Ex parte
Skip.

goods, the lender not having so much cash in hand; the goods were taken up of a friend of the lender, and as a young nobleman could not know what to do with linens, silks, drugs, china, &c. a third person in the confederacy was recommended by buy them of him, perhaps thirty per cent. under the estimate at which they were delivered to him in lieu of cash. In one instance, it appeared that a young baronet had received no more than 9001. in cash, part of it being the produce of goods, estimated at 10001. and sold for his account at 700l.; for a landed security, to repay 20001. the premium and the loss upon the goods absorbing the remainder.

It is necessary, however, in this place, to inform those numerous cormorants who prey upon the necessities of mankind, that under a statute of bankruptcy a strict scrutiny will be made into the nature of the contracts, by which they claim as creditors, and that our present discerning and upright chancellor will not suffer their debts to be proved, if it appears that they are founded on usurious contracts.

A debt made void by statute ought not to be permitted to be proved, as a debt on an Vez. 499, usurious contract; and though the rule of the Court of Chancery is, upon a bill to be relieved against demands of uşurious interest, not to make void the whole debt, but to make the party pay what is really due; in a commission of bankruptcy, the assignees have a right to insist that the whole debt is void, as an usurious contract. And unless the assignees and other creditors submit to pay what is really due, the Lord Chancellor has not power to order it, and applications of this nature have been frequently refused. Accordingly, where A. gave a note of hand without consideration, payable to B. 1 Atk. 125, two months from the date, for 1001. B. indorses it over to Thompson, allowing a discount of a guinea and a half, being at the rate of 9 per cent. When the note became due, Thompson took a joint bond from the drawer and indorser for the 1001. though he paid only 981. 8s. 6d. The commissioners had admitted him as a creditor under a commission against the drawer, but finding out this fact afterwards, they ordered his dividend to be stopped. The Lord Chancellor, upon his petition would not direct him to be admitted to his dividend, but ordered an issue at law, to try whether the bond was

Ex parte
Thomson,

usurious.

But whatever might be the event of the issue directed by the court in this case, it should seem that if the contract was originally usurious, it is void, and cannot be proved even in the hands of an innocent indorsee; for upon an action brought on such a note, the defendant's plea of usury would be a complete bar. Cook's Bankrupt Laws, 2d. edit. London, 1788. See Dougl. 746.

But if a bill of exchange be good in its inception, and the usury take place upon a subsequent indorsement, the bill is good in the hands of a bona fide indorsee, though as between the parties to the usury the security was void. 1 East 92. and Chitty on Bills. 4th edit. 100. and cases therein cited.

Having now seen how the law stands in our own country, let us take a concise view of the regulations established on the Continent, to prevent the pernicious consequences to society of this selfish vice.

Usury is strictly prohibited in all Christian countries; and in many, banks have been set up, with funds to let out on pawns, for those whose necessities required such assistance, and to prevent by this means the prevailing iniquitous practice of usurers; of this number was our ill-conducted charitable Corporation here, and that still subsisting at Amsterdam, under the title of the Lombard, as being first instituted by those people, or Bank of Loans, which is a spacious building erected for a warehouse, in 1550, by the overseers of the poor, who assigned it in 1614 to the city, for the purposes aforementioned; where every one who is in want of cash may have it, on any pawns he shall bring there, as none are refused, though never so vile or valuable, provided they are saleable; so that every thing will be received, from jewels of a great price, to the least

particular of clothes or furniture; and the interest on the loan is paid in the following manner, viz.

For what is under 100 guilders, a penning per guilder is paid weekly, which is after the rate of 16 1-4th per cent. per annum.

From 100 to 500, is paid an interest of 6 per cent. per annum.

From 500 to 3000, there is paid 5 per cent. per annum.

And from 3000 to 10,000, or above, only 4 per cent. per annum is paid. Whoever have brought in their effects may retrieve them whenever they please, on returning the sum they have received, with the interest to the day of their taking them back; though with this exception, that as the interest is to be paid monthly, that of the month entered on must be satisfied; but to avoid this, the debtor must take care to free his goods exactly at the month's end.

