atkins case the earl of chesterfield and other executor of John spencer Esq  plaintiff sir Abraham jansen baronet defendant June the that SC wh t l c that  ed see earl of Aylesford v morris lr Ch Benyon v Cox lr Ch n Nevil v Snelling  Ch d Lord chancellor assist by the two chief justice the master of the roll  and Mr justice burnet Bac ab S c ves S c will S c the that of may defendant  pay pound to Spencer and the same day take a bind from he in the penalty of  pound condition for the payment of pound to the defendant at or within some  short time after the duchess of Marlborough death in case Spencer shall  survive her but not otherwise the duchess die Oct and in the month of December  follow on the defendant deliver to Mr Spencer the bind to be cancel he execute  a new one in the penalty of pound condition for payment to the defendant of  pound with lawful interest on the I that of April next and at the same time  execute a warrant of attorney to empower judgement to be record against he in  b r for the pound which be do accord atkins er p in Dec Spencer pay defendant  pound in part and on the saint of march pound more on the that of June Spencer  die but before his death make his will and after payment of debt c give the  residue of his personal estate to his son and appoint plaintiff his guardian  and executor in trust during his minority bill bring to be relieve against  defendant demand as a unconscionable bargain and usurious contract the court  relieve only against the penalty and judgement by direct the defendant to  deliver up the bind to be cancel and to acknowledge satisfaction on the  judgement upon be pay by plaintiff what shall be due at law but will not give  he cost as there be worthy of approval causan to dispute and defendant case  far from be a favourable one some time in the year the defendant be apply to  by Mr Backwell on behalf of Mr Spencer to advance and lend Mr Spencer pound in  consideration of which he will give the defendant a security to pay he pound  at the death of the late duchess of Marlborough in case Mr Spencer shall  survive her the defendant desire he may consider of it which he do accord and  be again apply to to lend the pound on the term aforesaid the defendant at  last consent thereto and on the that of may carry the pound in bank note be to  Mr Spencer and pay the same to he who thereupon execute to the defendant a  bind date the same day in the penalty of pound condition for the payment of  pound to the defendant at or within some short time after the duchess death in  case Mr Spencer shall survive her but not otherwise the duchess of Marlborough  die the that of October and in the month of December follow on the defendant  deliver to Mr Spencer the bind above mention to be cancel he execute a new  bind whereby he become bind to the defendant in the penalty of pound condition  for payment to the defendant of pound with lawful interest on the l that of  April then next and at the same time execute a warrant of attorney to empower  a judgement to be record against he in the king bench at the defendant suit  for the say pound on the say bind the defendant by virtue of the say warrant  of attorney cause a judgement to be make out on the say bind against Mr  Spencer at the defendant suit for the say pound to be record in the king bench  of Hilary term next ensue the date of the say bind in the month of December  the defendant by the invitation of Mr Spencer be with he in his house at  Windsor atkins he on the that of that month give the defendant a bill for  pound on hoar and company in part of the defendant debt and on the saint of  march follow send the defendant pound more by his steward on the that of June  Mr Spencer die but before his death make his will and after payment of his  debt and legacy give all the residue of his personal estate to be at his son  disposal that e present Mr Spencer provide he leave no young child and appoint  the plaintiff to be guardian of his son and also executor in trust for he  during his minority the executor of Mr Spencer find his special debt very  considerable and that such as be upon simple contract only which likewise  amount to a very large sum will receive but little satisfaction through the  deficiency of testator asset after payment of such sum as be real and good  fide due on specialty bring a bill to be relieve against the defendant demand  as be a unconscionable one charge that the condition stipulate by his security  be absolute and independent of any other contingency than that of a grandson  of year of age survive a grandmother of and as the period or point of time  limit for the payment which be in one month after the death of the duchess can  not by reason of her great age and infirmity be remove to any great distance  but be every day approach and in fact happen soon after so the require such a  large sum as pound for the forbearance of pound for so short a time be at the  proportion of pound for every pound be a most unreasonable and usurious  contract and such as will never meet with the approbation or countenance of a  court of equity especial where the demand be make upon the asset of a  insolvent person to the prejudice and defeat of his other just and honest  creditor and of a infant heir and residuary legatee and that the execute a new  bind to the defendant after the death of the duchess of Marlborough be only a  continuance of the former transaction and partake of the original fraud and  atkins er p that be a unrighteous and usurious bargain in the beginning  nothing which be do afterward can help it but on the contrary defendant in  acquire such new security and judgement and thereby seek to conceal the true  transaction do as far as in he lie add to the first fraud and ought to be  restrain from take out execution on his judgement till the court have first  inquire into and determine upon the fraud and therefore this pray that the  defendant may be adjudge by the court to be a creditor of Mr Spencer