the application to the defendant, nor does he fay in his anfwer, that he refufed to lend the money, but that he did it on weighing and confidering the propofal.

What is the material refult of this? Why that, upon inquiry, he did not find the report of Mr. Spencer's declining health true, and therefore the rifque not being fo great as at first imagined, it determined him to comply with the propofal.

The effects of his intemperance, as appears by evidence, fufficiently removed; for his laft relief, for a particular disorder, was in 1732, fix years before this contract, and then the witneffes fay he was of a strong robuft conftitution. Loftin and Thompson fay he was of a found ftrong health, and therefore likely to outlive the Dutchess of Marlborough: These are their own witneffes who were connected with him, and in the service of his family.

Another reason they urge is, a perfon must be calculating how much intereft they lofe in the mean time while the contingency is depending.

Very hard driven! for they compute interest upon intereft, præmium for insurance, intereft upon that, and intereft too upon that intereft, and fo round the compass, and yet, after all this labour, falls fhort fome hundred pounds of the gains the defendant makes,

I would not defire a ftronger proof of the ufuriousness of this contract, than the hard fhifts they are put to in order to fave it out of the ftatute.

Judging by events I always understood to be the worst rule of judging; the only proper way, What was the chance at the time? And Lord Mountfort fays, the Dutchess of Marlborough's life was not worth more than three years purchase, and therefore her living fix years is of no weight.

It is faid no impofition is charged by the bill.

The contract is charged to be ufurious, and charged to be exorbitant, and that the defendant took advantage of Mr. Spencer's neceffities; therefore what do they mean by faying, We have not charged impofition? if not interms, yet neceffarily implied.

As to Mr. Spencer's great property, he was only tenant for life; as to his perfonal eftate, he was not in effect and fubftance fui juris, because his fears of blowing up his hopes in the Dutchess of Marlborough prevented him from making use of the perfonal flate.

It is then faid, he wanted money on a just cause for paying debts, and that his best friends would have advised this method; nay, your Lordship would have done it.

Lord Chancellor: Iwill relieve you from this part of the argument; I would not for my own part have advifed it in any circumstances. Mr. Spencer was bound to pay it, even if the Dutchefs did not leave him a fhilling! What would have been his condition then? Is it not clear he taked his ruin on this engagement?

No mention made that he was indebted to tradefmen at the time the money was borrowed; his own private juftice might indeed lead him to apply the money in this manner, but it is VOL. I.

no

no fort of excufe to the defendant, because he had not this view in advancing it.

The defendant was engaged to keep it a fecret on the principle of Mr. Spencer's dependance on the Dutchefs of Marlborough, this therefore was putting him under fetters. No body pretends that Mr. Spencer did not know the terms, or ignorant that he was only 30, and therefore it was his apprehenfion of the Dutchefs that fubdued him to the impofition.

I do not difpute but that a fon may dispose of a reverfion, but that is not the cafe here, it is the hard fevere terms we object to, and in the judgment of a court of equity, is a fraud where the relief does not infringe on the juft rights of mankind. Wifeman's cafe, a rifque on the death of an uncle.

Here on the death of a grandmother, therefore why not ftronger?

It is admitted arguments of public mifchief are laudably adopted into this court.

Is not this a growing evil? all mankind feel it!

As to the tranfactions which are fubfequent to the bargain, being a confirmation, the defendant's counfel rely on Cole v. Gibbons, 3 Wms. 390.

But the executors here do the duty much better by endeavouring to be relieved.

The next cafe, Standard v. Medcalf, turns ftrongly against them, for though the house of lords affirmed the decree, and by that confirmed the will, yet if the recovered her fenfes, did it without prejudice to any alteration she might make in that dispofition, therefore this not properly a confirmation of the fettlement.

Mr. Spencer acknowledging the debt, that he could not pay it, but would execute a new fecurity, and pay the defendant at times, fhews his neceffity, and that he had no profpect of doing it but by indulgence,

The new bond produced by the defendant, antedated to the 'day of the Dutchess of Marlborough's death, but charged by the bill, that it was to be paid in a month after the death of the Dutchefs, and though by his anfwer he fwears he cannot be, quite exact as to the time of payment agreed, yet, in order to gain more intereft, carries it back to the day of her death.