If those, who have brought in their pawns, neglect to free them at the expiration of a year and six weeks, or that they do not prolong the time of payment, by satisfying the interest of the past year, the Lombard sells them by auction, and reserves what they produce more than the sum lent, charges and interest deducted, at the disposition of the proprietors; but if they do not reclaim the said surplus in a year after, it is given to the poor houses, and cannot then by any means be regained.

For the conveniency of those who are desirous of being unknown, and therefore do not care to carry their effects themselves to the Lombard, there are several small offices established in the city, with this inscription before the door-Hier goatmen in de Bank van Leeninge; that is, Here they go to the Lombard, or Bank. The people established in these offices take an oath to the Lombard, and are obliged to carry in there daily the effects that are brought to them, under penalty of cassation and being fined; the Lombard pays them eight stivers per every 100 guilders that it lends on the effects that they bring in: these people take care to carry the goods to the Lombard, where they pawn them in their own names, and deliver the money to him who brought them to them, with a note from the Lombard, that contains the name of the commissary, the quality of the thing upon which the money is taken, and the sum advanced on it.

If this note happens to be lost, and the proprietor would reclaim his goods, and restore the sum borrowed, he is not believed on his bare word, nor will the effects be delivered to him, without his giving good security to return them, if it is found that the note has been made over to another, who comes afterwards to demand them; but if, on the note's being lost, any one finds it, or even if it is stole from the owner, and he that has found it, or stole it, carries it, and demands the effects, and pays the loan before the proprietor perceives that he has lost it, the Lombard always delivers them to the bearer, without inquiry whether he is the real proprietor or not; and the true one has forfeited the right he had to reclaim his effects from the bank.

The public sales made in this house, are made during three days in every week. All sorts of persons are admitted to the auction; and those which are known, have three months' credit, particularly for diamonds and other jewels.

If it happens, as in effect it does very often, that the goods, merchandise, or jewels, brought to the bank, have been stolen, and their owners have discovered it, they may reclaim them, on proving the theft, giving security for their value, and returning the sum that has been lent on them.

All the Lombard's officers are paid by the city, of which some are established to controul and value clothes or furniture, others upon merchandize, and others upon jewels and plate; for the reception of which there are three warehouses, and the appraisers are answerable for the price at which they have valued the things that are brought in; in case they are sold for less than the valuation, which they have put on them.

The sums that the Lombard have occasion for are drawn from the money bank, and

all the profit it produces is destined for the support of all, or the greatest part of the hospitals, by which method the bank's cash, which would otherwise lie useless, is of great benefit to the poor, without the public security being in any respect concerned.

Of these Lombards there were some established formerly in many parts of the Low Countries, and one particularly at Bruges in Flanders, where money was lent on pawns without any interest at all; and in several cities of Italy, there were, and still are, several Banks of Charity, called Montes Pietatis, where cash is lent on pledges, for which only an interest of three or four per cent. per annum is required, to pay the salaries, &c. of the assistants, and whose funds have been settled by the charitable donations of many, who have contributed largely to the poor's relief in this shape; and these different ways and means have been thought of, and carried into execution, purely to prevent that execrable sin of usury, and common pawn-broking; and to prevent the calamities the indigent suffered from it.

OF CONTRACTS, BONDS, AND PROMISSORY NOTES.

A CONTRACT, in Latin contractus, is a covenant, or agreement between two or more persons, with a lawful consideration or causes, as when a man makes the sale of any thing to another, for a sum of money, or covenants, in consideration of fifty pounds, to make him a lease of a farm, &c.

These are good contracts, because there is a quid pro quo, or one thing for another; but, if a person promises me twenty shillings, and that he will be debtor to me for it, and after, when I demand the completion of his promise, he refuses me, I cannot have any action for its recovery, because this promise was no contract, but a bare promise, or nudum pactum, though if any thing had been given for the twenty shillings, even to 1 Lil. Abr. the value of a penny, then it had been a good contract. Every contract doth imply in itself, an assumpsit in law for its performance; for a contract would be to no purpose, if there were not means to enforce the performance thereof.

.308.

Where an action is brought upon a contract, and the plaintiff mistakes the sum agreed on, he will fail in his action: but, if he brings this action on the promise in law, Aleyn 92. which arises from the debt, then, although he mistakes the sum, he shall recover.

