, qu22 eis conceffimus, verfus partes London, causa transfretationis fuxdirigere greiTus fuos, falvum et fecurum condu£tum els habere facias fumptibus eo- Tum. Provifo, quod Jud?ei prsdicli, ante recelTum fuum, vadla Chriftianorum qufe penes fe habent, iljis quorum fuerint, fi ea acquitare voluerint, reftituant, ut tenentur. Tefte Rege apud Weftminft. 18 die Julft »nno 18 Ed. I. N°. VII. APPENDIX. No. 7. No. VII. // Parliameniary Record by ivhich the Prior of Bridlington zucrs ordered to pay 30c/. to the Kifig which he owed to a 'Jew before their Exile. 21 Ed, L {A, D. 1293). 475 E »T quod prosdlclus Prior cognofcit quod prcedicla pe-» cunia prted. Judxo debebatur, viz. 300I. nee ei folveba- tur ante exilium Jud^t'orum ; et quicquid remanfit reo- rum debitis aut catallis in regno pofl eorum exilium Do- mino Regi fuit : confideratum eft quod Dominus Rex recuperet pecuniam pr?ediclam : et diclum eft eldcm Priori, quod non exeat villa antcquam Domino Regi de praedi£la pecunia fatisfaciat. Et refpondeat johan- ues Archiepifcopus Eborum, quia prcccepit diclo Priori folvcre valetto fuo prxdi^am pecuniam in deceptio- nem Regis, contra facramentum et fidelitatem fuam Domino Regi datam. (Idem in alio Rpt. an. 22 Ed. I, ^ot. 5)0 N°. VIII. ^7^» A P P IL N D I X. No. &. N". viir. Froinjimes de Merlon, ccp. 5, JL_/IKEWISE it is provided ?.r.d granted by the King ihat from henceforth Ufuries fliall not run againft any being within age from the time of the death of his an- ceftor (whofe heir he is) unto his lawful age ^ fo nc-^^i- thelefs that the payment of the principaldebt with the IJfury, that was before the death of his ancellor (whofe Jieir be is} fliall not remaitv. K°. LX. P P E N D I X. No. 9. ^^y N«. IX, An AEl againjl Chevlzaiue and Vfrrj. 3 Hen. VIL c. 5. iTEM, for as much as importable damage lofs aiiil impoverifhing of this realm is had by damnable bargains grounded in Ufury coloured by the name of New Che- vifance contrary to the law of natural juftice, to the com- mon hurt of this land, and to the great difpleafure of God Our Sovcreigne Lord the King, for the reformation thereof and of all corrupt and unlawful bargains by the afientof the Lords fpirltuaiand temporal and the Com- mons in his faid parliament alTembled and by authority of the fame hath ordained and ena£led, That if hereafter any bargaine covenant by buying of any obligation bill or any pledges put into furetie, or by bill or otherwife by the name of dry exchange or otherwife whereby any -certain fum Ihall be loi^; ior any coi'enant or promife be- tween any perfon or perfous by themfelvcs cr any other to their knowledge v^- ithin this realme or if any bargain or loan whereby any of the party fljould lofe or pay for any fum certain : that is to fay for having an lool. in money or merchandize or otherwife and therefore to pay fix fcore pounds or more or lefs in and for any more or lefs fumme after any niancr rate, that all fuch bargaint covenants promife and fureties therefore made and ^U things thereof depending bee utterly voyde and of none effect. And over this it is ordained by the fame autho- rity that if any merchandize obligations billcs or plate be 478 APPENDIX. No. 9. be promifed to be delivered upon fucK corrupt bargain and delivered, or delivered and had again to him that ought fuch merchandizes, obligations bills or place or knowetPi by any other man by afient agreement or knowledge in any manner forme of him or his fa£i:or, or broker that fuch merchandizes ought or privie to fuch bargaines, that all fuch bargaines, covenants, pro- mifes, and all fureties therefore made be utterly voyde- And the feilcr owner bargainer or promifer of fuch cor- rupt bargaines or goods, fliall lofe for any fuch bar- gaine made by him or his faclour lool. And whof- ever will fue therefore to have an action of debt : in which the party ihall not wage his lawe, the King tc7 have the one halfe, and he that will fue the other half. Andforafmuch as thefe corrupt bargaines be moil ufually had within cities and burroughs having authority to trr all matters and caufes growen and had within the faid cities and boroughes : and if at any fuch defaults, (hould there bae tryed, perjury by likelineiTe thereby fhculd grow and little of the premifics to be founde. There- fore it is ordeined by the faid authoritie that as well the Chancellour of England for the time being, have au- ihovlty and power to examine i.!l manner corrupt bar- gains promifes lones or fales growen and had of any of the premifes, and thereupon by examination to heare raid determine the fame, and to give like judgment and make like execution thereof as the matter were tryed and found at the parties fuit, in any fuch aflion of deb: by the courfe of the common law as the Juftices of the Peace of any {hire next adjoining to any citie or burroagh where fuch defaultes be of any of the premifes. And they to make like procefs againft any man thereof en- dyted afore them of any of the premifes, as they {hould or APPENDIX. No. 9. ^jg or ought to doe againft any man that were endyted afore them of any riot or trefpafle and to determine it. And •If any man be found guilty afore them of any of the premifes to forfeit the aforefaid peine of iccl. refervino- ?o the Church (this punifhment notwithftanding) the c.'frrcction of their foulh according to the laws of the time. N°. X. 48o APPENDIX. No. i6. N°. X. ^n /icl concerning Exchange and Re-change Che^ 'ui-x.ance Ufury and Brokers. 3 Hen. VII. c. vi. Item, forafmuch as there liatli growen and daily groweth great difpleafure of God, and great hurt of the King our Sovereigne Lord, and to this his realme by and for the inordinate changes and re-changes that have been of long time ufed and vet continued in this faide reahne without authoritie given of the King to fuch changing and re changing. For remedie whereof many noble ftatutes againft the fame made whereof one fpecial flatute was in the xv. yere of King Edward the Third made for the fame remedie and in Henry the Fourth Henrie the Fifth and in Henry the Sixth days ; wherefore the King our Soveraigne Lord will, that all fuch ftatutes be put in due execution from henceforth. And that no man make any exchangc^ without the King's licenfe, ne fhall make any exchange or re change of m.onty, to be paved within this land but only fuch as the King fiiall depute thereunto to Iceepe make and anfwer fuch exchanges and re-changes, upon the peines in the fame Statute of King Richard conteined. And over that it is ordeined by the King our Soveraigne Lord by the aflent of the Lords fpiritual and tcmporall and Commons in his faid parliament af- lemblcd and by authoritie of the fame that all unlawful Chevifances and Ufury be darnpned and none to be ufed, upon peine of forfeiture of the value of the money or goods fo chevifed or lent the fame forfeiture to run on the APPENDIX. No. 10. the feller and lender thereof. Alfo forafmuch as di- vers Engllfh and eftrangers brokers, which be named and affigned to occupy lawful brokages be inducers and bargain-makers of unlawful Chevlfance and Ufury and in fome part of unla'vful Exchanges to the hurt of our faid Soveraigne Lord and this his faid realme : there- fore it is enacfled and eftabliflied by the faid authoritie, that all fuch brokers dealing unlawfully of any of the premifes be put apart and never to occupie as brokers within this his realme as they may be efpied and found in cities boroughes and townes, by maiors baylifFes or any of them or of their minillers where fuch bargaine is ufed. And that every broker that is found defedlive in making of unlawful brokage, (hall forfeite for every defaulte 2ol. and have imprifonment of half a yere. And furthermore to be puniflied by the pillorie or otherwifc to their open rebuke and fliame, the King to have the one halfe of every of the faid forfeitures, and the partye that will fue, the other half of the fame, by acSlion of debt by the common lawe and the defendant in the fame adllon bee not admitted to his lawe nor fffoine nor proteiflion be for the fame defendant al- lowed. 4S1 I 1 N°. XL 4*:2 APPENDIX. No. II. N^ XL An Ad for repealing the '},d of Henry VIL and mdking more effectual Provfion againji Ufury. iit'j Hen. FJI. c. viii. \ RAIEN the Commons in tlil'^ prefent parliament aflemblcd, that wherein the parliament holdcn at Weftminller the third yeere of your mod noble reigne, it was enacled ordained and eftablilhed, that of for and upon bargaines grounded in Ufury coloured by the nieanes of new chevefaunce or exchange contrary to the law of natural juRice to the great difpleafure of God and our faid Soveraigne Lord and the common hurt of this his land, that certaine punifhmentsand pe- nalties fliould runne upon the offenders in that behalf, as in the faid Acl more at large is contained, which A6t was and is fo obfcured dark and defufe, tluit the true intent of the makers thereof cannot perfitely be under- ft'ood; wherefore and for the plain explanation and de- claration of Ufury and penalties to be hereafter exe- cuted upon the offenders in the fame : the King our foveraigne lord by the aflent and advice of the Lords fpiritual! and temporall and the Commons in this pre- fent parliament afl'embled and by aut'noritie of the fame ordaineth ena£teth and eftabllflieth, that all manner of perfon or perfons lending money to and for a time, taking for the fame lone any thing more befides or above the money lent by way of contratl of covenant at the tuv.e of the fame lone, f.iving lawful penalties for non- APPENDIX. No. II. 48 J non-paiment of the fame money lent, and that all man- ner of perfon and perfons which hcereafter fell any goods cattels or merchandizes to any perfon or, perfons being in neceflltie, and the feller himfelf or by his broker or fa£lor in that behalfe againe buy the fame goods cat- tels or merchandizes of the fame perfon, to whom they were fold bei:ig in neceflity of his broker or faclor in that behalf within three months after they be fold for a lefs fum of money than they were fold for, knowing the fame goods fo bought again afore by the fame buyer or buyers to be fold after the form aforefaid : and that every perfon and perfons lending or taking any money to any perfon or perfons to a certain time, and taketh lands tenements or any hereditaments or other bonds for perfite furetle and fare payment of his or their money lent at the time adlgned, without condi- tion or adventure : and alfo at the time X)f the fame loan or taking of th.