Matthews qui tam v. Griffiths, Peake's Ni. Pri. 200. had delivered 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 Defendant, but that execution fhould be ftaid, in order to give the Lefendant an opportunity of applying to the Court for a new trial. Accordingly a rule having been obtained to fhew caufe why the judgment fhould not be fet afide and a new trial be had between the parties, Adair and Le Blanc Serjts. were this day called upon to begin in fupport 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 ufury, whatever the nature of the tranfaction may be. On the principle of the laws against ufury no confent or request of the perfon borrowing can make any alteration in the cafe, fince thofe laws were made to protect indigent men againft themfelves. Indeed the form of pleading on the ftatute of ufury fhews that the confent of the borrower can never vary the cafe; fince it is always ftated that it was "corruptly agreed," which neceflarily implies confent. Wherever country Bankers have been allowed to receive more than five per cent. they have received it as a compenfation for the rifk, trouble, and expence of remittance. Here the idea of referring the excess of intereft to those circumftances can only be an after-thought (6), as it formed no part of the original tranfaction, 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 fecond application had been made to the banker to remit part of that money to London, a question might then arife if the fum taken under the term of remittance was fuch as any cuftom authorized. Whether fuch a charge of remittance were a device to evade the statute or not, would be a point (a) The following preliminary objection to the argument was taken by Shepherd Serjt. That a writ of error had been brought on the first day of this term, the motion for a new trial made on the second, and bail in error fince juftified; that the Defendant therefore had no right to have a motion for a new trial difcuffed, having expreffed his intention of withdrawing the fubject from the confideration of the Court; that he recollected a fimilar cafe in K. B. where the Court were of that opinion. Sed per Eyre Ch. I. Perhaps the writ of error was brought under an apprehenfion of execution (6) In Maddock, q. t. v. Sir B. Hammett 1797. SD L. HAM- Sir W. YZA. * [ 149 ] 1797. Sir B. HAM METT บ. Sir W. YEA. to be determined by the jury. But there is an effential difference between the cafes where a charge is profeffedly made for commiffion, and where no fuch charge is profeffed to be made, but more than five per cent. is actually taken. Nothing can take the latter cafe out of the ftatute; but in the former it will at once appear to the Court and jury, whether the fum taken is a fair charge for what it purports to be. If this had been a tranfaction of remittance, the banker would have had fome certain rule to go by in his charge, as in the Sudbury cafe (a), where 5s. per cent. were taken; but here one bill for 500l. is drawn at feven days, and another for the fame fum at thirty days. Though the party remitting has a right to ftipulate for a compenfation for the trouble and expence of remittance, yet he is not allowed to charge it in the fhape of intereft. This was the decided opinion of Lord Kenyon in the cafe of Matthews qui tam v. Griffiths and others, Peake's Ni. Pri. 200. (b) Shepherd and Runnington Serjts. contrà. It is admitted that more than 5l. per cent. may be taken, if taken for commiffion eo nomine. But the name cannot make the tranfaction more or lefs ufurious, for if it be fubftantially ufurious no device will protect the party; and, whether the money be received under one name or another, the reasonablenefs of the charge muft be decided by a jury. The objects of the ftatute were two: 1ft, To make void all bonds, contracts, and affurances for payment of money lent upon ufury. 2dly, To punish the party who takes fuch ufurious intereft. Before the first of thefe provifions therefore can attach, there muft 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 queftion 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 fpecifically ftipulated for on that account. The contract for dif count was complete when the borrower faid, I want bills difcounted, and the lender anfwered, I will difcount them. The remittance was as diftinct a tranfaction as if it had taken place on (a) Winch q. t. v. Fenn. Sittings after H.T.1786. B.R. before Buller J. cit. 2T.R. 52. (b) The decifion of that cafe was fully recognised by His Lordship in Maddock q.t. v. Sir B. Haramet! and others, 7 T.R. 185. another another day. If therefore no part of the original contract was ufurious, nothing fubfequent to that will vitiate the bond. 4 Burr. 2253. So in Floyer v. Edwards, Cowp. 115. Lord Mansfield says, "Ufury is an agreement originally to pay the principal, with interest above the rate of 5 per cent." and cites Hawk. P. C. c.82..19. That a party is entitled in fome cafes to take, not only 5 per cent. for legal intereft, but also a reasonable fum for remitting, and other neceffary incidental expences, is clearly settled. Auriol v. Thomas, 2 T. R. 52. Bodily v. Bellamy, 2 Burr. 1096. The true diftinction is, whether the conditions of the contract are imposed on the borrower or not; in the present tranfaction 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 intereft was fairly applicable to the expences of remittance. As to the cafe of Matthews qui tam v. Griffiths, it may be diftinguished from the prefent, for Lord Kenyon himself obferved that a fecond discount had there actually been paid on the notes in question. EYRE Ch. J. I will begin with ftating my affent to the propofition, that where a party on a contract for a loan intentionally takes more than 51. 