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Alatthews qui tam v. Griffiths, Peake's Ni. Pri. 200. had delivered 1797. an opinion decidedly contrary to the verdict then given, Eyre Ch. J. made an order for the Plaintiffs to enter up their judgment as of *Trinity term, according to an undertaking of the Defen

Sir W. YzA. dant, but that execution should be staid, in order to give the Lje

*[ 149 ] fendant an opportunity of applying to the Court for a new trial.

Accordingly a rule having been obtained to thew cause why the judgment thould not be set aside and a new trial be had between the parties,

Adair and Le Blanc Serjts. were this day called upon to begin in support of the rule (a). Wherever more than five per cent. . per annum is taken for the loan or forbearance of money, with the knowledge and by the agreement of the parties, it is usury, whatever the nature of the transaction may be. On the principle of the laws against usury no consent or request of the person borrowing can make any alteration in the case, since those laws were made to protect indigent men against themselves. Indeed the form of pleading on the statute of ufury Thews that the consent of the borrower can never vary the cafe; since it is always ftated that it was “ corruptly agreed,” which necellarily implies confent. Wherever country Bankers have been allowed to receive more than five per cent. they have received it as a compensation for the risk, trouble, and expence of remittance. Here the idea of referring the excess of interest to those circumstances can only be an after-thought (b), as it formed no part of the original transaction, which was a mere transaction of loan and discount, and not of remittance. If indeed it could be divided into two parts, and the Court could understand that after the money had been paid down to the borrower upon the bills, a second application had been made to the banker to remit part of that money to London, a question might then arife if the sum taken under the term of remittance was such as any custom authorized. Whether such a charge of remittance were a device to evade the statute or not, would be a point

(c) The following preliminary objection brought under an apprehenfion of execution to the argument was taken by Shepberd being sued out on the first day of term. Serjt. That a writ of error had been brought Where a point of importance is depending ca the first day of this term, the motion for and the effect of such an objection as the a new trial made on the second, and boil in present would he rolhut out that point in error fince juftified; that the Defendant the court of error, we Mall not allow the therefore had no right to have a motion for objection to prevail. a new trial discussed, having expreffed his (6: In Maddock, q.t. v. Sir B. Hammets intention of withdrawing the lubject from and others, 7 T. R. 185. Lord Kenyon laid: the conlideration of the Court; that he re- “ It shall not be permitted to a pariy who collected a fimilar case in K. B. where the has knowingly received any thing as intereft, Count were of that opinion. Sed per Eyre to apply it afterwards to another account as Ch. i, Perbaps the writ of error was he finds it convenient.”

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Sir B. HAM

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to be determined by the jury. But there is an essential difference between the cases where a charge is profetledly made for commiffion, and where no such charge is professed to be made, but more than five per cent. is actually taken. Nothing can take the latter cafe out of the statute; but in the former it will at once appear to the Court and jury, whether the sum taken is a fair charge for what it purports to be. If this had been a transaction of remittance, the banker would have had some certain rule to go by in his charge, as in the Sudbury case (a), where 58. per cent. were taken; but here one bill for 500l. is drawn at seven days, and another for the same sum at thirty days. Though the party remitting has a right to stipulate for a compensation for the trouble and expence of remittance, yet he is not allowed to charge it in the Mape of intereft. This was the decided opinion of Lord Kenyon in the case of Mattheus qui tam v. Griffiths and others, Peake's Ni. Pri. 200. (6)

Shepherd and Runnington Scrits. contra. It is admitted that more than 57. per cent. may be taken, if taken for commiflion eo nomine. But the name cannot make the transaction more or less ufurious, for if it be substantially ufurious no device will protect the party; and, whether the money be received under one name or another, the reasonableness of the charge must be decided by a jury. The objects of the statute were two: ift, To make void all bonds, contracts, and aflurances for payment of money lent upon ufury. 2dly, To punish the party who takes such ufurious intereft. Before the first of these provisions therefore can attach, there mutt be a contract, 4 Bl. Com. 158. Loydv. Williams, 3 Wilf. 261. Murray v. Hardinge, 2 Bl. 865. per Gould J. The terms of that contract are matter of fact. If it appears not to have been in the contemplation of the parties to take ufurious intereft, it will not avoid the bargain. Abrahams qui tam v. Bunn, 4 Burr. 2253. The question to be tried on this record was the existence of a corrupt contract, which has been negatived by the jury. They have determined that the money received was fairly referable to the expence of remittance as much as if it had been specifically ftipulated for on that account. The contract for difcount was compleie when the borrower said, I want bills difcounted, and the lender answered, I will discount them. The remittance was as distinct a transaction as if it had taken place on

(a) Wincb q. t. r. Fenn. Sittings after (b) The decision of that case was fully H.T.1786. B.R.before Buller J. cit. 2T.R. recognised by His Lordship in Maddosbg.i.

v. Sir B. Haramet! and others, 7 T.R. 185.

another

52.

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another day. If therefore no part of the original contract was 1797 ufurious, nothing subsequent to that will vitiate the bond. 4 Burr. 2253. So in Floyer v. Edwards, Cowp. 115. Lord Mans- Sir B. Hasafield says, “Usury is an agreement originally to pay the principal, with interest above the rate of 5 per cent.” and cites Hawk. P.C. 6.82. f.19. That a party is entitled in some cases to take, not only 5 per cent. for legal intereft, but also a reasonable sum for remitting, andother necessary incidentalexpences, is clearly settled. duriol v. Thomas, 2 T. R. 52. Bodily v. Bellamy, 2 Burr. 1096. The true distinction is, whether the conditions of the contract are imposed on the borrower or not; in the present transaction they were not. So where there is nothing to which the money taken can be applied, but intereft, it is ufury. But here the excess of interest was fairly applicable to the expences of remittance. As to the case of Matthews qui tam v. Griffiths, it may be distinguished from the present, for Lord Kenyon himself observed that a second discount had there actually been paid on the notes in question.

