Richards v. Murray v. 3 Wils. 390. 2 Roll. 48. 1 Atk. 340. 3 Keble, 304. sum of money, is not within the meaning of the statute, unless repay Sect. 21. Therefore where A. applied to B. to borrow six hundred pounds, and B. agreed to lend it him, and actually advanced two hundred pounds of the money, on a deposit of certain securities, but when A. applied for the remaining four hundred pounds, B. by falsely pretending that he had not the money himself, but must get it from a friend, who, he said, never lent money but upon annuity at six years purchase, which was consented to and given by A. accordingly, and B. took five per cent. procuration-money, this loan, though in the shape of an annuity, was held usury. + Sect. 22. But where the loan was in the form of an annuity, and there was a clause in the deed, that the borrower might repay the sum given for the annuity at a future period, the court held it not usury, although the clause seemed to make the sum advanced the loan, and the annuity the interest; for the repayment was casual, and depended on the borrower himself, so that it was not in the lender's power to have his money at all events. Sect. 23. No contract is usurious by which the lender runs the hazard of losing all his money, both principal and interest; as where on the loan of a certain sum for a year, for the victualling of a ship, it is agreed, that if the ship return, the lender shall have so many thousand fishes, at such a rate, which exceeds the interest allowed by the statute, and if the ship never return, or if it perish by unavoidable casualties of sea, fire, or enemies, that then he shall have nothing. Sect. 24. But it is clear, that if the interest only be hazarded on such a contract, and the whole principal secured, the whole Said to be good is usurious. law, 1 Atk. 341. Vide C. Eliz. 741. Cro. Jac. 507. Shower's Rep. 8. Chesterfield v. 1 Atk. 339. Moniset v. King, 2 Burr. 891. Morse v. Wilson, Sect. 25. So also where on the loan of thirty pounds a bond is given for the payment of a hundred pounds, on the marriage of a daughter of one of the parties; "provided, that if either of "them should die before, that then nothing should be paid." + Sect. 26. So a loan of five thousand pounds, to be paid ten thousand pounds on the death of A. in the life-time of B. is not a usurious contract within 12 Ann. c. 16. for in this case, if the contingency happen one way, the whole money is lost. + Sect. 27. So where A. lent one hundred pounds to B. for four years without interest, but B. agreed to find the daughter of A. with meat and drink for that time, and also to take her into partnership, she to pay a moiety of the charges and losses of the business, and to receive half of the profits, it was held not to be usury, although the pecuniary advantages gained by A. might exceed five per cent. Sect. 28. But if the borrower of money give a bond for the 4 T. Rep. 353. principal and interest at five per cent. and covenant at the same time also to pay to the lender a certain portion of the profits of a a trade carried on by him in partnership with another person, this is an usurious contract, and the obligee cannot recover on the bond; for though he was to gain by the profits, he was not to stand to the losses of the trade. Sect. 29. Also it hath been resolved, that an agreement to pay Button v. Durnmore than the lawful interest for the loan of a certain sum at such ham, Cro. Eliz. 642. a day if A. B. shall be then alive, and if he shall be dead, then to Clayton's case, pay such a sum which is less than the principal, is void by the 5 Co. 70. statute; for if such a contingency would exempt the case out of the statute, by the same reason twenty lives might be added, and the statute wholly evaded. + Sect. 30. So also if the contingency be on a young and Richards v. healthy person dying within three months, this shall be deemed Brown, usurious; for being so slight, it appears to be a mere evasion. Cowp.770. Sect. S1. An assurance made in pursuance of a fair agreement C. Jac. 677. for such interest as is allowed by the statute, shall not be avoided 2 Roll. 414. by the fault of the scrivener, who draws it up in such a manner as to bring it within the express letter of the statute. Het. 11. Sect. 32. As where the parties agree that five pounds shall be Hard. 418. paid for the loan of a hundred pounds for a year, and the 2 Mod. 307. scrivener, in drawing the bond for it, doth, without the knowledge of the parties, who are illiterate persons, make the five pounds payable at the end of half a year. Sect. 33. So where on the fair loan of a hundred pounds, agreed to be paid with common interest, a mortgage is made for the hundred pounds, with a proviso, that it shall be void on payment of one hundred and five pounds at the end of one year, without any covenant for the mortgagor to take the profits till default be made of payment, so that in strictness the mortgagee is intitled both to the interest and profits. + Sect. 34. So also if a bond be conditioned for the payment Le Grange v. of one hundred pounds by quarterly payments of five pounds Hamilton, each, and interest at five per cent. this shall not be rendered a 3. C. 2 H. Bl. 4 T. Rep. 613. usurious contract by the indorsement of a memorandum thereon, Rep. 144. That at the end of each year the year's interest due shall be "added to the principal, and then the twenty pounds received in "the course of the year deducted, and the balance remain as the principal." 