The Earl of Chesterfield and Others, Executors of John Spencer Esq. v Sir Abraham Janssen, Baronet
| Jurisdiction | England & Wales |
| Judgment Date | 18 June 1750 |
| Date | 18 June 1750 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 191
LORD CHANCELLOR, ASSISTED BY THE TWO CHIEF JUSTICES, THE MASTER OF THE ROLLS, AND MR. JUSTICE BURNET.
S. C. 1 Wh. & T. L. C. (7th ed.) 289. See Earl of Aylesford v. Morris, 1873, L. R. 8 Ch. 498; Benyon v. Cox, 1875, L. R. 10 Ch. 392 (n.); Nevill v. Snelling, 1880 15 Ch. D. 698.
[301] Case 167.-The Earl of chesterfield and Others, Executors of john spencer Esq., Plaintiffs; Sir abraham janssen, Baronet, Defendant. June the 18th 1750. [S. C. 1 Wh. & T. L. C. (7th ed.) 289. See Earl of Aylesford v. Morris, 1873 L R 8 Ch. 498; Benyon v. Cox, 1875, L. R. 10 Ch. 392 (n.); Nevill v. Snelling, 1880 15 Ch. D. 698.] Lord Chancellor, assisted by the two Chief Justices, the Master of the Rolls, and Mr. Justice Burnet. 5 Bac. Ab. 411, S. C. ; 2 Vez. 125, S. C. ; 1 Wils. 286, S. C. The 17th of May 1738, defendant paid 5000 to Spencer, and the same day took a bond from him in the penalty of 20,000 conditioned for the payment, of 10,000 to the defendant, at or within some shoit time after the Duchess of Marlborough's death in case Spencer should survive her, but not otherwise. The Duchess died Oct. 18, 1744, and in the month of December following, on the defendant's delivering to Mr. Spencer the bond to be cancelled, he executed a new one in the penalty of 20,000 conditioned for payment to the defendant of 10.000 with lawful interest, on the 19th of April next, and at the same time executed a warrant of attorney to impower judgment to be recorded against him in B. R. for the 20,000, which was done accordingly. 192 CHESTERFIELD (EARL OF) V. JANSSEN 1 ATK. 302. In Dec. 1745, Spencer paid defendant 1000 in part, and on the 21st of March 1000 more. On the 19th of June 1746, Spencer died; but before Ms death made his will, and after payment of debts, &c., gave the residue of his personal estate to his son, and appointed plaintiffs his guardians and executors in trust, during his minority. Bill brought to be relieved against defendant's demand as an unconscionable bargain, and usurious contract. The court relieved only against the penalty, and judgment, by directing the defendant to deliver up the bond to be cancelled, and to acknowledge satisfaction on the judgment, upon being paid by plaintiffs what should be due at law, but would not give him costs, as there was probabilis causa litigandi, and defendant's case far from being a favourable one. Some time in the year 1738, the defendant was applied to by Mr. Backwell on behalf of Mr. Spencer, to advance and lend Mr. Spencer 5000, in consideration of which he would give the defendant a security to pay him 10,000 at the death of the late duchess of Marlborough, in case Mr. Spencer should survive her ; the defendant desired he might consider of it, which he did accordingly, and being again applied to, to lend the 5000 on the terms aforesaid, the defendant at last consented thereto, and on the 17th of May 1738, carried the 5000 in bank notes to Mr. Spencer, and paid the same to him, who thereupon executed to the defendant a bond dated the same day, in the penalty of 20,000 conditioned for the payment of 10,000 to the defendant, at or within some short time after the Duchess's death, in case Mr. Spencer should survive her, but not otherwise. The Duchess of Marlborough died the 18th of October 1744, and in the month of December following, on the defendant's delivering to Mr. Spencer the bond above mentioned to be cancelled, he executed a new bond, whereby he became bound to the defendant in the penaltyof 20,000 conditioned for payment to thedefendant of 10,000, with lawful interest on the 19th of April then next, and at the same time executed a warrant of attorney to impower a judgment to be recorded against him in the King's Bench, at the defendant's suit, for the said 20,000 on the said bond ; the defendant, by virtue of the said warrant of attorney, caused a judgment to be made out on the said bond against Mr. Spencer, at the defendant's suit, for the said 20,000 to be recorded in the King's Bench of Hilary term next ensuing the date of the said bond. In the month of December 1745, the defendant, by the invitation of Mr. Spencer, being with him in his house at Windsor, [302] he, on the 14th of that month, gave the defendant a bill for 1000 on Hoare and Company, in part of the defendant's debt, and on the 21st of March following sent the defendant 1000 more by his steward. On the 19th of June 174(3 Mr. Spencer died ; but before his death made his will, and, after payment of his debts and legacies, gave all the residue of his personal estate to be at his son's disposal, the present Mr. Spencer, provided he left no younger child, and appointed the plaintiffs to be guardians of his son, and also executors in trust for him during his minority. The executors of Mr. Spencer, finding his specialty debts very