^ faid money covenanteth appolnt- eth or contra6leth, covenanten appointen or contraclcn, that he or they that lend or take money, fhall h.ave the revenues and profites of the lands, tenements or heredi- taments of him that fo borrowcth or taketh money by a certain time : that then every perfon heereafter upon any of the premifles convicled, forfeite the moiety of the value in money of the faid money goods cattels merchandizes, as is above faid, fo fold or lent rfter fuch value as they have been fold or lent for after any forme aforefaid, whereof the King (Ivdll have the one moiety of the fame forfeiture and tlic party that will fue the other moiety; and if no man will fue then the King to have the whole. And this fute for the faid penalty and forfeiture to be as well at the King's fute aa any other, that will fue by infornvailon in any of the i''ang's Courts J i / uf APPENDIX. No. 1 1. of Record, and fuch procefle to be hnd in the fame as is ufed in other adlions of debt at the common law in the fame Courts. Provided al.wais that in the Courts of Chauncerie and Efchequer they fliall make fuch procefle as hath been ufed afore time in informations afore them commenced, wherein tlie defendant fliall not wage his law nor protection ne ejTo'uie de feridce le Roy in the fame allowable. And that the fame A6t and Or- dinance made the faid third yere and all things therein contained, be from henceforth utterly void and of none effect, referving alway to the Spiritual Jurifdidion their lawful punifliments in every caufe of Ufury. N^ XJf. APPENDIX. No. 12, 48 N°. xn. A Bill againjl Ujury. ^7 -^^^^0' ^^^^' ^' ^^' VVHERE before this time divers and fundry Acls Statutes and Laws have been ordained had and made within this realm, for the avoiding and punlfhment of Ufury, being a thing unlawful, and of other corrupt bargains fliifts and chevizances (2) whicli Adls Statutes and Laws been fo obfcure and dark in fentences words and terms and upon the fame fo many doubts ambigui- ties and queflions liave arifen and grown and the fame A£ls Statutes and Laws been of fo little force or effe£l, that by reafon thereof little or no punifhmenc hath en- fued to the offenders of the fame but rather hath en- couraged them to ufe the fame. (3 ) For reformation whereof be it enacted by the Lord our Sovereign Lord by the aflent of the Lords Spiritual and Temporal and of the Commons in this prcfent parliament affembled and by the authority of the fame, that all and every the A6ts Statutes and LaM'S heretofore made of for or con- cerning Ufury fliifts corrupt bargains and chcvifances and every of them, and all pains forfeitures and penal- ties concerning the fame and every part thereof Ihall . from hencefortli be utterly void and of none effect to all intents conftructions and purpofes. n. And be it further enaaed by the authority afore- faitl, That no perfon or perfons of what eftate degree or condition foevcr he or they be, from and after the ia(t day of January next coming flrall by himfclf fa£tor I i 3 attorney 486 APPENDIX. No. 12. attorney fervant or deputy fell his merchandlfes or wares to any perfon or perfons and within three months next after by himfelf fadlor attorney deputy or by any other perfon or perfons to his ufc and behoof buy the fame merchandizes or wares or any part or parcel thereof up- on a lower price, knowing them to be the fame wares or merchandizes, that he before did fo bargain and fell upon the pains and forfeitures hereafter limitted in this eilatute. III. And be it alfo enacled by the fame authority, That no perfon or perfons of what eftatc degree qua- lity or condition foever he or they be at any time after the faid laft day of January next coming by way or mean of any corrupt bargain loan efchange chevifance fhift intereft of any wares merchandizes or other thing or things whatfoever, or by any other corrupt or deceit- ful way or means or by any covin engine or deceitful way or conveyance Ihall have receive accept or take in lucre or gains for the forbearing or giving day of payment of one whole year of and for his or their mo- ney or other things, that fhall be due for the fame wares merchandizes or other thing or things above the fum of ten pound in the hundred, and fo after that rate and not above of and for a more or lefs fum or for a longer or (liorter time, and no more or greater gain or fum thereupon to be had upon the pains and forfeitures hereafter in this A61 mentioned and contained. IV. And be it further ena£led by the authority afore- faid, That if any perfon or perfons at any time after the faid laft day of January do bargain and fell, or lay to mort- gage by anyway or mean any manors lands tenements or hereditaments to any perfon or perfons upon condition of payment or non-payment of any fum or fums cf mo- ney APPENDIX. No. 12. ney to be had paid or made at any day certain, or "be- fore any fuch day by him, that (hall fo bargain fell or lay to mortgage the fame manors lands tenements or hereditaments, that the fame perfon or perfons, towhom any fuch manors lands tenements or hereditaments {hall hi fo bargained fold or laid to mortgage, fliail not by reafon thereof have nc take in lucre or gains of the iflues revenues and profits of the fame manors lands te- nements or hereditaments above the fum of ten pounds in the hundred for one whole year, and fo after the rate above fald for a more or lefi'er fum or for a longer or fhorter time and no more nor otherwife, upon pains forfeitures and penalties hereafter i:i this prefcnt elta- tute limitted and expreffed. V. And be it further enabled by the authority afore- faid, That if any perfon or perfons, of what eftate degree quahty or condition foever he or they be, at any time af- ter the faid lall day of January next coming fliall do any acl or acls thing or things contrary to the tenor form and efFe6l of this eftatute, or of any claufe article or feiitence contained in the fame, that then all and every offender and offenders therein or in any part thereof fliall forfeit and lofe for every fuch offence the treble value of the wares merchandizes and other thing or things fo bargain- ed fold exchanged or fliifted, (2) and the treble value of the iffues and profits of the faid manors lands tene- ments and hereditaments fo had taken or received by reafon of any fuch bargain fale or mortgage, (3) and alfo fhall have and fuffer imprifonment of his body and make fine and ranfom at the King's vill and pleai'.ire ; (4I the moiety of which forfeiture of the faid treble value fhall be to the King and the other moiety to him or tjiem, that will fuefor the fame in any of the King's I i 4 Courts 487 488 APPENDIX. Ko. 12. Courts by a£bion of debt bill plaint or informatior, In which ailion bill plaint or information no wager of lawefToin or prote£\ion fhall be admitted or allowed. VI. Provided alway and be it enacted by the autho- rity aforefaid, That this A£t nor any thing therein con- tained fhall not in any wife extend to any lawful obli- gation indorfed with a condition, nor to any ftatute or recognifance made and to be made for the payment of a lefTer furn, fo that the fame obligation ftatute or recog- nifance be made for a true juft and perfeft debt, or for the performance of any other true covenants made or to be made upon a juft and true Intent had between the parties, other than in cafes of Ufury intereft corrupt bargains (hifts or chevifance, ne yet fhall extend to any recovery fine feoffment releafe confirmation or grant made or to be made upon condition with a true intent, other than to fuch reco\eries fines feoffments releafes confirmations and grants, as fhall be made upon condi- tions extending to Ufury intereft corrupt bargains fhifts or chevifance, any thing in this ftatute contained, or any law ftatute or ordinance heretofore had ufed or made to the contrary notwithftanding. No. XIII. APPENDIX. No. 13, 489 No. XIII. An Ad againjl Ufury. 