Earl of Chesterfield and Others Executors of John Spencer v Sir Abraham Janssen
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1750 |
| Date | 01 January 1750 |
| Court | High Court of Chancery |
English Reports Citation: 28 E.R. 82
HIGH COURT OF CHANCERY
S. C. 1 W. & T. L. C. (7th ed.) 289. See Earl of Aylesford v. Morris, 1873, L. R. 8 Ch. 489; Benyon v. Cook. 1875, L. R. 10 Ch. 392 (n.); Nevill v. Snelling, 1880, 15 Ch. D. 698.
[125] Earl of chesterfield and Others Executors of john spencer v. Sir abraham janssen, Feb. 4,1750-1. [S. C. 1W. & T. L. C. (7th ed.) 289. See Earl of Aylesford v. Morris, 1873, L. E. 8 Ch. 489 ; Benyon v. Cook. 1875, L. R. 10 Ch. 392 (n.) ; Nevttl v. Snelling, 1880, 15 Ch. D. 698.] Lord Hardwicke, Lord Chancellor ; Sir William Lee, Chief Justice ; Sir John Strange, Master of the Rolls; Sir John Willes, Chief Justice ; Burnet, Justice.-Post obit security. Confirmation, &c. A. aged thirty, borrows 5000 on bond to pay 10,000 if he survives B. aged seventy-eight. A. survives a year and eight months, having on death of B. confirmed the bargain by a new bond, &c., freely ; and paying part. (For the modern doctrine in such instances and some of the latest cases, see the Supplement, p. 297, &c. &e., particularly Bowes v. Heaps, 3 Ves. & B. 117, &c. Gowland v. De Faria, 17 Ves. 20. Peacxk v. Evans, 16 Ves. 512.; and Evans v. Chesshire, Supplement, p. 300.) No relief given in this case, except as to the penalty. (See Hill v. Caillovel, 1 Ves. sen. 122.) (1 Atk. 301, S. C.; Cowp. 770; Brown, 1; 2 Vern. 14, 27, 121; 1 Wms. 310; 3 Wms. 290 ; 2 Atk. 133.)-[Supplement, 297.] The state of the case upon the pleadings and proofs, as far as was material for the consideration of the court, was shortly this : ^ John Spencer in 1738, being possessed of an income of 7000 per ann. and of a personal estate in plate, jewels, and furniture, to a great value, and having contracted a debt to the amount of 20,000 to several persons, mostly tradesmen, by whom he was pressed, and which he was desirous to pay off, proposed to borrow money, and particularly a sum of 5000 for that purpose. As he had a well-grounded expectation of a great increase of fortune on the death of his grand-mother the Duchess of Marlborough, if he survived her, he resolved to contract thereon. He was above thirty ; originally of a hale constitution, but impaired : and although afterward he lived more regular, yet he was addicted to several habits prejudicial to his health, which he could not leave off. She was seventy-eight; of a good constitution for her age ; and careful of her health. He sent to market a proposal, which he supposed, would easily meet with a purchaser ; as it was natural to expect in common course, that his grandmother should die first, though she was a good old life, and he but a bad young one. This proposal Was, that if any one would lend him 5000, he would oblige himself to pay 10,000 at or soon after the death of his grandmother, [126] if he survived her, but to be totally lost if she survived him : this was rejected by several knowing persons as not sufficiently advantageous ; as it was at first by the defendant; but afterward accepted by him : and a bond of 20,000 conditioned to pay 10,000 was given on those terms. She lived six years and three months; he survived her one year and eight months. Upon her death, it did not clearly appear who made the first application, whether the defendant for his money, or John Spencer for delay of payment, as he might not be able immediately to raise 10,000, although by the event he came to a great annual estate : but it was clear, that as soon as it was proposed by the defendant to John Spencer, he consented to do it: and, near two months after the contingency happened, he executed a bond in the penalty of 20,000 conditioned for the absolute payment of 10,000, at or before April following : and executed also a warrant of attorney for confessing judgment thereon ; which was afterward entered. John Spencer in 1745, at different times paid two several sums of 1000 each in part of this debt; and expressed himself several times satisfied with the conduct of the defendant; and that he should be paid his whole demand as soon as possible. The defendant after his death sued a scire facias against his executors for an execution ; 3VES. SEN. 127. CHESTERFIELD (EARL of) V. JANSSEN 83 who resorted to this court, praying an injunction, and for relief on payment of the 5000, with interest from the time of advancing it. - For plaintiffs. This case is of great importance to the estate of Mr. Spencer, but of greater to the public. The bill is to be relieved against an exorbitant, uncon-scientiotis demand, on the known terms in a court of equity, payment of principal really advanced and legal interest. There are three general points to be determined. First, how that contract would have stood, if properly brought in judgment in a court of law, and considered merely upon legal principles 1 Next, what the fate of it ought to be in a much stronger degree in a court of equity, when