only for  such sum as he shall appear to have good fide advance with interest from the  time of advance the same after deduct what he have receive and atkins that he  may be decree to come in and receive a satisfaction for the residue of such  principal sum only and interest acquire step with Mr Spencer other creditor  accord to the nature of his demand and for a injunction to stay his proceed at  law till the hear of the cause July the saint the injunction be continue upon  the merit till the hear Mr Noel for the plaintiff the question be whether or  no the executor be entitle to be relieve on payment to the defendant of the  principal real advance and legal interest contract of this nature can be find  only on two principle extravagance and distress on the one part and the  exorbitant desire of lucre on the other and take advantage of the necessity of  the person borrow Mr Spencer by a riotous course of life run behindhand and it  be prove he owe above pound at this time his chief dependence be on the  duchess dowager of Marlborough who be then year of age beyond the common date  of man life and Mr Spencer himself only it can bear no doubt but these be the  only motive and principle of Mr Spencer application nor any doubt but the view  of secure to himself so large a gain on such a probable contingency be the  motive of the defendant for to use the word of a great author it be a abundant  shower of cent per cent the defendant say it be not of his seek but on  application on the part of Mr Spencer and that he be a stranger to his person  and his affair but notwithstanding his pretence he can be say to be ignorant  from the moment of the proposal to he for his offer such a exorbitant  advantage speak strong than a thousand circumstance that Mr Spencer be  necessitous a transaction too unequal and enormous to bear the light and  therefore the defendant be fix upon to carry it on with secrecy for fear if  such a transaction shall be public know and come to the ear of the duchess of  Marlborough it may be prejudicial to his future hope Mr Spencer be of a age to  dispose thereof say the defendant and miqht act as he think proper as he be  Himself law but notwithstanding this as the duchess of Marlborough be alive  and his father and mother dead she stand in loco parent and consequent he have  a parental dependence on her and therefore for fear of her know it he dare not  seek a remedy against this iniquitous bargain because of the risk he run of  divulge the secret the defendant must know Mr Spencer to be in distress for a  man of affluence and estate can have get money on the common term and  therefore the proposal itself speak his situation this be become a case of  public concern as it tend to the ruin of many other family but then say the  defendant consider the risk I run if it turn out against I I have lose my  money when compare the age of the person one the other atkins this a farce to  call it a risk the duchess of a age few arrive at and indeed no one will wish  to arrive at this be certain not a fair and just transaction but un equal and  therefore relievable in a court of equity but then the defendant say Mr  Spencer though only thirty year of age be of a weak and decay constitution and  therefore there be a equal chance whether he survive the duchess of  Marlborough this be a afterthought for Mr Backwell examine for the plaintiff  do not say it be at all consider it the time it be prove in the cause that Mr  Spencer be then and some year before and after of a robust constitution prior  to his marriage natural so but by a improper conduct bring into a decay state  but say the defendant all these observation be out of the case as Mr Spencer  after the duchess of Marlborough death give a new bind and warrant of attorney  to enter judgement and therefore become a common creditor the original bind be  to pay pound if Mr Spencer survive the duchess of Marlborough when he give the  second bind he be not free and at liberty not do he know atkins er p he can be  relieve and this subsequent transaction be therefore no confirmation or  sanction of the original bargain then say defendant it be no fraud though it  be not so in the particular signification of the word yet if it be unjust in  its nature exorbitant and extravagant this court have consider it in the  nature of fraud I will mention case of this complexion in which the court have  proceed on these principle where a contract have be exorbitant and unequal and  have believe though nothing illegal in the case as where avarice have appear  on the one side and poverty on the other and have also take into their  consideration the fatal tendency such case have with regard to the public  there be likewise other case in which t court have determine a subsequent act  shall not establish a contract original bad the case of sir Thomas mere before  Lord Harcourt there sir Thomas have in some mortgage insert a covenant that if  the interest be not pay punctual at the day it shall from that time and so  from time to time be turn into principal and bear interest upon a bill file  the Lord chancellor relieve the mortgagors against this covenant as unjust and  oppressive so Lord ossulston v Lord Yarmouth salk Broadway v morecraft Moseley  MiIford v Featherstonehaugh Ves see Thornhill v Evans post vol this case be  mention in Bosanquet v dash wood before Lord Talbot can in Eq in his time this  say he in give his opinion be a authority in point that this court will  relieve in case which though perhaps strict legal bear hard upon one party the  reason be because all those case carry somewhat of fraud with they I do not  mean such a fraud as be property deceit but such proceed as lie a particular  burden or hardship upon any man it be the business of this court to relieve in  all offence against the law of nature and reason atkins vern wiseman v beak a  tenant for life remainder to his first and every other son in tail remainder  to his nephew b b enter into several statute