66 + Sect. 35. So if A. for one hundred and twenty pounds grant an annuity of twenty pounds out of a living, with a promise of redemption in five years, and give bond for the performance, this is not usury, although the agent in drawing the deed state that it was a loan of money. Murray v. 2 Bl. Rep. 859. 2 Bur. 715. Sect. 36. The reservation of a greater sum than is allowed by 5 Co. 69. the statute for interest, upon the non-payment of the principal at C. Jac. 509. the end of the year, is not usurious within the statute, because Cowper, 113. it is in the power of the borrower to avoid the payment of the C. Eliz. 643. money so reserved, by paying the principal at the day appointed; 1 Lut. 464. yet it seemeth clear, that if it were originally agreed that the 1 Atk. 342. principal money should not be paid at the time appointed, and 1 Atk. 351. that 5 Co. 69. See Mo. 397. Cowper, 794. 2 Str. 1243. Tate v. Wellings, 3 Term Rep. 531. (a) C. Jac. 251. 508. 2 Roll. 48. 2 Lev. 7, 8. (b) Lutw. 273. 466. that such clause was inserted only with an intent to evade the statute, the whole contract is void; for the construction of cases of this nature must be governed by the circumstances of the whole matter, from which the intention of the parties will appear in the making of the bargain, which, if it was in truth usurious, is void, however it may be disguised by a specious assurance. + Sect. 37. Therefore the loan of money produced by the sale of stock, on an agreement that the borrower shall replace this stock on a certain day, or repay the money on a subsequent day with such interest in the meantime as the stock itself would have produced, is not usurious, though the interest exceed five per cent. unless the transaction be colourable, and a mere device to obtain more than legal interest. Sect. 38. It is not (a) material whether the payment both of the principal and also of the usurious interest be secured by the same (b) or by different conveyances; but that all writings whatsoever for the strengthening such a contract are void. Sect. 39. A contract reserving to the lender a greater advantage than is allowed by the statute, is equally within the meaning (c) C. Jac. 440. of it (c) whether the whole be reserved by way of interest, or in part only under that name, and in part by way of rent for a house, let at a rent plainly exceeding the known value. Spurrier v. 12 July, 1792. S. C. 4 Bro. 3 Keble, 142. Con. Noy, 2. Walton v. Shelley, 1 Term Rep. 296. Sect. 40. But where A. agrees to pay B., for the purchase of two houses, the sum of £430: 10s., and that £200 of the money should be paid immediately, and the remainder at Michaelmas, with interest thereon at five per cent., and the houses being unoccupied, A. was to be let into immediate possession; but that if the said balance should not be paid at Michaelmas, A. agreed to pay, in lieu of interest on the same, a clear rent of £42 a year, out of which B. was to permit interest at the rate of five per cent. in respect of the sum first paid to him to be deducted; this agreement was adjudged not be usurious. Sect. 41. A second bond made after the forfeiture of a former, and conditioned for the receipt of interest according to the penalty of the forfeited bond, is as much within the statute as if it had been made before the forfeiture; for if such a practice should be allowed, nothing could be more easy than to elude the statute; and though the whole penalty be due in strictness to the obligee, yet the true principal debt is in conscience no greater after the forfeiture of the bond than it was before. + Sect. 42. So also if a promissory note, originally given upon a usurious consideration, be indorsed over to A., and B. gives A. a bond in consideration of his delivering up the note of hand, it seems admitted, that, on the bond being put in suit, and the statute of Usury pleaded, the defendant may give evidence that the promissory note was orginally given on a usurious consideration, and thereby destroy the validity of the bond. Sect. 43. But although the deed, securing the repayment of the money borrowed, be drawn pursuant to the statute, yet if the whole of the principal be not fairly advanced, it is void. + Sect. Easter Term, + Sect. 44. As where A. having occasion for a sum of money Davidson v. applied to B. and offered to secure the sum on a mortgage, and Barnard Pitt, B. said that all his money was in the funds, and that to sell out 33 Geo. 3. stock at that time would be a considerable loss, stock then stand- Espin. N. P. 11. ing at 73, but that if A. would take the stock at 75, he should have the sum he wanted, and accordingly received £1500 in stock valued at 75, which he sold out the same day at 724, that being the then market price, it was held, that the executor of the mortgagee could not maintain an ejectment on the mortgage deed. + Sect. 45. So also if the discounter of a bill of exchange make Pratt v. Wilthe holder take goods at a higher price than they are worth upon ley, Sit. Mich. a fair estimate, it is usury; for a party by substituting goods in- Espin, N. P. 40. stead of money shall not, by colour of their pretended value, take above legal interest, and evade the