If the court cannot relieve where it is double the fum, for illegality, they cannot relieve if five times the fum; and therefore the argument of publick mifchief muft have great weight, as no man can fay what bounds may be set to extravagant contracts of this kind, unlefs it meets with a check from this court, in the manner we have prayed by our bill.

The caufe was ordered to ftand over till Michaelmas term, and in the mean time a fearch directed to be made after the original bond, or, if that cannot be found, a copy of it.

February

February the 4th, 1750.

The Earl of Cheflerfield, and others, executors of of Plaintiff's.

Mr. Spencer,

Sir Abraham Jansen, Baronet,

The cause stood for judgment.

Lord Chancellor in court,

M

{

Lord Chief Justice Lee,

Affifted by The Mafter of the Rolls, and
Mr. Juftice Burnett.

Defendant.

R. Juftice Burnett: The counfel for the plaintiffs in this caufe have infifted principally upon three things. First, That the original contract is ufurious, and contrary to the ftatutes of ufury.

Secondly, That, fuppofing it be not an ufurious contract, it is fuch an undue advantage taken of a man's neceffity upon an expectancy, that this court will relieve against it as an unconscionable bargain.

Thirdly, That the new fecurity ought to be confidered in the fame light as the old, and a continuation of the fraud.

On the part of the defendant it is infifted, this is a mere contingent bargain, and in the nature of a wager only; no circumstance of a diftreffed heir feduced from parental government; no fraud or impofition, and therefore not warranted by former precedents, to fet this contract afide.

And that if the court could have relieved on the original agreement, yet cannot, confiftent with the rules of equity, do it, when the party has voluntarily taken upon himself to confirm it.

As to the first queftion, Whether a loan of 5000l. to be paid 10,000l. on the death of the Dutchess of Marlborough in the lifetime of Mr. Spencer, be such an ufurious contract as is within the ftatutes, or only a mere cafual contingent bargain, and not ufurious.

This court has adopted the use of the word loan, in cafes of bottomree, as well as in common money transactions, and therefore fhall make use of that term likewise.

To make this contract ufurious, it must be either, becaufe it is within the exprefs words, or an evafion or fhift, to keep out of the ftatutes.

It would be mifpending time to give the opinion of Civilians, and canonifts, upon the head of ufury, because trade and commerce have made great alterations with regard to money; Lord Co. in his 2d Inft. 89. fays, At the time of the ftatute of Merton, and also before the conqueft, it was not lawful for Chriflians to take any ufury, as appeareth by the laws of St. Edward, &c. and Glanvill, and other ancient authors and records; and no ufury was then permitted but by the Jews only. In Lord Coke's 3d Luft. 152. he faith, that by the ftatute of 37 H. 8. and 13 Eliz.

Za 2

all

Nothing's legally ufurious but what is prohi

tutes, and to

make a contract fo, must be

all former acts, ftatutes, and laws, ordained, and made for the avoiding or punishment of ufury, are made void, and of none effect; fo at this day, neither the common law, nor any flatute is in force, but only the fatute of the 37 H. 8. 13 Eliz. and 21 Jac. Hardr. 420. e contra, for per Lord Chief Baron Hale, Jewish ufury was prohibited at Common law, being 401. per cent. and more; but no other.

It must be agreed then, nothing is legally ufurious, but what is prohibited by the ftatutes; and the material ones are bited by the fta- the ftatute of the 37 H. 8. c. 3. fect. 3. No perfon by way of any corrupt bargain, loan, exchange, chevifance, fhift, or intereft, of any wares, or other things, or by any other deceitful ways, shall take in gains for the forbearance of one year for his money, or other prefs words, or thing, that fhall be due for the fame wares, or other thing, above 10l. in the hundred. And the ftatute of the 12 Ann. ch. 16. varies in nothing from the former acts, but the reducing of legal intereft, for in the penal claufes all the words of the ftatute of H. 8. are taken in.

within the ex

an evafion or

fhift to keep out. of them.

So that the cafes determined on the firft of those statutes, are looked upon as authorities upon all the fubfequent statutes.

Whatever fhift is used for the forbearance, or giving day of payment, will make an agreement ufurious, and is by a court and jury esteemed a colour only.

