Austerbury v Morgan
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1809 |
| Date | 25 November 1809 |
| Court | Court of Common Pleas |
English Reports Citation: 127 E.R. 1051
Common Pleas Division
presume, was, that as the party could not previously be sued on the instrument, there was no forbearance to sue, and therefore no consideration for the promise. And the forbearance being the only consideration alledged in the declaration, though another good consideration might exist, proof of it would not be admissible.] 7 T. R. 348, Mitchinson v. Ileum ; the wife was living ; and an express promise of the husband to pay her debt was there averred, and after verdict, must be taken as having been proved : that surely was a conscientious consideration ; but the Court held that the action could not be maintained, Arguments in reply. Usury is not now held altogether criminal by the law, but only the excess of it ; and things not mala in se are not to be carried beyond the- very letter of prohibitory statutes. In Lloyd v. Lee it does not appear that the wife ever received any money on the note for her own benefit, or was at all bound in conseience to pay it ; and the case only proves that forbearance is no consideration for a promise made under the influence of tenor of art action which would not lie. Mitchinson v. Hews is a decision merely on the form of action, that the husband cannot be sued alone. for a debt contracted by the wife before marriage. So, in the case of a father promising to pay the debts of his son ; in numerous oases it is not consistent either with honour or morality that he should do it. This case is not distinguishable from that of a certificated bankrupt, which rests only on the ground of conscience. Nor is the offence of usury in fact complete till usurious interest has been actually paid ; here the payments were made on account generally. It is admitted that where a specific contract on certain terms has been made, an implied contract on other terms cannot be raised ; and it may also be safely admitted that the moral obligation to perform a promise [1941 merely because it has been given, is not sufficient to maintain an action otherwise every nudum pactum would be good. But it does not thence follow, that the naked fact of a loan having taken place, one man having received the money of another, is not a sufficient consideration for an express separate and independent promise to repay it. Courts of equity could not pursue their present practice, if the repayment of money usuriously borrowed was inconsistent either with law, or morality : they could...
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...necessary upon a warrant of attorney with a penal sum conditioned for payment of a less sum by instalments ; and in Austerbwry v. Morgan (2 Taunt. 195) the decision was the same, although there was a bond with a penalty in addition to the warrant of attorney. Wilde. The stipulation that no ......
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Baker, Petitioner; and Pettigrue, Respondent; and of The Act of 5 & 6 W. 4, C. 55
...roll may suggest as many breaches,” &c.—it has been held, that judgments on warrant of attorney are not included: Austerbury v. Morgan, 2 Taunt. 195; Cox v. Rodbard3 Taunt. 74; Kinnersley v. Mussen, 5 Taunt, 264. Upon the corresponding Irish act, 9 W. 3, c. 10, s. 8, there has been some div......
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