statute. N.P. + Sect. 46. So if A. indorse a note of £200 to B. who ad- Massa v. Dowvances A. one hundred and ninety-seven pounds three months ling, Stra. 1243. before it is due, and at the end of the three months takes another note on advancing £3 for other three months, this is usury. + Sect. 47. So also where A. lent B. several sums of money Moor v. Battie, on mortgage, and B. having occasion for more, A. advanced him Amb. Rep. 371. £1900 by selling out £1000 South-Sea Annuities, which at that time were under par, and sold at a loss of £76 upon the whole, and paid him the money for which they sold, and took a mortgage from him for £1000, at five per cent. interest, with a covenant to reduce the interest to four per cent. if paid within such a time, it was held usurious. + Sect. 48. So where upon a negociation for a loan of money Lowe v. Waller, the lender pretends that is inconvenient to him to advance Dougl. 736. money, but furnishes the borrower with goods to the amount of the sum wanted, and the goods are afterwards sold by the intervention of a broker recommended by the lender, and a security taken by the lender, payable at a future day, for a sum far exceeding the value of the goods, and five per cent. interest, this is a usurious loan, and the security is void. + Sect. 49. It seems also, that if A. in consideration of advancing £45, for which he takes the borrower's note of hand, payable on demand, stipulates to have half of the profits upon a resale of certain goods intended to be purchased by the borrower with the money, and two hours' after the purchase demands payment of the note, and the same night puts a person into possession jointly for himself and the borrower, and the goods upon a resale produce only a neat profit of five pounds, this is a usurious transaction. Jestens v. 793. 3 Wils. 250 to 262. + Sect. 50. To incur the penalties of usury there must be, Lloyd qui tam First, a corrupt contract between the parties; Secondly, monies Williams, or other things lent; Thirdly, above five per cent. received by the lender for forbearance; and wherever these three matters concur, the offence of usury is completed, although no time is mentioned with respect to repayment of the principal, for the offence may be committed though the principal money may never be paid. + Sect. per Dougl. 225. + Sect. 51. For although the very contract avoids the security, 2 Bl. Rep. 796. yet the treble value is not forfeited until something be taken above the legal rate of interest; and therefore, where G. borrowed a hundred pounds of B. on his bond, conditioned to the same at six months, with five repay cent. per annum, and gave two guineas to B. at the time the money was advanced as a premium for the loan, and the principal and two pounds ten shillings interest were repaid at the end of six months, it was held, that the bond was void, but that the usury was not committed until the half year's interest was received, for the penalty is only incurred by "taking, accepting, and receiving more than legal interest." Johnston qui 66 + Sect. 52. So where A. gave credit to B. for jewels to a certain amount, but B. not being able to raise money on them desired that A. would exchange them for old plate; and A. said that old plate was as good as money, and accordingly gave him money the value of as much old plate as was less by a hunEspinasse N.P. dred pounds than what the jewels had been sold for, for the whole amount of which B. was to stand indebted; it was held that A. was not liable to the penalty of the statute. 41. 1 Buls. 17. 20. Yel. SO, 31. Noy, 171. 2 Keble, 690. in Sect. 53. The receipt of interest before the time when it is in strictness due, being voluntarily paid by the debtor, for the greater convenience of the creditor, or for any other such like Con. 1 Leon. 96. consideration, without any manner of corrupt practice, or any previous agreement of this kind at the making of the first contract, does not make the party liable to the forfeiture of the treble value. Noy, 37. 1 Leon, 96. Rex v. Upton, Sect. 54. In an assurance for the payment of fifty shillings for the use of one hundred pounds for six months, the computation shall be by calendar and not by lunar months, because by the latter the interest would exceed the rate allowed by the statute. 66 66 In what way the offender may be proceeded against. Sect. 55. By 12 Ann. c. 16. s. 2. it is enacted, “That the one moiety of all the forfeitures shall be to the queen, and the other moiety to him or them that will sue for the same, in the same county where the several offences are committed, and not elsewhere, by action of debt, bill, plaint, or information, in "which no essoign, wager of law, or protection, shall be al"lowed." Sect. 56. But by 31 Eliz. c. 5. "All actions, suits, bills, in"dictments, or informations, on any penal statute where the "penalty is limited to the queen only, shall be brought within "two years after the offence committed, and when limited to the queen and any other person, within one year next after the "offence committed; but in default thereof, then the same may "be brought for the queen at any time within two years after 66 that year ended." 66 + Sect. 57. It seems, that an indictment will lie on the 12 Ann. c. 16. although that mode of proceeding is not mentioned in the statute. + Sect. |