5 and 6 Ed. VI. cb. xx. W HEREIN the feven and thirtieth year of the rcigne of the late King of famous memorie King Henry the Eight father to our Sovereign Lord the King, that now is, amongft other A£ls and Statutes then made it was enacted by the authority of parliament, that no perfon or perfons at any time after the lafl day of January in the faid feven and thirtieth year, fhould have, receive, accept or take in lucre or galnes for the loan, forbear- ing or giving day of payment of any fum of monie for one whole year above the fum of ten pound in the hun- dred, and fo after that rate and not above, of and for a more or lefs fum or for a larger or fhorter time, upon the paines and forfeitures in the faid Acl mentioned and conteined. The which A^ was not ment or in- tended for the maintenance and allowance of Ufury as divers perfons blinded with inordinate love of them- felves have and yet do miflake the fame^ but rather was made and intended againll all forts and kinds of Ufuric as a thing unlawful, as by the title and preamble of the faid Acl it doth plainly appear, and yet neverthelefs the fame was by the faid A6t permitted for the avoiding of a more evil and inconvenience, that before tiiat time was ufed and exercifed. But for.ifmuch as Ufurie is by the word of God utterly pro'iibited as a vice moll odious and deteftable, as in divers places of the Holy Scriptures it is evident to be fcen, which thing by no goJl/ 49^ APPENDIX. No. 13. godly teachings and perfuafons can fink into the hearts of divers grcedie uncharitable and covetous perfons of this realme, nor yet by any terrible thrcatnings of God's wrath and vengeance, that juflly hangeth over this realme for the great and open Ufurie therein dayly ufed and practifed, they will forfake fuch filthy gain and lucre, unlefs fome temporal puniO-iment be provided and ordeincd in that behalf. For reformation whereof be it enabled by tlie authoritie of this prefent parlia- ment, that from the firit day of May, which (hall be in the yeere of our LordOi God 1552, the faid A€i and Statute concerning only Ufury lucre or gaines of or for the lone, forbearing, or giving days of anyfum or fums of money be utterly abrogated, void, and repealed. And furthermore be it enabled by the authoritie aforefaid, That from and after the faid firft day of May next coming no perfon or perfons of what eftate, de- gree, quality or condition foever he or they be by any corrupt colorable or deceitful conveyance flight or en- gine, or by any way or mean fliall lend give fet out de- liver or forbear any fum or fummes of monie to any perfon or perfons or to any corporation or body poli- ticke to or for any manner of Ufurie increafe lucre gaine or intereft to be had received or hoped for over and above the fum or fummes fo lent, given, fet out, delivered or forborne upon pain of forfeiture of the value, as well of the fum or fums fo lent given fet out delivered or forborne^ as alfo of the Ufurie, increafe, lucre, gain, or intercfl thereof. And alfo upon pain of im.prifonment of the body or bodies of every fuch of- fender or offenders, and alfo to make fine and ranfom at the King's will and pleafure. Tlie moietie of which forfeiture APPENDIX. No. 13. ^ni forfeiture of the faid value {hall be to the King, and the other moiety to the party, that will fue for the fame in any of the King's Courts of Record by aQion of debt, bill, plaint, or information, wherein no wager of law, efToine or protedlion Ihall be allowed or admltteu. No. XIV. 492 APPENDIX. No. 14. N^. XIV. An Act againjl Ufury. 13 Eliz. cap. viii. Whereas in the parliament holden the feven and tliirtiPth year of the reign of our late Soveraign Lord ]ving Henry the Eighth of famous memory, there was then made and eflabUfhed one good Acl for the refor- mation of Ufury, by which Acl the vice of Ufury was well repreiled, and fpeciallythe corrupt chevifance and bargaining by way of falc of wares, and fhifts of in- tereft. And where fmce that lime by one other Adi made in the fifth and fixth years of the reign of our late Soveraign Lord King Edward the Sixth, the faid former A£l: was repealed, and new provifoes for repreff- ing of Ufury devifed and ena£}:ed : wdiich faid later A6t hath not done fo much good as was hoped it fhould, but rather the faid vice of Ufury, and fpecially by way of fale of wares and fliifts of intereft, hath much more exceedingly abounded, to the utter undoing of many gentlemen, merchants, occupiers, and others, and to the importable hurt of the common-wealth, as well for that in the faid later A61: there is no provifion againft fuch corrupt fnifts and fales of wares, as alfo for that there is no diflerence of pain, forfeiture or punilli- r.ient, upon the greater or lefler exactions and oppref- fions by reafon of lones upon Ufury. Be it therefore enacted, That the faid later Statute made in the afch and fixth years of the reign of King Edward the Six*h, and every branch and article of the famcj APPENDIX. No. 14. fame, from and after the five and twentieth day of June next coming, fhall be utterly abrogated, repealed and made void : and that the faid late A£t made in the faid fevcn and thirtieth year of King Henry the Eighth, from and after the faid five and twentieth day of June next coming fliall be revived, and fland in full force, Itrength and effei!!:. And be it further enacted, That all bonds, contracts, and allurances collateral or other to be made for pay- ziient of any principal or money to be lent, or covenant to be perf"ormcd upon or for any Ufury in lending or doing of any thing againfl the faid A(ft now revived, upon or by which lone or doing there fhall be referved or taken above the rate of xli. for the hundred for one year, fhall be utterly void. And be it further enatled, That all brokers, foiici- tors, and drivers of bargains for contractc or other do- ings againit the faid Statute now revived, whereupon fliall be referved or taken more thau after the rate of ten pound for the lone of one hundred pound for a year, fnall be to all intents and purpofes judged, punilli- ed and ufed as Councellors, Attorneys or Advocates, in any cafe oi pratnumre. And forafmuch as all Ufury, being forbidden by the law of God, is fin and deteftable : be it enr.ded. That all Ufury, lone, and forbearing of money, or giving dayes for forbearing of money, by way of lone, chevi- fancc, fhifts, fale of wares, contracts, or other doings whatfoever for gain mentioned in the faid Statute, wliich is now revived, whereupon is not referved or taken, or covenanted to be referved, payed, or given to the lender, contracler, fliifter, forbearer, or deliverer, above the fum of ten pound for the lone or forbearing of a I lunulred 493 494 A P P E N D I X. No. 14. hundred pound for one year, or after that rate for a more or lefler fum or tune, fliall be from the five and twentieth day or June next coming, puniflicd in form following } that is to fay, that every fuch offendor againft this branch of this prefent Statute, fliall forfeit fo much as fhall be referved by way of Ufury, above the |)rincipal for any money fo to be lent or forborn. All fuch forfeitures to be recovered and employed, as is li- mited for forfeitures by the faid former Statutes now revived. And be it further ena£led, That Juflices of Oyer and Determiner, and Juflices of Affife in their circuits, Juf- lices of Peace in their felTions, Mayors, Sheriffs, and BaylifFs of cities fhall alfo have full pov/er and autho- rity to enquire, hear and determine of all and fingular offences committed againft the faid Statute now re- vived. And be it further enabled, That the faid Statute now revived fliall be moft largely and flrongly conflrued for the repreffing of Ufury and againft all perfons, that fliall offend againit the true meaning of the faid Statute by any v/ay or device direclly or indiredlly. Provided alway, that this Statute doth not extend, nor fhall be expounded to extend unto any allowances or payments frr the finding of orphans, according to the antient rates or cuftoms of the city of London, or any other city where like order is for the cultody of or- phans and their goods, as is in the faid city of London. Provided alwayes, and be it furtlier ena<51ed by the authority aforefaid, That if any perfcn or perfons, fliall from and af.er the faid five and twentieth day of June offend contrary to the faid Statute revived by this pre- fent Act made in the fcven and thiitieth year of the reign APPENDIX. No. 14. 