considerable, and that such as were upon simple contracts only, which likewise amounted to a very large sum, would receive but little satisfaction through the deficiency of testator's assets, after payment of such sums as were really and bona fide due on specialties, brought a bill to be relieved against the defendant's demand, as being an unconscionable one, charging that the condition stipulated by his security was absolute, and independent of any other contingency than that of a grandson of 30 years of age surviving a grandmother of 80 ; and as the period or point of time limited for the payment (which was in one month after the death of the Dutchess) could not, by reason of her great age and infirmities, be removed to any great distance, but was every day approaching, and in fact happened soon after; so the requiring such a large sum as 10,000 for the forbearance of 5000 for so short a time, being at the proportion of 200 for every 100, was a most unreasonable and usurious contract, and such as will never meet with the approbation or countenance of a court of equity, especially where the demand is made upon the assets of an insolvent person, to the prejudice and defeating of his other just and honest creditors, and of an infant heir and residuary legatee, and that the executing a new bond to the defendant, after the death of the Dxitchess of Marlborough, is only a continuance of the former transactions, and partook of the original fraud, and I ATK. 303. CHESTERFIELD (EARL OF) V. JANSSEN 193 that being an unrighteous and usurious bargain in the beginning, nothing which was done afterwards could help it, but on the contrary, defendant, in acquiring such new security and judgment, and thereby seeking to conceal the true transaction, did, as far as in him lay, add to the first fraud, and ought to be restrained from taking out execution on his judgment, till the court have first inquired into and determined upon the fraud, and therefore 'tis prayed, that the defendant may be adjudged by the court to be a creditor of Mr. Spencer only, for such sums as he shall appear to have bona fide advanced, with interest from the time of advancing the same, after deducting what he hath received, and [303] that he may be decreed to come in, and receive a satisfaction for the residue of such principal sums only and interest, pari passu with Mr. Spencer's other creditors, according to the nature of his demand, and for an injunction to stay his proceedings at law till the hearing of the cause. July the 21st, 1747, the injunction was continued upon the merits till the hearing. Mr. Noel for the plaintiffs, The question is, Whether or no the executors are intitled to be relieved, on payment to the defendant of the principal really advanced, and legal interest 1 Contracts of this nature can be founded only on two principles, extravagance and distress on the one part, and the exorbitant desire of lucre on the other, and taking advantage of the necessity of the person borrowing. Mr. Spencer, by a riotous course of life, run behind-hand ; and it is proved he owed above 20,000. At this time his chief dependance was on the Dutchess dowager of Marlborough, who was then 78 years of age, beyond the common date of man's life, and Mr. Spencer himself only 30. It can bear no doubt but these were the only motives and principles of Mr. Spencer's application, nor any doubt but the view of securing to himself so large a gain on such a probable contingency, were the motives of the defendant; for, to use the words of a great author, it was an abundant shower of cent, per cent. The defendant says it was not of his seeking, but on application on the part of Mr. Spencer, and that he was a stranger to his person and his affairs ; but, notwithstanding his pretences, he cannot be said to be ignorant from the moment of the proposal to him; for his offering such an exorbitant advantage, spoke stronger than a thousand circumstances, that Mr. Spencer was necessitous, a transaction too unequal and enormous to bear the light, and therefore the defendant was fixed upon to carry it on with secrecy, for fear, if such a transaction should be publickly known, and come to the ears of the Dutchess of Marlborough, it might be prejudicial to his future hopes. Mr. Spencer was of an age to dispose thereof, says the defendant, and might act as he thought proper, as he was sui juris; but notwithstanding this, as the Dutchess of Marlborough was alive, and his father and mother dead, she stood in loco parentis, and consequently he had a parental dependance on her, and therefore, for fear of her knowing it, he durst not seek a remedy against this iniquitous bargain, because of the risque he run of divulging the secret. The defendant must know Mr. Spencer to be in distress, for a man of affluence and estate could have got money on the common terms, and therefore the proposal itself spoke his situation. This is become a case of publick concern, as it tends to the ruin of many other families...
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