EYRE Ch. J. I will begin with ftating my aflent to the propofition, that where a party on a contract for a loan intentionally takes more than 5l. per cent. per ann. for forbearance of that loan, he is guilty of ufury. But I add to it this further propofition, that whether more than 5l. per cent. is intentionally taken upon any contract for such forbearance, is a mere question of fact for the consideration of the jury, and must always be collected from the whole of the transaction as it passes between the parties. And lam of opinion that it never can be determined that any particular fact conftitutes or amounts to ufury, till all the circumstances with which it was attended, have been taken into confideration. As on the one hand I am to carry into effect a law which the policy of all times has deemed useful, and which expressly provides against any subtle devices or evasions by which its penalties may be eluded (and had it not been so provided, I should have thought it my duty to use all the influence of my situation to prevent such devices and evafions from having any effect); fo on the other hand common justice requires that the whole of the transaction fhould be before the jury, and should be taken fairly, with a juft application of all the circumstances to every conclusion of fact which the evidence will warrant. Being of that opinion I cannot agree to the doctrine laid down at the Bar, that this tranfaction was neceffarily to be taken to be a mere transaction of loan and not of remittance; I think there was room to consider it as a mixed cafe

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of loan and remittance, and that we should do great injustice to

the party, if we were to confine it to one and exclude the other. Sir B. HAM

What is this case in matter of fact? Haviland applies to have his

bills discounted; to which the banker agrees, and calculates the bir W. Yra. intereft upon the time the bills have to run, as is usual. He asks

how Haviland would have the money? Haviland desires to have a part in cash, part in account, and part in bills on London of different times to run. Had the banker told down the money, or tendered bank notes, and had Haviland put them into his pocket, or swept them into his hat, and then said, “ But I want to send money to London ; will you take part of my money back and give me bills?" and the banker had accordingly done fo and given these bills, I cannot see that there would have been any colour for calling it an ufurious transaction. Are we then to adminifter justice on such frivolous distinctions as the difference between the ease I have put, and the case which actually happened? Can the usury depend on the circumstance of the money being told down or not? It was proved by the witness that the banker asked, “How will you have the money?” Which short question includes whether he would have it in cash or in cash notes, or in account, or whether he had any desire to have part of it remitted for him to London? The answer completes the transaction. Few words are necessary among men of business. Bills on London are given to a certain amount, and the reft is taken in cash, or that which is equivalent to cash. When we are construing any particular circumstances given in evidence in order to found a conclusion of fact in any case, and especially in a case of usury arising upon a transaction between men of business, we ought to deal with those circumstances according to the common sense of mankind. Surely there is a great difference between transactions with bankers, and the ordinary transactions between man and man. What passed between the parties, one of them being a banker, was equivalent to an agreement by the banker to discount Havia land's bills in cash; and equivalent to the actual discount of them; and also equivalent to an agreement to remit a part of that cash to London for Haviland; for which last purpose bills on London were given. Is there any thing unreasonable in the nature of this transaction? It has now become the course for bankers in the country to have credit on some house in London which is maintained at no small expence, and by means of which remittances are made with great facility. But let us fimplify this idea. A.

fays

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Sir B. Han

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says to B. take my fpecie, you can find better means of conveying it to London than I can, and pay it to the person in London whom I shall appoint. In such a case, A. could not have sent his fpecie by the poft, but must have hired a waggon for that purpose. Now if B. has established a mode of conveyance which renders the remittance more easy to him, what is that to A. whose money is remitted ? Is not the banker entitled to a recompenice for the accommodation he affords to his customer; and if in such cases the remittance is usually made by bills of thirty days, is not that a fair measure of a recompence, fuppofing there is no device in the transaction, and that the remittance is not intended to be used as a colour for putting more money into the bankers pockets for the mere forbearance of a loan than is allowed by law? I ftated to the jury that if the banker had imposed this remittance on the borrower as a term of the discount, it would have been ufury. I might have added, that if all consideration of loan were out of the case, a banker may lawfully take as much money as he can get for his bills without the least regard to the time they have to run. The authority of a case said to have been determined at Nih Prius has been very properly pressed upon us in the argument. Certainly the opinions of the Judge who is faid to have decided that case are at all times entitled to the highest respect from me, and from every Judge in Westminsterhall, and I never will haftily decide against the advised opinion of that great lawyer. But in my apprehension we are here debating no question of law; we are examining the evidence of a mere matter of fact, on an inquiry into a transaction between a banker and his cuftomer. According to the letter of that case, as it has been reported to us, it was said, that unless the payment is made in ready money (a), the transaction is ufurious; this would at once put an end to the banker's business. Neither in this nor in any other case of the same kind, does it necessarily happen that a single farthing in ready money passes between the parties. Here part of the money was carried to Haviland's account, the whole might

() According to a manufcrijit note of though it may be for the convenience of Mattbezes q. t. v. Griffiths, meotioned by both, I am clear that it is ulury: " And, be council in support of the rule, Lord “ This is an offe!ce againit the statute of Kenyon in the course of his opinion used the Usury, for taking s per cent.for that which fo'k wing expressions : “Where a party was not money at the time, and which was takes 5 por cent. discount as for readv mo- incapable of being converted into money's Dey, and yet does not pay ready money, but worth up to the extent for which the disa bulis payable at a future day, though both count was taken" parties consent to this tranlation, and

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