455 reign of die faid late King Henry the Eighth: that then all and every fuch ofFeudor and offendors (hall and may alfo be puniflied and corrected according to the Eccle- fiaftlcal Lawcs heretofore made againfl. Ufury. And that all and every perfon and perfons offending in Ufury, (hifts, or chcvifance ag.unil this prefent Acl, and not taking or receiving but only after the rate of ten pounds in the hundred or under, for a year, ihall be only puniflied by the pahis and forfeitures provided and appointed by this A61, againft fuch as fhall not take or receive over and above the rate of x li. in the hundred for a year, and not otherwife. This Acl to continue and endure for and during tlie fpace of five years next after the end of this prefent Parliament, and from thence unto the end of the firfl: Sefhon of the Parliament then next enfuing. And be it further enadted by the autliority aforefald. That if this prefent A61 fhall not be continued in the firft Scfhon of the Parliament next enfuing the faid term of five years, and then in the fame felTion no other Statute or provifion made againfl Ufury or cor- rupt clievifance : that then all and every the Eaws and Statutes repealed by this A£l, ihall remain and be of fuch like force and effedV, as if this prefent Adl had never been hud, ne made. K°. XV. 49i . N^ XXI. A B I L L To Regulate J?2nmties for Lives prefented to the Houfe of Commom by Mr. Bacon ipb May 1777 tvbich only went to the fccond Reading, V\' HERE AS the raifing of money by the fale of Life Annuities hath a tendency to evade the provifions of the Statutes made againft Ufury, it being generally underftood, that the fum advanced as the purchafe- money may be repaid and the annual payments being fo large in proportion to the fum advanced as to af- ford after dedu6ling an adequate price for the infur^.ncc an exorbitant interefl : And whereas by fuch dealings not only many perfons are reduced to ruin, but the fair loan of money at the interefl allowed by Law to perfons engaged in the various purfuits of ufeful induftry is greatly obftru^led : Seel. I. Be it enatled by the King's men: excellent Majefty by and with the advice and confcnt of the Lords Spiritual and Temporal and Commons in thU prefent Parliament aflcmblcd and by :hc autl-.ority of tlie fame, That if upon any contract for the purchafc of any Annuity or Rent Charge for the life of the grantor, or for lives of which the grantor fliall be one, or for any term of years or greater eltatc determinable on the life of the grantor, or on lives of which the grantor fliall be one fliall be made after the UiC luai to be paid in each year Ihali 527 ^28 ^PPENDIX. No. 21. fhall exceed the intercfl: after the rate of for every liundred pounds of the money actually ad- vanced as the confideration of granting the fame, und fo in proportion for a greater or lefler fum together ■with the fum hereinafter fpecified as a confideration for the rific of the life, on which the fame (hall be granted, every fuch contract and tlie deeds bonds and afTurances fhall be deemed adjudged and taken to be and the perfon or perfons receiving or taking upon fuch contracts a greater fum than as aforefaid fhall be fubjedl and liable to the penalties and provifjons here- tofore made and enadled againfl; Ufury by any Statute now in force. Se£t. 2. And be it furtlier enacted, That it fhall and may be lawful to referve and take as a confideration for the rifle of the life of any perfon being above the age of years and under the fum of and no more in each year for every hundred pounds of the money advanced and for the rifk of the life of any Ik perfon being above the age of years and under the age of and no more in each year for every hundred pounds advanced, and for the rifk of the life of any perfon being above the age of years and under the fum of and no more in each year for every hundred pounds advanced, and for the riik of the.life o^ any perfon being above the age of years and under the fum of . and no more in each year for every hundred pounds ad- vanced, and for the riik of the life of any perfon being above the age of years and under the fum of and no more in each year for every hundred pounds advancoii, and for the riik of the life A P P E N D I X. No. 21. life of any perfon being above the age of years and under the fum of and no more in each year for every hundred pounds advanced, Se£l. 3. Provided always^ and be it further ena£lcd, That nothing herein before contained (hall extend or be taken to extend to the grant of any Annuity upon the fingle hfe of any perfon in his Majefly's fea or land- fcrvice or who at the time of granting the fume (hall be about to go to any part of Afia Africa or his Ma- jefty's Weil Indian iflands and fhall adlually depart for the fame within from the time of the grant. Se£l. 4. And be it further ena£lcd, That every An- nuity for the life of the grantor or for lives, of which the grantor fliall be one or for any term of years or greater eftate determinable on the Hfe of the grantor or on lives, of which the grantor fliall be one already granted or hereafter to be granted (hall and may be redeemable by the grantor giving months notice on payment of the fum actually and houci fide advanced as the confidcration of granting the fame with all arrears of the Annuity incurred due at the day of payment of the principal fum. Seo years is 141L And the rate of infurance has been 3L los. Mr. Baldwyn informed your Committee, That he had calculated the duration of rlie lives iuTured at that Office for the laft twelve years •, and that one lite with another it amounted to nineteen years. Mr. William Morgan acluary to the Society of Equi- table Aflurances on Lives and Survivorfliips near Black- friars Bridge, eftablifhed in 1762 by deed of fettlement inrolled in the Court of King's Bench, upon the fame plan of the Union Firc-OlFicc, informed your Commit- tee, That every member becomes an infurer and an- fwerable ; if the premiums fhould not be fuflicient to anfwer the claims, every member is liable to be called upon in proportion to the fum he had infurcd, if tlierc is a call •, the prcfus are to be divided amongft the members in the fame proportion ; but it is their in- tention in future to lower the premiums and to return to the pvefent members the difference between the prefent premium and the future premium. — Tlicy in- curs any fum from 2oI. to 2000I. for one hfc and any 537 53» APPENDIX. No. 21. age from eight to fixty-feven. They likcwife Infurc upon furvivorfhips. The mean rates of aflurance on fingle lives in the Equitable Society, are at prefent, ANNUALLY. ANNUALLY. From the Age of For one Year. For fevcn Y ears. Fo r Life. 20 to 25 L. 2 L. 2 3 L.3 5 6 25 to 30 2 5 2 8 3 12 6 30 to 35 2 11 6 2 16 4 2 6 35 to 40 2 ^9 3 5 4 10 6 40 to 45 3 II 3 ^8 6 5 3 45 to 50 4 7 6 4 16 6 6 50 to S5 5 4 6 5 15 6 6 15 55 to 60 6 4 6 19 8 60 to 65 7 6 6 8 13 6 10 3 It muft not however be inferred from hence, that the Society diftinguifties the different ages into thoftf fevcral clafles, and fo rates the premium of aflurance according to a fifth mean between the youngefl and the oldeft age. On the contrary as it proceeds entirely upon mathematical principles, fo of courfe the pre- miums vary in every year of life j and it is evident, that its prefent furplus ftock has not arifen from any inaccuracy in its calculations, but from making ufe of a table of obfervations, which gave the probabilities pf life lower than they appear to have been in the Society, The premiums are alfo made higher by calculating at ^ lov.^er rate of Interefl *, It was however fair and neccf- fary to take thefe advantages, not only towards de- fraying the expences of management, but guarding the Society during its infancy againft any particular lofles, * Three ^tj Cent. which APPENDIX. No. 21. which it might not then have been fo well able to fuf- tain. In order to determine the (late of a Society, whofe bufinefs confifts in making aflurances upon lives, there are three different methods, which may be employed ; by each of which it can be afcertained how far the Society proceeds upon fure principles on the one hand, or requires exorbitant contributions on the other. The firfl: method is by finding the proportions of the pre- miums to the claims. The fecond by comparing the number of perfons that die in the Society with the number that fiiould have died agreeable to the Table of obfervations, from which its premiums have been cal- culated. The third by invelligating the prefent value of all the affurances and comparing the fum of thofe values with the (lock or capital of the Society. It would ^ake up too much time, and may probably be unneccf- fary to explain the principles, upon which the firft and third methods are founded, but the fecond is readily conceived j for if a fmaller number dies in the Society than the Table fuppofes fliould have died, a demonllra- tion will arife of its thriving ftate ; and if a larger num- ber dies, the contrary will be proved. The ftate of the Equitable Society has been lately examined by each of thofe methods ; and they all agree in proving, that it is poffelTed of a (lock not only fuffi- cient to anfwer all its demands, but to fee u re it from any dangers, which may arife in an uncommon fcafon pf mortality. Hence by purfuing the firft method, it appears that the claims during the laft nine years, have on an average been annually above 3000I. Icfs than jhey (hould have been. J5y the fecond metiiqd, it is found tliat the propor- tions 539 540 A P P E N D I X. No. 21. tions of deaths in the Society to thofe in the Table of obfervations, from which the premiums have been cal- culated, are, From the age of 20 to 30 as 7 to 17 30 to 40 as 3 to 5 40 to 50 as I to 2 50 to 60 as 2 to 3 60 to 70 as 7 to 5 or in all ages from 20 to 70 as 2 to 3 nearly. By comparing alfo the decrements of life in the So- ciety, with thofe in Dr. Halley's Table, they are found to be. From the age of 20 to 30 as 5 to 9 30 to 40 as 5 to 6 40 to 50 as 6 to 7 50 to 60 as 5 to 6 60 to 70 as 5 to 3 or in all ages from 20 to 70 as II to 13 nearly. By the third method, which is by far the moft cer- tain, it appears, that the prefent ftock of the Society exceeds the values of all the aflurances by 30,0001. and upwards. In confequence of thofe concurring proofs of the flourifhing (late of the Society, it is now in agitation to reduce the premiums of aflurance. Mr. Taylor informed the Committee, That in va- luing lives upon eftates it was ufual to take the value of the life according to the moft approved Tables ; and that Intereft was only taken at four per cent : that he never remembers any life valued fo low as fix years' purchafe in any tranfacliion for the purchafe of eftates ; and APPENDIX. No. 21. 