to c for payment of ten for one  upon the death of a in case he die without issue male in the life of b c in  the life of a bring a bill to compel b either to pay principal and interest or  to be foreclose of any relief against the bargain b by his answer declare the  bargain fair make and intend to abide by it and that he will seek no relief  against it a die and b bring a bill against the executor of c and  notwithstanding r former answer he be relieve against the bargain on payment  of principal and interest without cost wiseman be then year of age a man in  business a proctor in the commons and yet the bargain be set aside upon  general reason of equity and public inconvenience a strong confirmation too  there than here and yet he be relieve James v oades vern there a borrow pound  of b and give b a mortgage defeazanced to be void on r pay a pound per and for  eight year by quarterly payment the court declare it to be a agreement against  conscience and decree a redemption on payment of the pound with simple  interest and say if this shall be allow it may be carry to nine year and so on  without any stint or bind so in the present case if the court shall say it  will do at year of age it may as well do at and therefore no limit can be set  to it the case of Curwyn v milner the that of June before the Lord chancellor  king d wms marginal note there a heir of about year of age and who have a  commission in the guard borrow pound on condition to pay pound if he survive  his father and fatherinlaw but if he die be before his father or fatherinlaw  the lender to lose the pound the heir survive his father and fatherinlaw and  be relieve though after he have pay the money it be for fear of a execution  vern not v hill a purchaser oh a reversion from a heir in the life of his  father at a under value be set aside thouqh if the heir have die before his  father the purchaser will have lose all his money vern S c vern S c Eq ab S c  Charles can S c it may be say not be the case of a young heir and therefore  not like the present but that be not the sole reason court of equity go upon  but on general rule however for argument sake I will suppose it to be on the  first principle the duchess of Marlborough may then be consider in loco parent  the earl of Ardglasse v Muschamp vern Thomas earl of Ardglasse for pound in  grant to the defendant a rentcharge of pound per and out of land of pound per  and to hold to the defendant and his heir and to commence from the first  Michaelmas or ladyday after the earl death without issue male afterward the  earl atkins er p settle his estate for pound consideration to the use of  himself for life remainder in tail to all his issue male remainder in tail to  the plaintiff his uncle and then the plaintiff and earl Thomas both bring  their bill to be relieve against the grant of the rentcharge as obtain by  fraud and practice after which bill bring the defendant obtain a release of  that suit from earl Thomas and the atkins now earl bill be earl Thomas be dead  to set asideathe grant and release upon payment of pound with interest at the  first hear Lord keeper north doubt it may be too great a violation on contract  to set it aside but upon rehear after some day consideration he decree a  reconveyance or release of the rentcharge and that the same shall be set aside  and a perpetual injunction award upon the plaintiff pay the defendant pound  and interest and the defendant obtain a rehear afterward the Lord keeper then  declare he be full satisfy with the decree and that if he be to die present he  will make it and so confirm it your lordship observe that after the bill bring  for relief the plaintiff release it therefore he know he may be relieve and on  the bill bring by the uncle afterward the court relieve notwithstanding the  release for wherever it be a mischief that affect the public as the present do  the court will without regard what be do by the private party relieve I have  consider this case hitherto as a unreasonable and unconscionable contract and  that the bargain ought to be set aside upon principle of equity regard the  public but I shall now endeavour to show it be illegal Lord coke in his d Inst  ch say if any person after his death be find guilty of usury his good be  forfeit to the crown thus it stand as a offence at commonlaw but the statute  have indulge it to such and such point and yet wherever there be a attempt by  a transaction to procure a exorbitant gain it be certain illegal and  immaterial whether it fall exact within the statute of usury for still there  be something unconstitutional and illegal in it but I will go further and  insist it be illegal within the statute of usury themselves James c S nun  shall upon any contract direct or indirect take for the loan of any money c  above the rate of pound for pound for one whole year in pain to forfeit the  Triple value of the money due c S this law shall not be construe to allow the  practice of usury in point of religion or conscience clayton case   a the  plaintiff request Reighnolds to lend he pound and on communication betwixt  they Reighnolds lend Clayton pound do you Elizabeth till the second of June  follow to pay he for the principal and loan of it pound at the say second of  June if the son of the obligee be then alive and if he die before the say day  that then he shall pay he but pound which be pound less than the principal  resolve by the whole court that it be a usurious contract within the statute  for the reason give by Popham on Burton case   that if it shall be out of the  statute for the incertainty of the life the statute will be of little effect I  cite this to show that if bargain be contingent and a risk run yet even then  they have be hold to be usurious so in the case of Burton v Downham cro  Elizabeth where a agree with I S to give he pound for the forbearance of pound  for a year if b s son be then alive it be hold to be atkins usury by reason of  the corrupt agreement and