"her, or if, upon demurrer, judgment shall be given against the plaintiff, the defendant shall recover treble costs." 66 66 66 Treble costs. used in the iron ed, as might have been before passing recited act, except the articles herein specified. + Sect. 37. By 26 Geo. 3. c. 89. it is enacted, "That it shall From July 10, " and may be lawful to export from Great Britain to the British 1786, such tools " islands in the West Indies, or to any other foreign part or place and steel manu"whatever, any tools or utensils made use of in the iron or steel factures, &c. "manufactures of this kingdom, which might have been legally may be exportexported before the passing of the above recited act (except the "several articles hereinafter particularly enumerated; that is to say, rollers either plain, grooved, or of any other form or deno"mination, of cast iron, wrought iron, or steel, for the rolling of " iron, or any sort of metals, and frames, beds, pillars, screws, "pinions, and each and every implement, tool, or utensil there"unto belonging; rollers, flitters, frames, beds, pillars, and "screws for slitting mills; presses of all sorts in iron, steel, or "other metals, which are used with a screw exceeding one inch " and a half in diameter; or any parts of these several articles, " or any model or models of any of the beforementioned utensils, implements, and machines, or any part or parts thereof; and all "sorts of utensils, engines, or machines used in the casting or "boring of cannon, or any sort of artillery, or any parts thereof, " or any model or models of tools, utensils, engines, or machines "used in casting or boring of cannon or any sort of artillery, or "any parts thereof; hand-stamps, dog-head stamps, pulley stamps, hammers, and anvils for stamps, presses of all sorts, "called cutting-out presses, beds and punches to be used there"with; piercing presses of all sorts, beds and punches to be used therewith, either in parts or pieces, or fitted together; scoring "or shading engines, presses for horn buttons, dies for horn buttons, rolled metal with silver thereon, parts of buttons not fitted up into buttons, or in an unfinished state; engines for chasing, "stocks for casting buckles, buttons, and rings; die-sinking tools "of all sorts, engines for making button-shanks, laps of all sorts, "tools for pinching of glass, engines for covering of whips, bars of "metals covered with gold or silver, burnishing stones commonly "called blood stones, either in the rough state or finished for "use); any thing in the said recited act to the contrary in any"wise notwithstanding." 66 66 66 66 + Sect. 38. By 26 Geo.3. c.89. s. 2. "It shall not be lawful for No person to have in possesany person or persons, in the kingdom of Great Britain, to export son, with intent "to parts beyond the seas (except to Ireland), or to have in his, her, to export (ex66 or their possession, with the intent so to export, any of the tools cept to Ireland) " and utensils hereinafter mentioned; that is to say, wire moulds any of the articles herein spe"for making paper; wheels made of metal, stone, or wood, for cified. Recited cutting, roughing, smoothing, polishing, and engraving glass; act, so far as repurcellas, pincers, sheers, and pipes, used in blowing glass; late ers of articles potters wheels and potters lathes for plain, round, and for therein enumeengine-turning tools, used by saddlers, harness-makers, and rated, to extend bridle-makers, namely, cantle-strainers, side-strainers, point- to exporters of articles specified strainers, creasing-irons, screw-creasers, wheel-irons, seat-irons, in this act. "pricking-irons, bolstering-irons, clams, head-knives; and that "the said recited act, so far as the same concerns the exporters 66 66 or possessors of the tools and utensils therein enumerated or R R 2 "described lates to export Continuance of this act. "described, shall extend, or be construed to extend, to all and every the exporters or possessors of the tools and utensils herein "enumerated or described, as fully, to all intents and purposes, "as if the same were repeated and re-enacted in the body of this "act." + Sect. 39. By 26 Geo. 3. c. 89. s. it is further enacted, "That this act shall continue in force until the end of the next "session of parliament, and no longer."