Opinion of the Court, per DAVIS, J. "My impression is," said COMSTOCK, J., "that the act must be construed as a repeal of the statutes of usury as to all contracts or corporations stipulating to pay interest, thus leaving the contracts in full force according to their terms, and that such an act is liable to no constitutional objection." (15 N. Y., p. 85). BROWN, J., (at page 154), in language more explicit and emphatic, said "The effect of the act of April, 1850, is to repeal the statute of usury so far as it applies to corporations, the condition of this class of contracts becomes the same as * * * if the usury laws never existed. The barrier wall, the place of strength which the usury laws set up between the lender and the borrower, is thrown down and leveled with the ground, whenever the borrower is a corporation. Henceforth the law offers no rewards for bad faith and broken promises to this class of contractors." PAIGE, J., (at page 229), says: "The act of 1850 is in substance a repeal of the statutes of usury so far as relates to corporations. The language as well as the spirit of the act applies to antecedent as well as subsequent usurious agreements." The argument of the learned judges through which this conclusion was reached is, in brief, that the forfeiture of the debt under the usury statutes is in the nature of a penalty; that the repeal of a law giving a penalty carries with it the penalty itself where no fixed right to it had previously been established by adjudication, or no reservation of it made in the repealing act; and that a borrower had no such right to allege the usury in his contract, as deprived the legislature of power to repeal the law giving the defense of usury. The case does not in my opinion decide that the usury laws were repealed as to the contracts of corporations stipulating to pay interest, by the act of 1850; nor does the eighth proposition necessarily involve that result; but the quotations I have made show that such was the opinion of several very able jurists of that court. We are referred for the intention of the legislature in enacting the law under consideration, to the reports of committees TIFFANY.-VOL. VI. 85 Opinion of the Court, per DAVIS, J. of that body, and more particularly to the report of Senator George R. Babcock, himself an able lawyer, showing that he regarded it as a repeal pro tanto of the usury laws. But I think our duty requires us to seek the construction of the act in the language of the enactment; in the provisions of the statute which it was designed to affect; in its necessary operation upon them, and the scheme or system of policy they had created; and in the mischief it was intended to remedy or prevent. If one object of the act was to enable corporations to borrow money more readily for the purposes of their business, then certainly it was essential that the contracts made by them should be of such a character as to be valid both as to principal and sureties; otherwise this object might be defeated by the inability to give collateral undertakings which should be free from the taint of usury. The form of the act, out of which all the discussion arises, it seems to me, is easily explicable. Had the act simply declared that the usury laws were repealed so far as they affected the contracts of corporations, or that the contracts of corporations should be excepted from the provisions of those laws, the whole mischief would by no means have been reached and remedied. A repeal of our laws would have had no extraterritorial effect; and so a New York corporation that had borrowed money in England, or elsewhere, on a contract governed by foreign laws, would have been able to interpose and prove such laws as a defense, notwithstanding our own were repealed as to similar contracts made in this State. It was important therefore to adopt some form of enactment which would wholly uproot the mischief against which it was aimed. The act of 1850 accomplished that purpose; for while it made valid the contracts of corporate borrowers in this State, whether domestic or foreign, by constructively repealing our usury laws as against them, in a form which operated both retrospectively and in future, it also debarred all corporations from alleging usury in the courts of our State, no matter where their contract was made, or by what lex loci it was to be governed. The act both repeals and prohibits; and there Opinion of the Court, per DAVIS, J. by reaches a common result as to all contracts within its scope; as to domestic, by removing the ground of illegality; as to foreign, by shutting out, in our courts, a defense which it could not otherwise abrogate. My conclusion is that the notes of the railroad company were not usurious, but were enforceable against the company upon their intrinsic validity; that the defendants are guarantors of lawful contracts, and therefore liable upon their guaranties; and that the judgments below should be reversed, and new trials ordered, with costs to abide the event. All the judges concurring, Judgment reversed. Opinion of the Court, per BROWN, J. 33 676 134 153. 33 676 144 31 33 676 JOSIAH D. NEVIUS and PETER NEVIUS, Executors, &c., of Jane Nevius, deceased, v. JOHN DUNLAP, Executor of David Dunlap, deceased. 150 410 Where the consideration of a bond proceeds from a third party, who is acting in the name, and for the benefit of the obligee thereof, such obligee is a party to the contract in such a sense as to be entitled to the proper remedies to reform or to collect the same. To entitle a party to a decree of a court of equity reforming a written instrument, he must show first, a plain mistake clearly made out by satisfactory proofs. He must also show that the part omitted or inserted in the instrument, was omitted or inserted contrary to the intent of both parties, and under a mutual mistake. E. G. Lapham, for the plaintiffs. T. R. Strong, for the defendant. BROWN, J. This action is brought principally to reform a bond set out in the complaint, and made under the following circumstances: In May, 1838, Andrew Dunlap, of Ovid, in the county of Seneca, was the owner of 517 acres of land, situate in that town, which he desired to divide and distribute amongst his children, providing at the same time for the support and maintenance of himself and his wife, Mary, during life. He had four sons: Josiah, David, the defendant's testator, Andrew, Jr., and William; and one daughter, Jane Nevius, the plaintiffs' testatrix. He caused the land to be surveyed, and a diagram made of it. That part of it designed for his son William, consisting of one hundred acres, he conveyed to Andrew, Jr., who paid William the estimated value of it in money. On the 10th of May, 1838, he conveyed to Josiah one hundred acres, and to Andrew, Jr., one hundred acres, which included the homestead. To his son David he conveyed two hundred and seventeen acres. This included one hundred acres, the benefit of which was designed for Mrs. Nevius, as her share of his estate, and for which David was to pay her $3,000, the estimated value thereof at a future Opinion of the Court, per BROWN, J. time. It was a part of the arrangement that Josiah, David and Andrew were to provide means for the support of their father and mother during life, and were to become legally bound therefor to the extent of the annual interest upon the four shares of the lands which had been conveyed to them, estimating each share at $3,000. As the contribution of the share of William, conveyed to Andrew, Jr., the latter was to execute to his father a lease for life of a part of the dwellinghouse and premises, which was executed and delivered accordingly. David was to make his bond to his sister, Mrs. Nevius, conditioned to pay her $3,000, the estimated value of her share, upon demand, with a provision in respect to the payment of interest, and to which I shall presently refer, that being the subject of the controversy in this action. Josiah and Andrew, Jr., in fulfillment of the agreement, each executed to their father their separate bond, conditioned to pay $210 annually to him, or Mary his wife, during their lives; and David, in like manner, executed to his father a similar bond, conditioned to pay $420 annually during the same time. At the same time David executed and delivered to Mrs. Nevius the bond in suit, which is in the penal sum of $3,000, conditioned to pay to her $3,000 on demand. It then recites that David Dunlap, the obligor, had become obligated to pay Andrew Dunlap and Mary his wife $210 yearly for their lives, being the amount of interest on this obligation, and then added: "It is, therefore, expressly understood by this condition that when the aforesaid obligation to Andrew Dunlap ceases to be obligatory, then the balance due on this obligation shall draw lawful interest, and not before. And it is further expressly understood that in proportion to the payments made on this obligation, the payments on the other shall be diminished, and be no longer obligatory." The provision quoted was obviously made to protect David against the double payment of interest upon the estimated value of Mrs. Nevius' share in the estate. Whenever his liability to pay interest to his father (which was the paramount obligation) should cease by death of the obligees or otherwise, then his liability to pay interest to Mrs. Nevius upon the bond to her should commence, and |