Dver 30. 293.

There is a diversity, where a day of payment is limited on a contract, and where not; for where it is limited, the contract is good presently, and an action lies upon it, without payment, but in the other, not; if a man buys twenty yards of cloth, &c., the contract is void if he do not pay the money presently; but if a day of payment be given, there the seller may have an action for the money, and the buyer trover for the cloth.

If a man contract to buy a horse, or any thing else, but no money is paid or earnest given, nor a day set for payment thereof, nor the purchase is delivered; in these cases 309. 128. no action will lie for the money, or the thing sold, but it may be sold to another.

Plowd.

All contracts are to be certain, perfect, and complete: for an agreement to give so much for a thing, as it shall be reasonably worth, is void for uncertainty; so a promise Dyer 91. to pay money in a short time, &c. or to give so much if he likes the thing, when he 1 Bul. 92. sees it.

But if I contract with another to give him ten pounds for such a thing, if I like it on seeing it; this bargain is said to be perfect at my pleasure, though I may not take the Noy 104. thing before I have paid the money; if I do, the seller may have trespass against me; Perk, sect, and if he sell it to another, I may bring action of the case against him.

112, 114,

Shep. Abr.

294.

If a person agree with another to give so much for his horse as A. B. shall judge him to be worth; when he hath judged it, the contract is complete, and an action will lie

on it, and the buyer shall have a reasonable time to demand the judgment of A. B. but, if he dies before his judgment is given, the contract is determined.

5 Rep. 83.

In contracts, the time is to be regarded, in and from which the contract is made: the words shall be taken in the common usual sense, as they are taken in that place where spoken; and the law doth not so much look upon the form of words, as on the substance 1 Bul. 175. and minds of the parties therein.

A contract for goods may be made as well by word of mouth, as by deed in writing; and where it is in writing only, not sealed and delivered, it is the same as by word; but if the contract be by writing, sealed and delivered, and so turned into a deed, then it is of another nature, and in this case generally the action on the verbal contract is gone, 130, 09. and some other action lies for breach thereof.

Plowd.

Dyer 90.

Contracts, not to be performed in a year, are to be in writing signed by the party, &C. 29 Car. 2. or no action may be brought on them; but, if no day is set, or the time is uncertain, c. 3. they may be good without it.

And by the same statute, no contract for the sale of goods, for ten pounds or upwards, shall be good, unless the buyer receive part of the goods sold, or gives something in earnest to bind the contract, or some note thereof be made in writing, signed by the person charged with the contract, &c.

249.

If two persons come to a draper, and one says, Let this man have so much cloth, and Mod. Cas. I will see you paid, there the sale is to the undertaker only, though the delivery is to another by his appointment: but, if a contract be made with A. B. and the vender scruples to let the goods go without money, and C. D. comes to him, and desires him to let A. B. have the goods, and undertakes that he shall pay him for them, that will be a promise within the stat. 29 Car. 2. and ought to be in writing.

All promises and contracts are to receive a favourable interpretation: and such construction is to be made, where any obscurity appears, as will best answer the intent of the parties; otherwise a person, by obscure wording of his contract, might find means to evade and elude the force of it. Hence it is a general rule, that all promises shall be taken, most strong against the promiser, and are not to be rejected, if they can by any means be reduced to a certainty. 1. New Abridg. of Cases in Equity, 168.-But promises are not valid, if the consideration be against law: and where there are frauds in contracts, an action on the case will lie. Clarke's Epit. of Com. Law.

67.

CONTRACTS and AGREEMENTS are in many cases of the same signification, as this latter in its Latin derivation, agrementum, or aggregatio mentium, seems to express, signifying a joining together of two or more minds, in any thing done, or to be done; and BONDS are deeds, or obligatory instruments in writing, whereby one doth bind himself Bro. Obl. to another, to pay a sum of money, or do some other act; as to make a release, surrender an estate for quiet enjoyment, to stand to an award, save harmless, perform a will, &c. It contains an obligation with a penalty; and a condition, which expressly mentions what money is to be paid, or other thing to be performed, and the limited time for the performance thereof, for which the obligation is peremptorily binding; it may be made on parchment or paper, duly stamped, though it is usually on the latter, and be either in the first, or third person; and the condition may be either in the same deed, or in another, and sometimes it is included within, and sometimes indorsed upon the obligation, though it is commonly at the foot of it.