it be the intent make it so or not so Anderson pl S  c so in mason v Abdi salk the obligor be bind in a bind of pound condition to  pay pound S premium at the end of the first three month after the date c and  sixpence in the pound at the end of six month as a further premium together  with the principal itself in case the obligor be then live but if he die  within that time the principal to be lose adjudge this as a usurious contract  because there be a possibility that the obligor may live so lonq and there be  a express provision to have the principal again in Carthew S c adjudge upon a  general demurrer that this be a usurious contract and if such contingency of  the death of a man in full health shall prevent the usury contingency may be  extend to the death of two or three more and so the statute be of little use  we have full evidence to show the circumstance and situation of health of Mr  Spen wax at the time the defendant lend the money and Mr Backwell examine for  the defendant say that he do not remember that when he apply to the defendant  to advance the pound he say anything of Mr Spencer health or way of live but  on be press to do it say he will consider of it and consult his brother about  it and afterward agree to lend it atkins er p John Griffiths a servant of the  old duchess of Marlborough say that in Mr Spencer lie under great necessity  for want of money and do owe several debt to the amount of several thousand  pound speak too as to Spencer expectation from the duchess and as to his  conceal his debt and own to he that he secret these affair from the duchess  for fear it shall prejudice he in her favour and hurt he in regard to the hope  he have from her will another witness William loftin swear Mr Spencer be  indebt to different person in or about may in pound and be not then able to  pay they or any part thereof and that he take all possible care to prevent the  duchess know that he be in debt and likewise to keep all other debt that he  afterward contract secret from her for fear he shall forfeit her kind  intention to he it be admit in the cause that Mr Spencer in may be only year  of age and the duchess James Napier who attend Mr Spencer as a surgeon swear  that in and before may he be not of a break constitution nor be his life a  precarious one but very strong and healthy and that he be likely to live many  year and that five year after this time he have a fever but get soon well and  from to enjoy perfect health and John Griffiths before mention say that on ask  the apothecary who attend he as to his judgement of the state and condition of  Mr Spencer health he say if Spencer can refrain from chew tobacco and drink  dram he may still live a great while be bear with a better constitution than  most man and several other person swear Mr Spencer enjoy a good state of  health in general till a few month before his death atkins the duchess of  Marlborough die October the that and Mr Spencer June the that Mr clarke of the  same side first beg leave to insist that if this contract have be examine into  at law it will have be consider there as a usurious one ever since money have  be make the medium of trade and commerce all civilize government have labour  to prevent exorbitant gain upon the loan of it the statute of the Henry c be  the first act that tolerate the take of interest by the James the court of law  be invest with a kind of equitable jurisdiction as it require they to take  into their consideration the particular circumstance of the case I will lie  down the inference first before cite the case first the intention of party at  the time of the bargain will have great weight in determine the court and if  it be plain a loan of money then usurious another principle be that wherever a  security be take for a large sum of money than be real advance it be usurious  unless the borrower by do some collateral act may be at liberty to pay legal  interest another principle be that the whole sum must be lend or else within  the usurious statute more Beechers case cite in the case of Reynolds v Clayton  as adjudge in b r there b deliver ware of the value of pound and no more and  take a bind with a condition to redeliver the ware to b within a month or to  pay pound at the end of a year the obligation be adjudge void under the  statute of usury this rest upon the intent of the bargain and I mention it to  show what opinion court of justice have of contingent bargain Burton v Downham  cro Elizabeth the intent of this be to have a shift Burton case   Robert v  Tremain cro James cottrel v Harrington Brownlow full case Leon but care be to  be take say the court in that case there be no communication for the loan of  money for that will make it usury consider the great number of case on this  head there have be a extraordinary uniformity of judgement in the judge of the  several court Comberb mason v Abdi take notice of by Mr Noel before but I  mention it again for the sake of what Lord chief justice holt say very  humourous you do run a great risk indeed not of the death of the person but of  the loss of your money Mr justice Dolderige say in Robert v Tremain Gro James  casualty of interest be usury but casualty of principal be not thus it stand  upon the case to apply they in their inference to the present case atkins er p  atkins the intention of party at the time of the bargain will have great  weight in determine the court and if it be plain a loan of money then it be  usurious the only thing in view here upon the first communication between the  party be a borrow for Mr Backwell examine for the defendant say that when he  apply to he he ask he if he will lend Mr Spencer the pound on the term propose  the bind itself be a direct security for pay double the sum lend upon the  encounter gency happen there be a agreement too for pay a large sum than lend  another mark and criterion Mr Spencer can not have deliver himself from pay  this sum by pay a less because the bind do not put it in