-Made perpetual by 35 Geo. 3. c. 38. 66 66 66 By sect. 2. of 26 Geo. 3. c. 89. "It is lawful to export any "tools made use of in the iron or steel manufactures of this kingdom, which might have been exported before the 25 Geo. 3. except rollers either plain, grooved, or of any other form or de"nomination, of cast iron, wrought iron, or steel, for the rolling "of iron or of any sort of metals, and frames, beds, pillars, screws, "pinions, and each and every implement, tool, or utensil thereto belonging; rollers, slitters, frames, beds, pillars, and screws "for slitting mills, presses of all sorts in iron, steel, or other "metals, which are used with a screw exceeding one inch and a "half in diameter, or any parts of these several machines, or any "model or models of any of the beforementioned utensils, imple"ments, and machines, or any part or parts thereof; and all "sorts of utensils, engines, or machines, used in the casting or boring of cannon, or any sort of artillery, or any parts thereof, "or any model or models of tools, utensils, engines, or machines, "used in casting or boring of cannon, or any sort of artillery, or any parts thereof, and stamps, dog-head stamps, pulley stamps, "hammers and anvils for stamps; presses of all sorts called cut"ting-out presses, beds and punches to be used therewith; piercing presses of all sorts, bed and punches to be used therewith, either in parts or pieces, or fitted together; scoring or shading engines, presses for horn buttons, dies for horn buttons, "rolled metal with silver thereon, parts of buttons not fitted up "into buttons, or in an unfinished state; engines for chasing, "stocks for casting buckles, buttons, and rings; die-sinking tools "of all sorts, engines for making button-shanks, laps of all sorts, "tools for pinching of glass, engines for covering of whips; bars "of metals covered with gold or silver, burnishing stones com"monly called blood stones, either in the rough state or finished "for use." 66 66 66 By 44 Geo. 3. c. 70. Machinery and tools for erecting a mint in Denmark are allowed to be exported. And 50 Geo. 3. c. 63. The like for the Brazils. 7. Usury. In treating of USURY, I shall consider, 1. What shall be deemed usury. 2. How it is restrained by common law. 3. How by statute. As to the FIRST POINT, viz. What shall be deemed usury. 3 Inst. 151. B. Usury, 12. Sect. 1. It seems that usury, in a strict sense, is a contract upon Wood's Inst. the loan of money to give the lender a certain profit for the use of b. 3. p. 425. it, upon all events, whether the borrower make any advantage of it, or the lender suffer any prejudice for the want of it, or whether 2 Strange, 816. it be repaid on the day appointed or not. Sect. 2. And in a larger sense it seemeth, that all undue advantages taken by a lender against a borrower come under the notion of usury, whether there were any contract in relation thereto or not; as where one in possession of land, made over to him for the security of a certain debt, retains his possession after he hath received all that is due from the profits of the land. 1243. Gibs. 1070. Cowper, 793. Sect. 3. But it hath been resolved, that an agreement to pay 2 R. Abr. 801. double the sum borrowed, or other penalty, on the non-payment 26 Edw. S. 71. of the principal debt at a certain day, is not usurious, because it 2 Inst. 89. is in the power of the borrower wholly to discharge himself, by Cowper, 113. repaying the principal according to the bargain. As to the SECOND POINT, viz. How usury is restrained by the common law. 5 Rep. 69. 2 Inst. 506. Sect. 4. It is said, that anciently it was holden to be abso- 3 Inst. 151. lutely unlawful for a christian to take any kind of usury, and that 2 R. Abr. 800. whosoever was guilty of it, was liable to be punished by the cen- Palm. 293. sures of the church in his life-time; and that if after death any Temp. one was found to have been a usurer while living, all his chattels Hardwicke, were forfeited to the king, and his lands escheated to the lord of the fee. 420. Eq. Ca. Ab. Sect. 5. Also it seemeth to have been the opinion of the makers 2 Ventris, 42. of some late acts of parliament, as 5 Edw. 6. c. 20. 