541 and that he has been very converfant in the buying and felling eftates. That undoubtedly there is great differ- ence in the real value of lives between the ages of twenty and fifty. The Committee were fatisfied from general infor- mation, that before the period, to which the evidence upon the firfl branch of their enquiry relates, being about twelve years, Annuities for the Life of the gran- tor were purchafed at a price much nearer their real value than they have been nnce. Ten years' pur- chafe upon good fecurity has been given for a Life of fifty j nor was tliere one general price for all ages, but the value varied according to the efcimate of the Life on which the Annuity was granted ; whereas in the prefent mode of granting Annuities there is but one price taken for ail ages between twenty and fifty. The facls fubmicted to the confideration of the Houfe will enable them to judge how far the Com- mittee are warranted in the obfervations they have made and the refolutions formed upon them. Six years' purchafe is allowed to be the current price of an Annuity upon a Life from the age of twenty-one to the age of fifty. If the tranfadlion was intended to be a real falc, things fo different in their value could not yield the fame price. The perfons advancing their money upon Anmiklcs at th.ls rate, have a reafonable e.xpcclation, that the prin- cipal will be returned ; and the perfons to whom it is advanced have a confidence that they may repay it when they can. The tranfa£lion then is/ormally a fale ; but in fub- flance it is a loan of money upon a perUhable fecurity ; where the advantage taken bears no proportion to the hazard, 54^ A I> P.E N D r X. No.2f. hazard, though that hazard may be eftimated and ill other tranfadtions where there is a real fale of a Life interelt, or a reverfion expedant upon it, is eftimated with reafonable certainty. The exorbitant profit gained by this mode of advan- cing money, is contriTy to the intentionof the Law tliaf regulates Intereft upon Loans ; it is a reftraint upon all thofe, who have occafion to borrow upon a Life eft ate for any prudent purpofe ,• and it is a public mifchief in refpecl both of the gain and of the ruin which fuch bargains produce. The excefs of this profit may be correded by limit-* ing the gain of fuch bargains to legal intereft and a rea- fonable compenfation of that rilk, which in cafes under no peculiar hazard attends the fccurity. The value of the difl'erent clafles of lives appears no* only by calculations, upon w^hich men daily act in the purchafe of eftates, but by the rate at which lives of different ages are infured with profit. The compenfation for the rifk of the life to be taken upon a larger allowance not only than its real value, but even than the rate at which fuch rifk may be infured, and the reduftion of the price to a lower fura may be left to the competition that muft arife in tranf- a£lions which will no longer be difgraceful. All advantage beyond the rate prefcribed ought to be deemed ufurious and made fubje£t to the penalties provided againft LTfury ; with an exception only of the lives of thofe, who, from the nature of their employ- ment are expofed to peculiar hazards. And all Annui- ties ought to be redeemable ; becaufe, if a fair confide- ration is paid, the redemption can never be a lofs to the perfon poflelTed of an intereft, which is daily dimi- nifliing. 5 Upoa. APPENDIX. No. 21. Upon the whole your Committee came to the fcllow-i ing refolutions : Refolved, That It Is the opinion of this Committee, that the purchafe of Annuities for the life of the grantor being generally intended as a loan of money ought to be regulated accordingly. Refolved, That it is the opinion of this Committee, that four per cent is a fufficient compenfation for the rlfl* of a life above twenty-one years and under twenty- five years. Refolved, That it is the opinion of this Committee, that 4^1. per cent is a fufficient compenfation for tlic rifle of a life above twenty-five years and undc;r thirty years. Refolved, That it is tlie opinion of this Committee, that 5I. per cent is a fufficient compenfation for the rifle of a life above thirty years and under thirty- five years. Refolved, That it is the opinion of this Committee, that 5il. per cent Is a fufficient compenfation for the rifb of a life above thirty- five years and under forty vcars. Refolved, That it is the opinion of this Commiitee, that 61. per cent is a fufficient compenfation for the rifl: of a life above forty years and under forty-five years. Refolved, That it is the opinion of this Committee, that 6^1. percent is a fufficient compenfation for the rilk of a life above forty-five years and under fifty years, Refolved, That it is the opinion of this Committee, that to take any larger annual fum than the legal interefl: of each lool. advanced in the purchafe of an Annuity for the life of the grantor together with the fums above fpeclficd being the values of the rcfpedive rifles attend- ing fuch Annuities ought to be made Ufury. Refolved, That it is the opinion of this Committee, tiiat 543 544 APPENDIX. No. 2r. that all Annuities for the life of the grantor ought M be redeemable on tlie payme:it of the fum advanced with the arrears of the Annuity to the time of payment. Refolved, That it is the opinion of this Committee, that the Chairman be direcSled to move the Houfe for leave to bring in a Bill upon the faid Refolutions. The firil Refolution of the Committee being read a fecond time vi'as upon the queftion put thereupon agreed to by the Houfe. The 2d, 3d, 4th, 5th, 6th, 7th and Sth, Refolutions of the Committee being feverally read a fecond time were pollponed. The 9th Refolution of the Committee being read a fecond time, was upon the queftion put thereupon agreed to by the Houfe. The fubfequent refolution of the Committee being read a fecond time, Mr. Bacon moved the Houfe accordingly. Orc!ered, That a Bill be brought in upon the Refolu- tions now agreed to and on the Debate of the Houfe on the faid Report : And that P>lr. Bacon Mr. Solicitor General Mr. Popham Mr. Newnham Mr. Ord Mr. Jackfon Mr. Macdonald and the Lord Advocate of Scotland do prepare and bring in the f^me. Ordered, That the faid P^eport and Refolutions be printed. No. XXII. APPENDIX. No. 22. N^. XXII. 17 Geo. III. c. xxvi. An Act for regifiering the Grants of Life Annui- ties ; and for the better Protedlon of Infants againfl fuch Grants, vV HERE AS the pernicious pra£lice of raifing money by the fale of Life Annuities hath of late years greatly increafed, and is much promoted by the fecrecy with which fuch tranfadtions are coiidu6led ; be it therefore ena£led, by the King's moft excellent Majefly, by and with the advice and confent of the Lords Spiritual and Temporal, and Commons, in this prefcnt Parliament aflembled, and by the authority of the fame, Sect. i. *' That a memorial of every deed, bond, inftrument, or other afllirance, whereby any Annuity or Rent Charge (hall, from and after the pafling of this A£b, be granted for one or more life or lives, or for any term of years, or greater eftate, determinable on one or more life or lives, fhall within twenty days of the execution of fuch deed, bond, inftrument, or other aflurance, be inrolled in the High Court of Chancery ; and that every fuch memorial ftiall contain the day r,f the mcrth, and the year, when the deed, bond, inllrument, or otlier alTurance bears date, and the name of all the parties, and for whom any of them are iruftees, and of all the witnefTes; and (hall fct forth tl e ain.ual fum or funis to be paid, and the name of the perfon or peifonsfor whofe life or lives the annuity is granted, and the con- fideratiOnor confiderationsof j^raii...ig the fame: oiher- wife every fuch deed, bond, iuftrumcnt, or other aflu- rance, fliall be null and void to all intents and purj'ofes. N a Sect. 545 ^46 APPENDIX. No. ix. Sect. 2. And be it further enadled by the authority aforefaid, "That before any judgment (lull be entered of record upon any warrant of attorney for recovering or fecuring the payment of any Annuity or Rent Charge that hath already been granted for one or more life or lives, or for any term of years or greater eftate deter- minable upon one or more life or lives, and before any execution lliall be fued out, or a^lion brought on any fuch judgment already entered, or on any deed, bond, inilrument or other aflurance already executed for the purpofes aforefaid, a like memorial of the deed, bond, inilrument, or other alTurance, fliall be inrolled in the High Court of Chancery \ and in cafe the party fhall negle6l to inrol the fame, any fuch judgment, execu- tion or proceeding in the adion refpeftively Ihall be null and void. Sect. 3. And be it further enaded by the authority aforefaid, " That in every deed, inilrument, or other aflurance, whereby any Annuity or Rent Charge fhall from and after the palTnig of this A61 be granted, or attempted to be granted, the confideration really and land fide (which (liall be in money only), and alfo the name or names of the perfon or perfons by whom, and on whofe behalf, the faid confideration, or any part thereof, fhall be advanced, fiiallbe fully and truly fet ' forth and defcribed in words at length \ and in cafe the fame {hall not be fully and truly fet forth and de- fcribed, every fuch o^^^d^^ inilrument, or other aflu- rance fliall be null and void to all intents and purpofes. Sect. 4. And be it further enacled, " That if any part of the confideration fliall be returned to the perfon advancing the fame \ or in cafe the confideration, or any part of it, is paid in notes, if any of the notes, with the APPENDIX. Ng.22. 