his power to do so  next as to that part of the case which be hazardous in none of the case cite  do the court enter into the discussion of the nature of the chance but reject  this as be any ingredient for not consider the transaction of the party as  within the act for if they shall give this latitude in the language of Lord  chief justice Popham holt c it will be to make the act of usury mere waste  paper next what ought to be the fate of this bargain now it come to be  consider in a court of equity in the first place this court will not lie down  any express rule how far they will go in relieve against such bargain for fear  it will teach person how far they may safe go and if there be but a spark of  oppression a court of equity will relieve court of equity too will make free  with these bargain than court of law will do in Symonds v Cockerill Noy the  court mediate by oblige the borrower to pay the principal only the principle  now establish be establish with deliberation and even two of the judge who  doubt of these principle at first be force afterward from the growth of this  evil to dissent from their former opinion Chan Cas Waller v dalt before Lord  Nottingham Waller a young gentleman and two other employ one Willis to borrow  pound Willis employ Wiltshire who speak to dalt a silkman and buy of he silk  for pound the plaintiff give bind and judgement for the money Wiltshire sell  the silk for pound and keep pound for his and williss pain and pay pound to  the plaintiff the defendant never treat with the plaintiff and deny on oath  that he ever treat about the loan of money and depose the silk to be of pound  value or thereabouts but proof be give to the contrary decree only pound and  interest quaere for the interest and relief against the defendant quoad  residuum see Barker v Vansommer bro Charles Rep Chan Cas Barney v Beak Lord  keeper north reverse Lord nottingham decree as it be a hazardous bargain only  and no proof of fraud for come recent out of a court of law Lord north be at  first strict legal but afterward relax atkins Bernee v Pitt vern the plaintiff  be a young man and his father tenant for life only of a great estate which by  his death be to come to the plaintiff as tenant in tail and allow the  plaintiff but scanty be borrow pound of the defendant in and enter into two  judgement of pound apiece defeasanced each of they that if the plaintiff  outlive his father and within a month after his death pay the defendant pound  or if the plaintiff shall marry in the lifetime of his father then if he shall  from such marriage during his father life pay the defendant interest for his  pound the defendant shall vacate the judgement with this far clause in the  defeazance that it be the intent of the party if the plaintiff do not outlive  his father that the money shall not be repay in the plaintiff father die and  to be relieve against the judgement upon payment of the pound lend together  with interest be the bill which complain of a fraud and a undue advantage take  of the plaintiff necessity when in straight the cause come first to be hear in  Hilary term car before Lord Nottingham who in regard the judgement be for  money lend and not for ware take up to sell again at a undervalue and in  respect of the express clause in the defeazance of the defendant lose all if  the plaintiff die before the father do not think fit to relieve the plaintiff  against the bargain itself without pay the pound with interest from a month  after the plaintiff death the cause be reheard before Lord chancellor  jefferies who make no difference in the case of a unconscionable bargain  whether it be for money or ware and though atkins er p there be not in this  case any proof of any practice use by the defendant or any on his behalf to  draw the plaintiff into this security yet in regard mere to the  unconstionableness of the bargain he reverse Lord nottingham decree and decree  the defendant Pitt to refund foe the plaintiff all the money he have receive  of he except the pound original lend and the interest for the same in Burney v  tison vent Lord keeper north affirm Lord nottingham decree but add a non  retrahe in exemplum what seem to stick with he be set aside man bargain not v  hill vern ante this be the case of a purchase of reversion from a heir in the  life of his father where if the heir have die before his father the purchaser  will have lose all his money and yet Lord Nottingham upon the first hear  decree a redemption but on a rehear Lord keeper Guildford reverse it and Lord  chancellor jefferies reverse Lord guildford decree and confirm Lord nottingham  declare he take hill purchase to be a unrighteous bargain in the beginning and  that nothing which happen afterward can het p it Johnson executor of ill v not  vern the bill be bring by hill executor set forth that the defendant be only  tenant in tail and have covenant to make further assurance and pray he may be  compel to perform his covenant in specie and be decree to levy a fine Lord  keeper Guifdford seem now to remit from his strict legal notion for he deny  the plaintiff any relief and say the practice of purchase from heir be grow  too common and atkins therefore he will not in any sort countenance it and  dismiss the bill and leave the plaintiff to bring his action of covenant at  law in the earl of Ardglasse v Muschamp vern Lord Guildford remit very clear  from his strict legal notion many precedent in the Lord Elsmeres Lord Bacon  and Lord Coventry time and since be produce whereby it appear that  unconscionable bargain which have be make with young heir have be set aside by  decree of this court and after some day consideration have he decree a  reconveyance and upon a rehear declare he be full satisfy in the decree and  make use of this remarkable expression that if he be to die present he will  make it and so confirm it a series of precedent induce he to give the relief  he do bill v price vern the defendant have for many year practice