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 51. per cent. is intentionally taken upon any contract for fuch forbearance, is a mere queftion of fact for the confideration of the jury, and muft always be collected from the whole of the tranfaction as it paffes between the parties. And Iam of opinion that it never can be determined that any particular fact conftitutes or amounts to ufury, till all the circumftances 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 exprefsly provides againft any fubtle devices or evafions by which its penalties may be eluded (and had it not been fo provided, I should have thought it my duty to use all the influence of my fituation to prevent fuch devices and evafions from having any effect); fo on the other hand common justice requires that the whole of the transaction should be before the jury, and should be taken fairly, with a just application of all the circumftances to every conclufion 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 tranfaction of loan and not of remittance; I think there was room to confider it as a mixed cafe 1797. Sir B. HAM- ข. Sir W. YEA. 1797. METT บ. 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 cafe in matter of fact? Haviland applies to have his bills discounted; to which the banker agrees, and calculates the Sir W. YEA. intereft upon the time the bills have to run, as is ufual. He asks how Haviland would have the money? Haviland defires 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 fwept them into his hat, and then faid, "But I want to fend money to London; will you take part of my money back and give me bills?" and the banker had accordingly done fo and given thefe bills, I cannot fee that there would have been any colour for calling it an ufurious tranfaction. Are we then to administer juftice on fuch frivolous diftinctions as the difference between the cafe I have put, and the cafe which actually happened? Can the ufury depend on the circumftance of the money being told down or not? It was proved by the witness that the banker afked, "How will you have the money?" Which fhort queftion includes whether he would have it in cafh or in cafh notes, or in account, or whe ther he had any defire to have part of it remitted for him to London? The anfwer completes the tranfaction. Few words are neceffary among men of bufinefs. Bills on London are given to a certain amount, and the reft is taken in cafh, or that which is equivalent to cash. When we are conftruing any particular circumftances given in evidence in order to found a conclufion of fact in any cafe, and efpecially in a cafe of ufury arifing upon a tranfaction between men of bufinefs, we ought to deal with those circumftances according to the common fenfe of mankind. Surely there is a great difference between tranfactions with bankers, and the ordinary tranfactions between man and man. What paffed between the parties, one of them being a banker, was equivalent to an agreement by the banker to discount Haviland's bills in cafh; and equivalent to the actual discount of them; and alfo equivalent to an agreement to remit a part of that cash to London for Haviland; for which laft purpose bills on London were given. Is there any thing unreasonable in the nature of this tranfaction? It has now become the courfe for bankers in the country to have credit on fome houfe in London which is maintained at no fmall expence, and by means of which remittances are made with great facility. But let us fimplify this idea. A. fays fays to B. take my fpecie, you can find better means of conveying it to London than I can, and pay it to the perfon in London whom I fhall appoint. In fuch a cafe, A. could not have fent his fpecie by the poft, but muft have hired a waggon for that purpose. Now if B. has established a mode of conveyance which renders the remittance more eafy to him, what is that to A. whofe money is remitted? Is not the banker entitled to a recompence for the accommodation he affords to his cuftomer; and if in fuch cafes the remittance is ufually made by bills of thirty days, is not that a fair measure of a recompence, fuppofing there is no device in the tranfaction, and that the remittance is not intended to be nfed 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 impofed this remittance on the borrower as a term of the discount, it would have been ufury. I might have added, that if all confideration of loan were out of the cafe, 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 cafe faid to have been determined at Nifi Prius has been very properly preffed upon us in the argument. Certainly the opinions of the Judge who is faid to have decided that cafe are at all times entitled to the higheft 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 apprehenfion we are here debating no queftion of law; we are examining the evidence of a mere matter of fact, on an inquiry into a tranfaction between a banker and his cuftomer. According to the letter of that cafe, as it has been reported to us, it was faid, that unlefs the payment is made in ready money (a), the tranfaction is ufurious; this would at once put an end to the banker's bufinefs. Neither in this nor in any other cafe of the fame kind, does it neceffarily happen that a fingle farthing in ready money paffes between the parties. Here part of the money was carried to Haviland's account, the whole might 1797. Sir B. HAM V. Sir W. YEA. i |