A memorandum on the back of a bond may restrain the same, by way of exception. Moore 673. A bond may be by any words, in a writing sealed and delivered, wherein, a man doth 2 Shop. declare himself to have another man's money, or to be indebted to him; but the best form of making it, is that which is most used.

Abr. 477.

If a bond be thus, "Know all men by these presents, that I, A. B. am bound to C. D. 3 Leon, in the sum of, &c. for payment of which I give full power to him to levy the same upon

c. 299.

Dyer 13.

Bro. Obl.

72.

11 Rep. 53.

5 Rep. 119.

10 Rep. 119.

1 Leon.

1 Lutw. 667.

3 Salk. 75.

10 Rep. 120.

2 Mod. 285.

1 Mod.

profits of such lands yearly, till it be paid:" In this case, the obligee may sue upon the obligation, or levy the money according to the said clause.

Where a bond is made obligo me, &c. leaving out the words, hæredes, executores, et administratores, this is good, and the exccutors and administrators shall be bound thereby. But an heir is not bound unless expressly mentioned to be so in the bond, or has legal assets by descent from the obligor: see 2 Saund. 7. n. 4. and cases there cited. An obligation made to one, to the use of A. B. will be good for him in equity.. The condition of a bond must be to do a thing lawful; wherefore bonds, not to use trades, till or sow grounds, &c. are unlawful, as they are against the public good, and the liberty of a freeman, and therefore void: and a condition of a bond to do any act, malum in se, as to kill a person, &c. is void: so also bonds made by duress, by infants, feme coverts, &c. And if a woman, through threats, or flattery, be prevailed upon to enter into a bond, she may be relieved in Chancery.

If an infant, that is, a person under twenty-one years of age, seal a bond and be sued thereon, he is not to plead non est factum, but must avoid the bond by special pleading; for this bond is only voidable, and not in itself void.

But if a bond be made by a feme covert, she may plead her coverture, and conclude non est factum, &c. her bond being void.

If a bond depends upon some other deed, and the deed becomes void, the bond is also void. A bond made with condition not to give evidence against a felon, &c. is void; but the defendant must plead the special matter.

Condition of a bond to indemnify any person from any legal prosecution, is against law, and void.

And if a sheriff takes a bond as a reward for doing of a thing, it is void.

Conditions of bonds are to be not only lawful, but possible; and when the matter or thing to be done, or not to be done by a condition, is unlawful or impossible, or the condition itself repugnant, insensible, or uncertain, the condition is void, and in some cases the obligation also.

But sometimes the obligation may be single to pay the money, where the condition is impossible, repugnant, &c.

If a thing be possible at the time of entering into a bond, and afterwards becomes imRep. 265. possible by the act of God, the act of the law, or of the obligee, it is become void; as if a man be bound to appear next term, and dies before, the obligation is saved. A condition of a bond was, that A. B. should pay such a sum on the 25th of December, or appear in Hilary Term after in the court of B. R. he died after the 25th of December, and before Hilary Term, and had paid nothing: in this case, the condition was not broken for non-payment, and the other part is become impossible by the act of God.

Dyer 51.

1 Brownl. 33.

Jones 140.

! Leon.

101.

And when a condition is doubtful, it is always taken most favourably for the obligor, and against the obligee, but so as a reasonable construction be made as near as can be, according to the intention of the parties.

If no time is limited in a bond for payment of the money, it is due presently, and pay

able on demand.

But the judges have sometimes appointed a convenient time for payment, having regard to the distance of place, and the time wherein the thing may be performed; and if a condition be made impossible, in respect to time, as to make payment of money on the 30th of February, &c. it shall be paid presently; and here the obligation stands single.

Though if a man be bound in a bond with condition to deliver so much corn upon the 29th day of February next following, and that month had then but twenty-eight days, it has been held that the obligor is not obliged to perform the condition till there comes a leap-year.