13 Eliz. 2 Vern. 145. c. 8. s. 5. and 21 Jac. i. c. 17. s. 5. that all kinds of usury are 288. contrary to good conscience. 1 R. Abr. 18. Sect. 6. And agreeably hereto it seemeth formerly to have been 2 R. Abr. 801. the general opinion, that no action could be maintained on any promise to pay any kind of use for the forbearance of money, because that all such contracts were thought to be unlawful, and consequently void. 2 Roll. 239. Palm. 293. 802. 3 Keble, 15. C. Car. 273. Sect. 7. But it seems to be generally agreed at this day, that 1 R. Abr. 25. the taking of reasonable interest for the use of money is in itself 2 R. Abr. 782. lawful, and consequently that a covenant or promise to pay it, in Winch. 114. consideration of the forbearance of a debt, will maintain an ac- 1 Ven. 198. tion; for why should not one who has an estate in money be as well allowed to make a fair profit of it, as another who has an estate Exod. c. xxii. v. in land; and what reason can there be, that the lender of money 25. should not as well make an advantage of it as the borrower? Levit. c. xxv. Neither do the passages in the Mosaical law, which are generally Deuter. c. xxiii. urged against the lawfulness of all usury, if fully considered, so v. 19, 20. much prove the unlawfulness, as the lawfulness of it; for if all usury v. 36, 37. No more than five per cent. shall be taken for the loan of money. Contracts on which more than five per cent. is reserved or taken, are void. Whoever shall usuriously take more than five per cent. shall forfeit treble value. 3 Atk. 154. 3 Keble, 259, 260. 1 Vent. 253. 3 Wils. 250. (a) C. Jac. 25. Moor, 644. Noy, 41. C. Car. 283. 4 Leonard, 43. C. Eliz. 20. 2 Leo. 38. 1 Atk. 340. 1 Ves. 142. Dalis. 12. usury were against the moral law, why should it not be as much so in respect of foreigners, of whom the Jews were expressly allowed to take it, as in respect of those of the same nation, of whom alone they were forbidden to receive it? From whence it seems clearly to follow, that the prohibition of it to that people was merely political, and consequently doth not extend to any other nation. As to the THIRD POINT, viz. How usury is restrained by statute. 66 66 Sect. 8. By 12 Ann. c. 16. "No person whatsoever shall, upon any contract, take, directly or indirectly, for loan of any money, wares, merchandize, or other commodities whatsoever, "above the value of five pounds, for the forbearance of one hun"dred pounds for a year, and so after that rate for a greater or "lesser sum, or for a longer or shorter time." Sect. 9. And by 12 Ann. c. 16. it is enacted, "That all bonds, "contracts, and assurances whatsoever, for payment of any prin"cipal, or money to be lent, or covenanted to be performed "upon, or for any usury, whereupon or whereby there shall be "reserved or taken above the rate of five pounds in the hundred, " as aforesaid, shall be utterly void." Sect. 10. And by 12 Ann. c. 16. s. 2. "All and every person "or persons whatsoever, which shall, upon any contract, take, accept, and receive, by way or means of any corrupt bargain, "loan, exchange, chevizance, shift, or interest of any wares, mer"chandize, or other thing or things whatsoever, or by any deceit"ful way or means, or by any covin, engine, or deceitful conveyance, for the forbearing or giving day of payment for one whole year, of and and for their money or other thing, above the sum " of five pounds, for the forbearing of one hundred pounds for a year, and so after that rate for a greater or lesser sum, or for a (a) longer or shorter term, shall forfeit and lose for every such "offence the treble value of the money, wares, merchandizes, "and other things so lent, bargained, exchanged, or shifted.” 