547 the privity and confent of the perfon advancing the fame, (hall not be pnid when due, or (hall be cancelled or dcllroyed without being iirft paid ; or if the confide- ration, or any part of it, is paid in goods ; or if any part of the confideration is retained on pretence of an- fwering the future payments of the Annuity, or on any other pretence ; in all and every of the aforefaid cafes, it (hall and may be lawful for the perfon, by whom the Annuity or Rent Charge is made payable, to apply to the Court, in which any a£lion is brought, for payment of the Annuity, on judgment entered, by motion, to flay proceedings on the judgment or a£lion j and if it fliall appear to the Court that fnch praflices as afore- faid, or any of them, have been ufed, it fliall and may be lawful for the Court to order the dsed, bond, inltru- mcnt, or other aflurance, to be cancelled, and the judgment, if any has been entered, to be vacated. Sect. 5. And be it further enadted, " That a parti- cular roll fliall be provided and kept by the clerks of the inrollments in Chancery, or their deputy, on whicli fuch memorials fliall be entered, and that every fuch memorial fliall be duly inrolled in order of time, as the fame fliall be brought to the Office ; and the faid clerks of the inrollments, or their deputy, fliall fpecify upon the roll the certain day, hour, and time on which fuch memorial is brought to the Office, and fliall grant a cer- tificate of the inroll r.cnt thereof when required j and that there Ihall be paid for the inroUment of every fuch memorial the fum of one fliilling, and no more, in cafe the fame do not exceed two hundred words ; but if fuch memorial fhall ?xcced two hundred words, then after the rate a'^d proportion of fixpence for every one hun- dred words, and the like fees for every certificate and N n 2 copy 548 APPENDIX. No. 2.2. copy >;ivcn ; and the fee of one (lulling for every fearcK in the OHicCj and no more. .Sect. 6. And be it further enabled by the authority aforcfaid, " That all contracts for the purchafe of any Annuity witli any perfon being under the age of twenty- one years, fluH be and remain utterly void, any attempt to confirm the fume after fuch perfon fhall have attained the age of twenty-one years notwithftanding ; and that if any perfon ftiall, either in perfon>by letter, agent, or otherwife howfoever, procure, engage, folicit, or aflc any perfon being under the age of twenty-one years, to grant or attempt to grant any Annuity or Rent Charge, or to execute any bond, deed, or other inftrument, for fecu- ring the fame j or diall advance or procure, or treat for any money to be advanced to any perfon under the age of twenty-one years, upon confideration of any Annuity or Rent Charge, to be fecured or granted by fuch in- fant, after he or flie fliall have attained his or her age of twenty-one years i or (hall induce, folicit, or procure any infant, upon any treaty or tranfaftion for money advanced, or to be advanced, to make oath, or give his or her word of honour, or folcmn promife, that he or {he will not plead infancy, or make any other defence againit the demand of any fuch Annuity or Rent Charge, or the repayment of the money advanced to him or her when under age -, or that when he or {he comes of age, he or fhe will confirm r ratify, or in any way fubilan- tiate fuch Annuity or Rent Charge ; every fuch perfon ftiall be guilty of a mifdemeanor, and being thereof law- fully convidled in any Court of Afiize, Oyer et Ter- miner, or General Gaol Delivery, fliall and may be puni{hed for the faid offence by {ine, imprifonment, or other corporal punifliment as the Court {liall tliink fit to- award. 4 Sect. APPENDIX. No. 22. Sect. 7. And be it enabled by the authority aforc- faid, " That all and every foHcitors and foJicitor, fcri- veners and fcrivener, brokers and broker, and other per- fons or perfon, who, from and after the palling of this A61, fhall aflc, demand, accept, or receive, dircclly or indire£i:ly, any fum or funis of money, or any other kind of gratuity or reward, for the foHciting or procu- ring the loan, and for the brokerage of any money that lliall be. actually and bond fdc advanced and paid as and for the price or confideration of any fuch Annuity or Rent Charge, over and above the fum of ten {hillings for every one hundred pounds fo atSlunlly and bond fide advanced and paid, fhall be deemed and adjudged guilty of a mifderneanor ; and being lawfully convicted of fuch offence in any Court of Afuze, Oyer and Ter- miner, or General Gaol Delivery, fhril! and may, for every fuch offence, be puniftied by fine and imprifon- ment, or one of them, at the difcretion of the Court ; and that the perfon or perfons who fhall have paid or given any fum or fums of money, gratuity, or reward, fhall be deemed a competent witnefs or witnelfes to prove the fame. Sect. 8. And be it further ena£lcd, " That nothing in this Adl contained fliall extend to any Annuity or Rent Charge given by will, or by marriage fettlemcnt, or for the advancement of a child •, nor to any Annuity or Rent Charge fecured upon lands of equal or greater annual value, whereof the grantor was feifed in fee- fimple or in fee-tail in poffeflion at the time of the grant, or fecured by the adlual transfer of flock in any of the public funds, the dividends whereof are of equal or greater annual value than the faid Annuity j nor to any voluntary Annuity granted without regard to pecu- niary confideration \ nor to any Annuity or Rent N n 3 Charge 545 550 APPENDIX. No. 22. Charge granted by any body-corporate, or under any authority or truft created by Aft of Parliament; nor to any Annuity wliere the fum to be paid does not ex- ceed ten pounds annually, unlefs there be more than one fuch lafl mentioned Annuity from the fame gran- tor or grantors, to or in truft for the fame perfon or pcrfons." GENE- GENERAL INDEX. Abbots. Grant of Annuity in fee by Abbot without the words /or Urn and fuc» cejfors good 236. AR'ton at Lanvj Will not lie on an ufurious contract 63. Lies for the borrower only after payment or tender of the money 217. On the Statutes of Ufury to be brought within twelve calendar months 2l3. Brought for the purchafe-money of an Annuity after it has been avoided 433. 458. ABs of Parliament. — Vid. Statutes. Propriety of repealing all old Aifts on making a new one 64. Cannot be without advice and confent of Lords and Commons :ia 118. Whether the banifliment of the Jews by Aft of Parliameat 115. How Courts conftrue them 420. 20 Hen. III. de Merton 81. 126. IZ7. 476. 2 Ed. I. Hi. 127. 15 Ed. I. 118. 119. 47^- ■ jS Ed L no. III. 470. 14 Rich. H. 29. I Hen. IV. 130. 3 Hen. Vir. 76. II Hen. VH. 76. 484. 37 Hen. Vlll. 63. 64. 65.485. . 5 and 6 Ed. VI. 1-^2.489. 13 Eliz. c. viii. 39. 133. 134. r3S'49-' 13 Eliz. c. XX. 3C0. 14 Eliz. c. xi. 312. 18 Eliz. c. xi. 313. 39 Elir. c. ix. 313. 21 Jac. 39. 138.496. 3 Car. I. J3S. 12 Car. n. 139.499. lo Car. II. 139. 16 Car. n. 436. I Ann. 123. 9 Ann. 436, 12 Ann. 140. 502. 3 Ceo. I, 141. J05. Na4 ijGto. 552 GENERAL INDEX. ^Bi of Parliament. 13 Geo. II. 135. 14 Geo II. 142. 203, a6 Geo. II. 123. 14 Geo. III. 141. 507. 17 Geo. III. 123. 121. 545. App. XXII. Agent. Whether the payment of all their charges in Annaity-tranfaftions make a part of the confideration to be fpecified in the memorial 384 to ^92. Karnes of .igents who pay the confideration to.be fct forth at full length in Annuicy .deeds 405.406. Ag"ein^£iit • — Vid. Contracls. Mien. Alien-brokers forfeit all to the King 72. Their incapacities common to all, of all religions, ^'C. 90. gt. Amerciaments. Ecclefiaftical benefices not liable to them 313. Annuity. What Lord Hardwicke faid of dealers in Annuities 165. Political tendency of the evil of Annuities 228. 256, Mr. Erlkine's idea of the evil 232. Definition of 2 12. PifFtrence between Annuity and Rent Charge 233, Annuity by prelcription 2;3. Of eledine the remedies and thereby determining whether it be An- nuity or Rent Charge 254. ^i\. 2;9 2 o. A grant without the words for bis heirs only for life 236. Otheiwife from a corporation 256. How a void Rent Charge maybe a good Annuity 337. Annuity of inheritance is forteitabie for tieafon 238. I5eing perfonal not an herediiament within Statute of Mortmain ajS. Not iniailable within Statute de donls 238. A fine cannot be levied of it ;38. Shall not be taken for affets, not being a freehold in the Law 238. ?v'or put in execution on Elegit Statute Merchant or Staple 238. Is affignable over 2 ^9. Where writ ot Annuity lieth not 242. How Annuities become extinct 213. 24^. Of the remedies for recovering Annuity 244. 245. Veils not in execuiors i.j.^. Annuity in fee is a perfonal inheritance and goes to heir 2^^. Writ of Annuity lieth agalnft the heir (if included in the grant) 24S, If lieih only whi'e Annu:ty is payable 246. Of the Sheriff's return to writ of Anntiity 247. How far Annuities are ufurious 2^S. 262. 