on young  heir by sell they good at extravagant value and to be pay five for one and  more upon the death of their father and have obtain from the plaintiff and two  other young gentleman heir to good estate several security wherein they be  bind several and joint in pound for payment of great sum of money Lord  chancellor jefferies decree the plaintiff security to be deliver up on payment  of what the defendant real and good fide pay he alone and for his own proper  use Lamplugh v smith vern wiseman v beak vern before lord commissioner James v  oades vern before sir John Trevor Twisleton v Griffiths wms before Lord Cowper  who ground his opinion chief upon the case of Bernee v Pitt and say that Lord  jefferies decree stand there show that every one think the same be just and  that there be therefore no attempt in parliament to reverse it Lord chancellor  king in Curwin v milner as well as Lord north though strict legal at first  come to the seal determine in this case against the bargain though a exceed  strong one I shall mention only one case more with regard to the  precariousness of the bargain Lawley v Hooper Nov before your lordship post  vol S c the plain a young son and entitle to a annuity of pound a year for  life out of the estate oh elder brother be involve in debt and a prisoner in  that fleet and have no other mean of deliver himself from a gaol than by  dispose of the whole or part of the annuity sell to Mr Davenant pound a year  part thereof for pound in the deed there be a proviso that if at any lime the  plaintiff shall desire to repurchase the say three four of the annuity and  shall give six month notice to Davenant in write of his intention so to do and  at the expiration of such notice pay to Davenant his executor c pound then  Davenant be to reassign to the plaintiff or his assign after this deed be  ingross and when all party be meet for the execution Davenant insist upon a  endorsement and to be sign by the plaintiff that in case he shall repurchase  the say three four part the same shall be upon payment atkins er p of pound  and pound and all arrear which the plaintiff charge he consent to by reason oh  his distress circumstance atkins Davenant be dead the plaintiff bring his bill  for a account of what be due to the defendant for principal and interest of  the pound and what defendant have pay for the insurance of the plaintiff life  which by the bill the plaintiff submit to allow and that upon payment of what  shall be due the defendant may reassign the say annuity your lordship upon the  circumstance of the case think this be and be to be take as a loan of money  turn into this shape only to avoid the statute of usury and that it ought to  be set aside as a sale and make a security only and that the plaintiff be  entitle to redemption on payment of pound with legal interest for the same  thus it stand on the case and the rule they go by be the unconstionableness of  the bargain and the inconvenience to the public for they speak of it as a grow  evil these case and principle obviate the objection that from the answer of  the defendant may be presume to come from the other side as that Mr Spencer be  not a young heir nor suppose to be in necessitous circumstance forhe have  several thousand pound a year many of the case cite be not determine on the  rule of relieve young heir particular the earl of Ardglasse v Muschamp and  other Mr Spencer expectation be as great from the duchess of have be her son  and she may have be consider as a mat in loco parent and he as filiusfamilias  a man who have a considerable estate if his expense exceed his income be a  necessitous man where he be under difficulty of raisingmoney and be in great  want of it several witness prove the great straight Mr Spencer be in but this  evidence be not the only evidence for the contract itself speak it nor do any  of the case cite require evidence that he be necessitous in Bernee v Pitt  though no proof of practice use by the defendant or any on his behalf to draw  the plaintiff into the security yet Lord jefferies reverse Lord nottingham  decree such bargain be always do in secret and if the court be to require  proof extrinsic to the bargain it will he be say at once we can relieve I  shall consider next as to what the defendant may insist with regard to the  hazard the inequality be extreme great the duchess of Marlborough be year of  age and Mr Spencer be only there be evidence of his health bring down as low  as within ten month of his death and of his be of a strong constitution for  many year before this bargain his life be insure only in which can not have be  do if he have be in a bad state of health in the case of marriagebrocage bind  the court do not decree for the sake of the plaintiff because they may be say  to act perfidious but to avoid the inconvenience which will otherwise happen  to the public atkins the same as to the case of bind to woman of bad character  post note the same as to premium of attorney and guardian by client and infant  after come to age law v law before Lord Talbot can tempt Talb p W S c Selwyn v  honeywood that of October post vol S c Shepley v Woodhouse that of march post  vol S c pierce v wear before Lord Hardwicke Ves S c on the last point whether  the subsequent act have establish the bargain the case of coal v Gibbons wms  be extreme strong in favour of the plaintiff coal there a have pound give he  by his uncle in case he survive the testator wife sell it for pound to be pay  by pound per annum but that if the testator wife shall die before a and the  legacy become due in such case the rest of the money be to be pay within a  year then next a do survive the testator wife and know the legacy be become  due to he and be full apprise of the whole fact confirm the bargain he shall  be bind thereby and yet Lord Talbot say that have all depend on the first  assignment he will have set it aside as be a unreasonable advantage make of a  necessitous man but after Martin