Suppofe a man purchase an annuity at ever fuch an under price, if the bargain was really for an annuity, it is not ufury. If on the foot of borrowing and lending money, it is otherwife; for if the court are of opinion, the annuity is not the real contract, but a method of paying more money for the reward or intereft, than the law allows, it is a contrivance that shall not avoid the ftatute, by giving the avarice of one kind of men an opportunity of preying on the neceffities of another. 4 Leon. 208. 2 Lev. 7. King. v. Drury. Noy 101. Cro. Eliz. 642, 643.

A bargain on a mere contingency, where the reward is given for the rifque, and not for the forbearance, is not ufurious; for how can it be faid, with any propriety to be for the forbearance, when the day of payment itfelf may never come.

If money is lent to be paid with more than legal intereft; as for inftance, in the cafe of Clayton, 5 Co. 70. where it was agreed between the plaintiff and defendant, on the 14th of December, that the plaintiff fhould lend the defendant 301. to be repaid the firft of June following, and that the plaintiff should have 31. for the forbearance, if the plaintiff's fon should then be living, and if he died, then to repay but 261. of the principal money; this may be ufurious, for if there is a borrowing of money, and a communication for intereft, the device to have gone beyond the rate of 10l. per cent. faid the court, is fraudulent, and within the ftatute, otherwise the statute would be vain. For he might as well have made the condition, that if 20 perfons,

or

or any of them, fhould be living at the day, &c. then he should have 33

He then mentioned several of the most material cafes on this point, and which were chiefly relied on by the plaintiff's counfel, to make this an ufurious contract, and concluded with Mafon v. Abdy, 3 Salk. 390. and laid a stress upon the last reafon of the refolution of the court, because there is an exprefs provifion in the bond to have the principal again, 5 Rep. 69, 70. and 15. and the fame cafe in Moor, Carth. 67. Comb. 25. I Shower 8.

The flightness or reality of the risque seems to be the only guiding rule, that directed the court in the cafe of Bedingfield v. Afhley, Cro Eliz. 741. There A. delivered to B. 100l. who, by indenture, covenanted with A. to pay to every one of A's children, which then were, and should be living at ten years end, 801. A. having then five daughters; it is not ufury, faid the court, but a mere cafual bargain. But if he had been to pay 4c0l. at ten years end, if any were living then, it would be a greater doubt; or if it had been to pay 300l. if any were living at one or two years end, that had been usury, because of the probability that one would continue alive for fo fhort a time, but in ten years are many alterations.

The cafe of Long v. Wharton, 3 Keble 304. though ill reported, feems to be good law: For there, in error upon a judg ment in debt upon obligation to pay 1001. on marriage of the daughter, and if either plaintiff or defendant die before, nothing. The defendant pleads the ftatute of ufury, and that this was for the loan of 301. before delivered, to which plaintiff demurred; and per cur. This is fuch a kind of cafual bargain as bottomree, and the judgment affirmed.

I should be glad to know, why a bond on a man's life is not as much an adventure, as on the bottom of a ship; a fhipmay fink the day after the bargain is made; a man, may die the next day after his life is infured; but whatever favour courts may fhew in contracts beneficial to commerce, they will not establish contracts of another kind to the prejudice of the ftatute.

There can be no forbearance, for what may never be due, as the ship may never return; fo that it is merely a contract upon the rifque.

be fo con.

But fuppofe a contract was made for a fhip's return to New- The rule that caftle from London, or to Dover from Calais, at a season of the governs the court in bottomree bonds, year when there is little or no danger, would not the court is the rifque of look on this as colourable, and a mere evafion of the ftatute? the principal, but And in the cafe of Joy v. Kent in Hardr. Reports, it may appears trived, as to be very plainly from what the court did there, that even a bot- conftrued an evatomree bond may be an evafion of the ftatute, as well as any fion of the ftaother contract, or Lord Chief Juftice Hale would never have tute, as well as fent it to trial.

The first cafe of bottomree is Sharpley v. Hufwell, Cro. Jac. 208. there the rule that governed the court, was the real ritque of the principal, and the hazard the lender run of having lefs than the intereft which the law allows, and poffibly neither principal nor interest.

any other con tract.