263. Lord Hardwicke thought moll of them ufurious 2t;(). Annuity vvoulJ be ufurious if any provifioi) for the repayment of tke principal :6d. Of the claufe for redeeming or re -pure hiring from 266 to 271, Whsther aifurance of Annuities reader ihem ufurious 272. Of GENERAL INDEX. Anmi'Jy. Of the real and market prices thereof iSz. A meiviorial thercut to be rcgiiicjed 27. Utmoll poffihle no or ety given by the memorial 529. Of letting I jrth t)ie I'ec.et truth in the memorial 336. Grantee mult repiller a m-.moridl of an Annuity granted before the Adl er; he proceed at law 537. Annuity deeds void which mention not the names of tlic perfons pay- ing the vonfideration and oa whufe behalf •, ;S. 340. Whether the cop.lideration mult be /« wo/'ion of the Courts in entertaining applica- tions and giving redrcis under the Annuity Adt j iO to 455. Of the revival of ihe original contrudl upon the avoidance of the An- nuity 4.3 c to 450. Indidmeiit lies againft bi<>':.iS, &c for taking any thing beyond i;s. per i:ol. ; the quantum needs not ic be proved 4C2. E'juitable as well as I'gul tcnaiuies in iee and tail within tlic exception of th; Annuity Ad 454. VVhen Courts order Annuities to be vacated they order the money to i* rcltored 458. Annuity AEl. — Vid. S^7///^v. It's coi.fcfjuence to individuals 317. Erought in by the prcfeiit Charccllor 318. Ihe original bill 510. 523. 324. tomes down from the Jloufc of Lords 32c A nevf 553 5j4 GENERAL INDENT. Annuity AEl. A new bill brought in ^520. The original plan divided 320. The fecond bill (the prefent h^X) Icfs extenfivc than the firft 324. Of the preamble and equity of the Adi 324. 325. Firft fedion of the Aft 326. Legiflature's intent in making it 311^. t;26. Of regiftering a memori.il of the tranfaftion 327. Particular views of the L^giflature in palTing it 31S. Second fciftion of the Act 33$- 399. Third fcflion of rhe Aft 3^7. 405 10407. Fourth feflion of the Adt 341. 407 to 435. Fifth feaion of the Aft 343. 43 5. Sixth fcftion of the Aft 343.435. Seventh feftion of the Aft 345. Eighth feftion of the Aft 346. 453. 454. Exceptions to the Aft 34C>. 453. 454. Monllroup principle of giving etTeft to it feven months before it palTcd into a law 3 ^jj. Is an extremely remedial lavvf 357.3^S. 373. To be litttraHy purfued ^Cg. 373. O-f the power of the Courts in entertaining application and giving re- drefe under it 4:0 to 435. Mr. Powell's argument upon conftruing the Annuity Aft like the Gam- ing Afts 4:;6 10450. Draught of the original bill and amendments brought in by Mr. Wcd- derburn. App. No. XX. Draught of Mr. Bacon's bill to afcertain the price of Annuities and re- port of tlie Committee. App. No. XXI. The Annuity Aft. App. No. XXII. Application to the Courts. Before and fince the Annuity Aft 2S^. Who may apply for vacating .\nnuuies 409 10412. Of being baried by lapfe of time and laches of the party 413 to 420, What Cr.urts will entertain applications for fetting afide Annuities 410 ■ 104^5. Courts Older the money to be reflored when they vacate Annuities 4:8. AJfignment. Of regiltering affignments of Annuities 363. 364. 401. AJfumpf.t. Brought for the vali:e of the Annuity avoided 423. 45S. Jjfuratices — Vid. Securities and Deeds. Authoriiy of Courts. Whether they have authority to punilh the negleijl or laches of the grantor in not applying for ledrefs 41 3 to 420. Difference ot opinion hereupon. Ibidem. In entertaining applications and giving redrefs upder the Annuity ^H 420 to 435. Spiritual or Eccleftajlicah Ufury not to be regulated by it 3S, Different CEITERALIKDEX. r-" Authon^ Spiritual or EcclefiaJiicaL Different from temporal C3. Has no jurifdidioii ex naturA fua to check crimes by coercive means 77- ■^ 'Temporal or Civil. Civil magilliate may control indifferent a(f\ions but canaot counter^ft the law of nature and grace 6. 15. 24. Ufurj- to be regulated by it 38. Different from fpiritual 53. jJttortiey. — Vid. JVarrant of, and alfo SoUicitor, Banijhmeni, Of the Jews by Parliament 113. II4. Coke and Prynne differ about their banifhm,ent being by Pailianent 114. Banifhment a perfonal puniflimcpt 115. 122. Batik Notes, Arecalh when not x)bje(fled to 376. Bargain. — Vid. Contract and Confideraiion. In an information for Ufury the bargain mull be laid to be csrrKpt i not fo in a verdidl 212. 2 x^. Benefices. — Vid. Ecclejtajlical Livings. Bijhops. — Vid. Ordinaries. They fugg:rtod i clauie asjainft Ufury in 21 Jac. t. 39. I •^7. Had the punilhmeut of UUiitrs by common law 67. 71. 72. 7v 76. They difl'uide (he King from punifhing Jews 95. Their fpirit 01 toleration the ground of an Aft of Parliament in favor of the Jews 1 18- Trultces of their immunities and rights for their fuccefLrs 126. Become ecclefiaftical flieritfs in fequeftrations 302. Rond. Of the effefts of bonds executed in foreign countries 207. Maybe put in fuit here for the iniereit of the country 208. 209. Whether clergymen's bonds and warrants to confefs judgment become void when the Annuity deeds arc fo 302. 3C3. Bottomry Bonds not within the Statutes cf Ufury 18S. 189. BroliPrs. Alien-brokers forfeit all to the King 72. Punifhable by 21 Jac. I. for taking more than one half per cent. 13?. Guilty of mifdemeanor and punifhable by the .\nnuity ACt for taking more than 1. s. per icol, 345. .,50. Canon Laiv. The old Canon Law before 1606 is common law 298. JJot neccflary 10 be contirmcd by P^iriiament 298. Ccfluy ss^ GENERAL INDEX, Ceftuy que Trttjl. — Vid. Trujiees. Civil. — Vid. Authority) Courts, Magijlrate and Powtr. Chancellor. Prefent Chancellor brought in die Annuity Adl in 1777. 31^. China. Ufury of 30 per cent, allowed to be taken there 40. 41. Clergy and Cleris. — Vid. Livings^ Ecdefiajlical Property ^ ■ and Spque/lrnttcn. They formerly inproffed all learning 15. • Their influence over ihe laity 27. 73. 118. Truftees of their rights for their fuccefTors 127. Of the fequeftration of their livings 306 to 3 ( 3. Common Laiv. — Vid. England., Vjury^ Isfc. Aeainli: Ufury arcfe out ot tlie general prejudices 45. 46. What nieai.t by comm.">n law of England 6r. Cannot be altered but by exprefs Statute 61. According to Lord Coke the common law of Ufury aboliflied 62, 6;, 143. 211. 212. No af.tion lies on a contract ufurious at common law 63. 143. Some Ufury punifhab'e in common law courts 71. 7c. 14S. Common law never permitted the taking of i percent. 15;. De Grey of opinion that common law of Ufury is not aboliihed 15.1. 157. 159.220. Old canons a part of the common law 299. Conjtderation. Of the adequacy of the confidcration of the Annuity 275. Of the inadequacy 278. Of a valid confidcration for an Annuity 2S4. Of confiderations/»a /J^>/>/' fi'/'J 285. Of granting Annuities 530. Whether the expences and brokerage make a part of it 33 r. Whether it mull literally be for money only 33S. 339. 341. 342.374. May as well be recited as averred in the memorial 37S. 393. Talfeiy fta'ed in the memorial vacaies the deed 379 to 3^2. Terms of the contraft make a part of it 383. Payment of law charges a part of it 184 to 392. JJe'eds OTily to be once mentioned in memorial 393. Of one Annuity's being the confiJeration for another 402 10405. The names of agents who pay it to be fet forth in the deed 405. 406. Of retaining part of it 407. 408. ContraB. — V/d. Ujurious. Of contrails entered info in foreign countries 207. Of the general validity of a contraft 209. Ot contra Nor convert an Annuity into a Loan 264. Exceptions, Out of the Annuity Aft 346. 347. Of the exception of tenants in fee and in tail 34S. 349. Exchange. Dry exchange what it is 127. I23. Exscuticn. Annuity ihall not be put in execution on EI«o;t Statute Merchsnt k^, 238. Fathers Holy. Their ideas of Ufury i'. 19. 26. 57. 58. Invedives of Greek Fa;!>ers againft Ufury 28. 29. Ditto of the Latin Fathers 30. Eee-fimph and 7 ail. — Vid. Exceptions. Tenants granting Annuities excepted out of tlis Act 348. 340. Fieri Facias. De bon. eccl. 302. ^cg. Finey Cannot be levied of an Annuity 238. Forfeiture. Annuity forfeitable for treafon 23S. Forms of Mem oria Is, Cannot be fixed 325. 32.9. Fraud. DiiTer^nt fpecies of it according to Lcrd HarJwicke 2S3, Funds. GENERAL INDEV, ^ Funds- — ^Vid. Slock f. Annuities fecur«d out of them and excepted 347. Thisexceptio'O wot noticed by Court 36B. Security for a gaming debt void in the Ijands of a third perfou not privy 2.4. Both parties in gaming contrads /« fjri dehSlo aic. Of the conftruilion of tlie Aits againft it 436. Goods. — Vid. Ecclefiajiical attd Spirhuah Grants . — Vid. Anniut'ies. Half pay. —V\A. Pay. Not afiignabic 296. Heir. — Vid. Annuity. Grant of Annuity without the words and for hii Wirt is only toi lifr. 235- ^eius. — ^Vld. Judaiftn. formerly prohibiied to take Ufury from each other but permitted t* take it from ftrangers 12. ig. 20. 25. Prohibition of Ufury confined to the Jews 26. A fpecies of Ufury praftifcd by the Jewilli priefts 56. Allowed in England to take Ufury by commoa law 78. 81. S2. S9. ivO. 122.147. Not to have Ufury againft a minor 78. 79. 8r. Their introd'.nSion into England S4. The firit Law concerning them 86. King had a rijht to all their properly S7. loo. lor. Ought not to be punifhed for their religious belief 90. Unjuit prejudices of this nation againll them 90. 91. I5n. "Judjipn 3 name of profcflion not of nation go. Dreadfully malTacred and perfecuted in England 93. 94. io6. 1:7. Protedled by the King at the recommendation of the HiHiops 96. 1 iS. Of their regifterine all their died^ in the Star-chamber 97. gS. Grant of a High Prielt by King John 9g.469. A fpecies of corporation goveriied by their own bye-laws lOC. Ofthofc thattu'.Tied Chriftians forfeiting all to the King lOj. Horridly perJecuted by Henry III 104. 