be full apprise of every thing and yet choose  to execute a deed of confirmation and not the least fraud or surprise appear  on the part of the defendant it be he say too much for any court to set all  this aside there a man be entire Himself law and do not owe the releasee a  groat and therefore his act be mere voluntary here Mr Spencer be indebt to  Janssen upon as if he stand atkins er p bind the duchess of Marlborough be  dead for the payment of the money and therefore be in his power and the new  bind and judgement only a sequel of what be do before and must be take to be  upon the same circumstance and as be say in the case of Bernee v Pitt be no  excuse but rather a aggravation as to the defendant say in his answer that Mr  Spencer do not at all want to set asideathe bargain but desire he to get a  bind add judgement forthwith for the pound he owe he the case of wiseman v  beak be very strong the prudence and policy of the court of law and equity  here do no more than what other nation have do in the same case dig lib law  word decree of the Senate macedoniani hc are ne who who fitio household  borrowed money to hand over etian post death parent he pron  interrog  in  potestate to be action petilioque to hand over ut to know who ruin pattern  fenarent no one posse filiifamilias good nomen await father death become law  sec be autem solus decree of the Senate to hit who borrowed money  filiofamilias devoted to nam money giving over destructive parent the dawn  visa be ex even if word decree of the Senate son to hold together yet in mask  grandson idem to make safe to withhold atkins June the that Mr Wilbraham for  the plaintiff make two point first whether this be a good contract in point of  law second if good in point of law then whether a court of equity can upon its  principle and power relieve against this contract our law allow a certain  moderate profit to be take for money but if we exceed it by any subterfuge or  what be call a shift if it be for a loan of money act of parliament have  rescind a contract of this kind though it have something of a chance in it  Lord chief justice Anderson in his second report pt say where there be a  borrow of money and a communication for interest the devise to have beyond the  rate of per cent be fraudulent and within the Henry it may be object in all  case of contingency where great than legal interest be take these have not be  hold to be usurious and bottomry bind will perhaps be mention but those be  regard chief in respect of trade and that be their principal foundation of be  allow the statute of James make usurious bind void in as many case as possible  the life of a gentleman of thirty be by this contract set against a life of  seventy eight and a wager whether that life will last beyond this must at that  e first view appear to be great for the advantage of the lender I hope  therefore the court will see it in the light of a shift or subterfuge to avoid  a act of parliament make with a good design and within the meaning or  intention of the statute of usury if stop a commerce of this kind which be  become a grow evil will be of public service it be time for this court to  interpose by these sort of contract man pledge their estate before they have  they and before they know the value of they no one who have a present power  over his fortune ever make contract of this kind he who have money at interest  or in the stock he who have a real estate in feesimple never deal in this way  which show this the necessity of the case that force they to have recourse to  these method and show too that this sort of commerce must general be practice  by young and unexperienced person who have expectation of succeed to the old  it be a observation general true and a melancholy truth it be that mankind  have not near so much regard to great reversionary inconvenience as to small  present gratification young man know not how to estimate what they never feel  the benefit of and by this sort of traffic their estate like their pleasure be  go before they be enjoy that this commerce promote and encourage extravagance  that extravagance in general be contrary to the policy of the law be not to be  dispute atkins because man spend not their own but the estate of other for  general in the ruin of one of these great prodigal a large number of poor  creditor be include I admit that against this sort of extravagance there be no  immediate remedy in our law the Roman law put their prodigal under curator  wasteful to interpose by speaking a thing a people of India administration the  magistrate have no such power here this true but this show the wisdom and  utility of the restraint what be the effect of this extravagance a trade of  annuity of junctims atkins er p of post obit be establish as a staple to  encourage young gentleman to undue themselves this commerce have be exclaim  against ever since know the world and mankind have wish that some stop may be  put to it whoever engage in these scheme his ruin be pronounce not far off and  by these mean they destroy their estate though they spend but half of they how  far then this sort of contract may be regulate by a court of equity be the  next consideration the law in case of usury rescinds the contract quoad the  borrower and give a forfeiture of Triple the value of the loan this be severe  a court of equity moderate the case allow the lender the loan and interest for  it while lend so Ves Ves bro Charles Rep but prevent he from receive that  unjust price which his avarice have set upon the risk he run upon these  principle it be to be consider whether this species of contract be not within  the reason of other case which bear a analogy to it and governable by the same  rule there be contract of several kind which be not suffer to prevail marriage  brocage bind be set aside though a marriage be fair procure though it be a  great service to the party who give such bind though the man and woman be both  of age and no disparagement