examined by principles of equity 1 Lastly, the subsequent transactions relied upon in the answer as a ratification of the original bargain 1 As to the first, it is not good in point of law, and therefore usurious. Oppression of this kind is almost of as ancient date as the use of money as a medium of trade ; and usury of a much more innocent nature was against the principles not only of the canon law, but of the common law of the land. Lord Coke says in 3 Inst. 151, that a man being found guiltv of usury after his death, all his goods were forfeited to the crown ; although it is now altered by several statutes, which confine it to such a quantum ; [127] allowing a certain moderate profit for the use of money : the difference therefore between usury and interest is in specie nothing, but in gradu. Though the severity of the common law is changed, the nature of things cannot be changed; it was the constitution of this country, and is so, that no gain should be exorbitant, on the loan of money : and therefore it is immaterial whether it falls within the statutes or no : but this case does; where such a contract is originally for the loan of money, and exceeding the legal allowance, it is rescinded by the act of parliament itself, though attended in some measure with a chance; being construed a subterfuge and evasion of the act; for if it may be extended to one life, it is difficult to tell where to stop. The legislature took a different method formerly; in the first acts describing minutely what species should be allowed ; confining it to a direct loan of money for illegal gain, or sale of goods or merchandise to persons in necessity ; the specifying whereof introduced endeavours to evade the particular kind of usury described : therefore the 21 /. 1, c. 17, is in general terms ; in consequence of which courts of law were vested with a kind of equitable jurisdiction, to consider the circumstances of the case stated as particularly as in bills in this court. The intent of the parties at the original communication is considered even by the courts of law as decisive ; and where that is for a loan of money or colourable sale of goods, whatever is thrown in of a different kind, it is usurious, otherwise not. Reynolds v. Clayton, Mo. 397, and Becker's case there cited. Next, wherever security is taken for a larger sum than is really advanced, it is usurious; unless the party may deliver himself therefrom by paying a less, or by doing some collateral act. The throwing something hazardous into the bargain, by which (as it is insisted) the lender might in some event have lost the whole, will not take it out of the statutes, and seems to have arisen from the statute II H. 7, c. 8, telling how far one might go to keep out of the acts. Mo. 397, and Button v. Downham, Cr. El. 642. Burton's case, 5 Co. 69. Roberts v. Tremain, Cr. J. 507. Cottrel v. Harrington, Brownl. 180. Fuller's case, 4 Leon. 208; Noy. 151; 2 And. 15, and Masons. Abdy, Carth. 67; 3 Sal. Comberb. 125. The only exception is the fcenus nauticum, or bottomry-bonds ; which for the sake of the public, and benefit of trade, are held not within the statutes of usury. The only view of the parties here was a loan of money, and security for double the sum advanced, subject to the contingency ; the borrower could not deliver himself from the payment; and the court will then lay every thing else out of the ease. In the calculation of lives it is difficult to say, where the true rule is : Halley and Newton have varied: but on the first sight one would think the lender had here greatly the advan-[128]-tage from the disproportion; so that on the face of it it would be deemed a subterfuge in a court of law. Suppose the bond existing ; and an action brought by the defendant, after the grandmother's death ; and the statute of usury pleaded; the parties may advance matters dehors; and it would be determined to be within the statute ; which is very extensive, and, though penal, to have a liberal construction. The terms, on which men communicate to borrow and lend, cannot alter the nature of the case. The quantum of the risk is not material; nor did the transaction proceed on the comparison of lives ; or health or constitution : but if it did, the defendant was satisfied of the contrary to what he now endeavours to support by proof, as to the constitution of Mr. Spencer. 84 CHESTERFIELD (EARL OF) t . JANSSEN 2 VES. SEN. 129. As to the second point: Courts of equity, not being tied up to rules, consider questions of this kind in a more extensive manner, and in general have avoided laying down any particular rule, as that would (like old statutes of usury) teach persons, how far they might safely go; but declare, that wherever there is a spark of oppression, the motive on one side necessity to jffpty for money; on the other, a covetous passion for undue lucre, they always relieijp not indeed setting it aside, but by giving what is really due. Their principles have been established gradually and with...
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