105. The crimes allcjged againft them 106. A Judge appointed over them by Parliament 104. Allowed to lake 2d. per is. per week, i. e. 40 per cent per ann. 108. Whether their b-inifhment compulfory or voluntary 112. 113. 114. It was compulfory by F-irliament 115. 121. For more than ^oc ye.irs no other Law made concerning ti»e Jewi than fuch as are beriClkial 123. Foreign Jews now treated by the Laws as other Aliens 1:4. Englilh Jews as other fubjechs ''except as to the Tell Ads, &C.) 114. Charters of King |jhn to the jews 466. 467. Statute de [udaifmo 47''. 1. 2. i.. Writ of f fc co;)du(fl 10 the Jews when banifhcd 476. Writ to the Prior of Bridiinuton to piy 300!, which he owed to a Jcv before bauillimcnt unto the King 475. Inadt" ^5,^ GENERAL INDE^- In adequacy of Price. How Annuities may hi. thereby afFe<3cJ -sSo to 2?^. Ot' it's general eilects upon other irdniadions, Ii>it^, Iiidiciitient^ For taking more than ics. per lonl. for negociatin? an Annuity 451. The quantum of excefs needs not be fpeciti^d as in Ufury 451. Infants. Contrads with them for Annuities void and punifhibk as mifde- meanors 344.435. Inrolment. Difference between that and regiftering .^^7. Of the effedls of deeds executed before inrolment 411, Jnf lira nee. Whether it render Annuities ufurious 37;. liijlrument. — Vld. AJfurances and Deeds, Intention. Often creates Ufuiy 176. loi. Interejl. 301. percent, allowed of in China by Chriftians 41, Ufurious to '.vithhold it out of the principal lent 178. Over-ruled in the Common Pleas 179. Of taking excelTive Intereft on non-payment at a given day iSz. Where the Intereft only is hazarded it will be Ufury 19:;. Upon bond recoverable here at the rate of the country where the bond %vas entered into 209. Interpretation. — Vid. Conjlriiclion. 'Judgment. Effeds of judgments on ecclefiaftical livings 303. 3C4. For fecuring Annuity needs not be regiftered 363. 'JiirlfdiElion cf Courts. Of the jurifdiflion of the Courts in entertaining applications and giving redrefs under the Annuity Adl 410 to 43;. King, Kad a right to all the property of dead Ufarers 75. 79. Tiie fame of all Jew.; 86. S7. King's prerog itive checked and controlled by P^iliament 105, Character of King Henry HI 10.^ Cannot banifh any fubjeft ii<. 119. May grant Annuity in fee -.vithout the v/Q\it for vy kcirs and Juc C'Jlors 236, Laches* CENERAI. INDEX, Laches. Whether a grantor of an Annuity be barred his remedy by lapfe of time or his own laches 413 to 420. Whether the laches of the grantee of an Annuity will raife an implied contrail inihe grantor to,reftore the purchafe-money 445. Lands.' — Vid. Rejit Charge, Laiv Canon. — ^Vid. Canon Law. Common. — Yid.Commo/i Law, • of Nature J Written in every man's heart 19. 2C, 46. j Many nations punidied Ufury as againft it 27. 147. 160. iSr. Is unchangeable 46. — — Statute. EfFeft of the Statute Law of Ufury 151. Limitatiofit Of time with reference to the Annuity A£l 41 3 to 420. Loan. Whether Ufury can exift without it 163. 193. 196. 205,206, Magi/irate— Y'ld. Civil. Ought to regulate Ufury j3. 149. Cannot puniih for religious opinions 90. Cannot fandion inJircdly what he cannot exprefsly direil or order T3§. His duty tj render private rights conducive to the good of the whole J49- Jllarriage Brocage Bonds. Security given for procuring a match void in the hands of a tliird per* fon .'.14. Invalid becaufe publicly detrimental 285. ■ Selth'ments. Annuities fecured under them excepted out of the Annuity A£l 346. Memorial. Difference between thofe required by the Annuity A.&. and the re- gulating Ads for York and Middlefex 327. Notoriety required by the memorial 329. No fet form of it can be ti^cd 328. 329. Whether it ought to fet forth the law expences 3-;i. 3^4 to 392. Nec.-flity of letting forth the fecrct trufts in the memorial 3^4. Mull be regiftered though granted before the Aii ere proceedings can be had ?57. ^lult fo llate each deed as to fpecify the Annuity which it afft:r^ ^^4 GENERAL iNDIiX. Dificience between that ar.J inrolment 327. Relcafe. Of adlions pcrfonal a gond bar to an Annuity even with a claufc of dhlrefs without the word heirs 237. Rent Charge. — Vid. Annuity- DilTerence between Annuity and Rent Charge 2^3. Ot determining by elcflion of remedies whether it (hall be Annuity or Rent Charge 254- 235. How a void Rent Charge may be a good Annuity 237. What Rents (hall not be converted into Annuities 240. Retaining and Returning. — Vid. Annuity. Part of the coniideration of an Annuity how it afre(Ss and what powers it gives the Court to order the deeds to be cancelled, &&v 341. 407. 408. Sale. — Vid. Anmtities. Scire Facias. Whether an adtion within the fecond fe(Sion of Annuity Aft 384. Scriptures Old avd New. Ufury prohibited in the Old Teftament it. 13. 19. 33. How far prohibited in the New 23. 24, 55. Security. — Vid. Ajjurances and Deeds. Securities when void and not voidable under the Annuity Atfl 341, 34- Every deed fecuring an Annuity to be regiftered 358. Warrant of attorney for confeffing judgment on aa Annuity bond ;? fuch fecurity 339. Sisch alfo are deeJs from furetics 361. Schoolmen. , Their ideas of Ufury 26.37. Scrivener.-, — Vid. Brokers. Seqiiejlratioti. — Vid. Ecclefiajlical Livings and Property. Origin nature and efiefts of ecclefiaftical fequeltrations 306 10313. Sheriff". Bilhop ails as flierifF on ecclefiaftical property 302. Sollicitor. — Vid. Broker and Scrivener. Punifhable for a mifdemeanor in taking above let. per lool. in nego- ciating Annuities 345.450.461. Statutes. — Vid. ASJs cf Parliament. ^ Propriety of repealing all old Adts when a new one is made 64. Judges bounden to notice them 3CI. Monftrous rule of giving cfFedt to them from the firft day of the Seflio* 355- Stat, GENERAL INDEX. Statutes. Stat, oi' Mcrton, 20 Hen. III. 2 Ed. I. 15 Ed. I. 18 Ed. 1. 14 Rich. II. I Hen. IV. 3 Hen. Vn, c. s. J I Hen. VII. 565 ll Hen. VIII, 5 and 6 EJ. VI. Ij Eliz. c. viii. l4Eliz. c. xi. 18 Eliz. 39 Eliz. c. ix, 21 JiC. 1. 3 Cha. I 12 Car. II, nCar. II 16 Car. H 9 Ann, Ufury fhall not run againft a minor 81. 103. 126. 476. Ditto 112. Ufury declared punifliable by the Or- dinary 67. VVheiher tliis Aft were repealed the fame year 70. 7 t. Staturumde Judaifmo no. 111. 1 18. I H). 122. 127.470. De.ilers in exchange obliged to layjout the amount in goods zg. Mafters of the exchange appointed by the King 180. Acknowledges the ecclefiafticai jurifdic- tion over Ulurers 76. Againft dry exchange Reps.Tis 3 Hen. VII. and provides more cffcdually againft Ufury 76. 4S2. A bill againft l/fury 6j. 64.485. Whether this Act repealed the commoa law of Ufury 65. Total chan7,e in the laws of Ufury from this time 130. The word loan does not occur in ths Aft [32. 154. To be conftrued largely for fupprcffing the ufage 134. Confirms old canons 299. Repealed the Aft of Hen. VIII and punifhed Ufury more feverely 132. 489. Legiflative prejudices againft Ulury 39. Revives the Aft of Hen. Vlll. and incrcafes pe:i,ilties 133.492. Declares how the Aft of Hen. VIlI. to be conftrued 1 54. 492. Debates upon it in the Commons 135. Church livings unalienable 290. Of the term charging under the Aft 307 tojiv Continued the r3th Eliz. c. xx. 312. Regulates the fe^jucftration and how it Ihail be applied to parochial purpofes Continues 13 Eliz. c. xx. Legiflative prejudices againft Ufury 39. Reduces the rate of Inteieft from iS to 8 per cent. 137. Confirms the old and adds new penal- ties on brokers 137. 13 '^. 496. Aft of Ja. I. for fevcn years made per- petual Reduces Iiiiereft to 6 per cent. 139. 499- Confirmed the former Aft 139. Againft gaming 436. Ag.tir.ft gaming 436. Sut. s^^ GENERAL INDEX. ZtatutfS. Slat, of Merton, i Ann. Chancellor may provide for the Pro- teftant child of a jewiih parent 123. 12 Ann. c. xvi. Iiuereft reducsd to 5 per cent. 140. 502. 3 Geo. I. Some Intereft alloived of by Law to be taken (42. 50;. 13 Geo. II. Jews difpcnfed with fwearing upon the faith of a Chrillian 123. 14 Geo. II. 6 per cent allowed of in the Plantations 142.203. 26 Geo. 11. Jews might be naturalized without tak- ing the facrament 123. 27 Geo. II. Repealed 125. 124. 14 Geo. III. c. 79. For fettling the Intereft to be taken on fecuriiies in Ireland and Plantations 142. 507. 17 Geo. III. c. 26. Annuity Aft 323. f App. No. XXII.) 33 Geo. III. c. 13. Every Adt to operate from the day of the royal aflent 356. Stoc^'jobhtng. Sir John Barnard's Aifl 197. Of continuation and backadation prenxiums 19S. Contrads put both parties in par: deli fit 215. Sureties. Q^/ayi truftees to Come purpofes 336. Their feparate deeds for better fecuring Annuities muft be rcgif- tered ;6i. Not anfwerable for the purchafe-pioney when the Annuity is de- clared void 44''). tenants for L'lfe^ Can give as good fecurity for Annuities for their own lives as te- nants in fee 349. 454. ■ in Fee-fimple. £juiiab!e as well as legal within the exception of the Annuity Aft 454- ■ in Fee-tail. What things intailable and what not 2 3^. Equitahlf as well as legal eftates within the exQCption of the Annuity hOi 454. fender. Bank notes when offered to be turned into ca(h are a legal lender 3 76. Excludes not only Jews but many millions of Britifli fubjeiSs from tke advantagesof the State 95. Theolog'^ G E N E R A L I N D E X. ^hiology and Theoloyjans. Divines ideas of Ufuiy 14. i <. 52, Difftrence between tieir theory and pra