66 66 The expositions which were made of the former statutes of usury being equally applicable to this, which is penned almost in the very same words, I shall take notice of the principal of them, as well as decisions upon this statute, as that— Sect. 11. A contract made before the statute is no way withCon. Ray. 197. in the meaning of it, and therefore it is still lawful to receive six per cent. in respect of any such contract. Bodily v. Bellamy, 2 Burr. 1094. Salkeld, 344. 2 And. 121. Moor, 752. C. Jac. 32, 33. Sect. 12. A bond given at Calcutta in the East-Indies, where both parties reside at the time, on which nine per cent. is reserved, is not within the statute. Sect. 13. A bond made to secure a just debt, payable with lawful interest, shall not be avoided be reason of a corrupt agreement between the obligors, to which the obligee was no way privy; as where A. being indebted to B. in a hundred pounds, agrees to give him thirty pounds for the forbearance of that hun2 Strange, 1249. dred pounds for a year, and gives him a bond of sixty pounds for Yelverton, 47. 2 Burr. 1077. 7 Modern, 118. L. Nisi P. 27. payment payment of the thirty pounds, and for the payment of the hundred pounds enters into a bond of two hundred pounds, together with B., for the payment of a true debt of one hundred pounds due from B. to C. Sect. 14. The receipt of higher interest than is allowed by the Pollard v. statute, by virtue of an agreement subsequent to the first contract, Scholey, Cro. Eliz. 20. does not avoid an assurance fairly made, and agreeable to the Ray. 191. statute, but only subjects the party to the forfeiture of treble 4 Burr. 22. 53. value: for the words are, "That all assurances for the payment "of any principal, &c. whereupon or whereby there shall be re"served or taken above the rate of five pounds in the hundred, "&c. shall be utterly void." 112. Sect. 15. So also where A. sold goods at three months Floyer v. Edcredit, but stipulated that, if the money was unpaid, the vendee wards, Cowp. should allow him a halfpenny an ounce for every month until the debt was discharged, which exceeded the legal rate of interest, yet the contract being a bona fide sale, and the subsequent agreement according to the usage in that particular branch of trade, it was not usurious; but it would have been otherwise if the sale had been merely colourable, to cover the loan and evade the statute. 462. + Sect. 16. So where A. was fairly indebted to B. in one Gray v. Fowler, thousand one hundred and twenty-five pounds, and on A. de- 1 H. Bl. Rep. siring time to pay it, B. insisted that one hundred and fifty pounds should be added to the debt, as he would have nothing to do with interest, and A. accordingly gave him five acceptances for these two sums, payable within fourteen months, it was held that the bona fide debt subsisted unimpeached by the subsequent usurious transaction. + Sect. 17. So in an action for usury, where it was proved to Winch v. Fen, be the custom to discount bills in London for persons in the Sett. B. R. Hilary Term, country, and to charge on such bills the usual discount of interest 1786. of five per cent. and also five shillings per cent. on the gross sum, See 2 Term as commission to answer the extraordinary expenses of clerks, Rep. 52, notis &c. kept for this business, it was adjudged not to be usury. + Sect. 18. So where a bill of exchange indorsed over is not Auriol v. duly paid, the indorsee may charge the indorser with interest, Thomas, 2 T. Rep. 52. exchange, and other incidental expenses, beyond the amount of five per cent. if such charges are reasonable, warranted by usage, and not made a colour for usury. 235. Sect. 19. But if a sum of money is lent upon an agreement Fisher qui tam v. to pay legal interest, and a premium over and above is paid when Beasley, Doug. the money is advanced, the security is void, although such premium do not of itself exceed the legal interest, but the penalty is not incurred till more than legal interest is actually received. Sect. 20. The grant of an annuity for lives not only exceeding Tanfield. the rate allowed for interest, but also exceeding the known pro- Richards v. Finch, C. El. 27. portion for contracts of this kind, in consideration of a certain Brown, Cowp. 728. sum Confirmed by Ld. Thurlow, Hil. 21 Geo. 3. Brown's Rep. Chan. 93. Ld. Irnham v. Child. |