and though they neither of they disapprove of the  marriage in the case of hall v potter parliament case the house of lord on  account of the dangerous consequence to family reverse a decree of the Lord  keeper who be of opinion not to relieve against a marriagebrocage bind if  contract allow to be good at law have be set aside in equity because dangerous  to family a strong they shall be so where they be destructive to family the  principle on which this court have set aside contract with young heir be where  they have sell their reversion or remainder or bind themselves to pay  unreasonable sum on the death of their ancestor in the case of Twisleton v  Griffiths wms Lord Cowper relieve against a agreement to sell a reversion at a  under price declare that these bargain be corrupt and fraudulent and tend to  the destruction and ruin of family and that the relief of the court ought to  be extend to meet such corrupt practice and unconscionable bargain and in  Curwin v milner Lord king ground himself on this that the court will set aside  contract of this kind where the person contract have expectation after the  death of atkins another and in the case of coal v Martin wms Lord Talbot say  that as to the case of young heir make bargain it be the policy of the nation  to prevent what be a grow mischief to ancient family seduce they from a  dependence on their ancestor and therefore the policy of the nation have think  fit to set aside such bargain with young heir this be the general principle a  man if he have any reversion in effect sell it and the present case tally with  those I have mention in all the pernicious consequence what inconvenience then  can arise in put a stop to this trade for as it be the same sort of man who be  concern in every one of these contract the lie a embargo upon this commerce  will not at all hurt the constitution for they be only fuel to extravagance  the defendant in his answer object the plaintiff be not entitle to relief  because there be no pretence of fraud I do not say there be any but public  inconvenience alone may induce the court to interfere though there be no  apparent fraud it be insist too Mr Spencer be not a young heir for he be  thirty but although of that a e yet not old enough to manage his fortune so as  to keep within bind Mr Twisleton be at the time his contract be make and yet  the court do relieve he notwithstanding though it be true Mr Spencer be no  heir to the duchess of Marlborough yet from her constant declaration he be  look upon to be quasi her adopt heir the defendant consider he as such else  why shall he be more able to pay at her death than at any other period so that  he be quasi hres and as a heir have only a ground of expectation if Mr Spencer  have the same that be a foundation for a court of equity to relieve Mr Spencer  be indisputable the sole favourite the duchess of Marlborough have her common  expression be jack be no beau nor be he a courtier but he be a honest man I  never be but four time in her company and yet hear her make this observation  every time atkins er p the next objection that Mr Spencer be not under those  necessity that person general be who enter into these sort of contract and  that this be the main ingredient in the relief give in case of this nature but  the fact be clear otherwise he who have a great estate but life at double his  income who have a multitude of footman at his gate but more don be poor be  under press necessity it be prove that Mr Spencer owe in above pound and be  under the great difficulty and be not the evidence of Mr Backwell that he have  hawk this proposal bout the strong proof of his extreme necessity who for  suffer a traffic of this kind to be make public unless he be necessitous do he  not run a much great risk than the defendant do he not risk his whole  expectation he may be say to be poor who be in debt and can pay nor do I know  a instance of a person grant a post obit without his be reduce first to the  great extremity atkins the last objection be that Mr Spencer though he live a  year and eight month after the death of the duchess yet he never think proper  to seek relief against it but on the contrary ratify the bargain as to Mr  Spencer not seek relief against it it be no wonder this be in the nature of a  debt of honour a debt depend on chance and the false notion of honour which  prevail in the world will engage a man to pay this sort of debt while the poor  creditor who furnish he with the very bread he eat be turn away without a  penny Mr Spencer have not a sum of money leave he under the will of the  duchess of Marlborough but only a large investment to be lie out in land so  that here be a immediate payment to be make to the defendant and no personal  asset to answer it and though the rend of his estate be great and with good  economy may have clear he yet there must have be a length of time first I use  these argument to show Mr Spencer be under the same pressure he be before with  this aggravation the debt be become great and no money can be raise of his  estate but by rend and profit I do not throw out anything against the person  of the defendant only press the relief in this case for the sake of Mr Spencer  tradesman who as they be only simple contract creditor have no chance of be  pay any other way I lie it down as a rule that this species of traffic be a  public inconvenience and as it grow into a trade and commerce I know of no  method but the application to this court to remedy it for it be of such a  complicate nature that even the legislature can help it and therefore as this  court can only meet the mischief we hope they will give their assistance to  put a stop to it and relieve upon the term pray by the bill on the money real  lend only Mr Crowle of the same side the question in this cause be in fact  between the butcher baker poulterer and other tradesman of Mr Spencer and the  usurer the relief that be pray by this bill never pray before in any bill that  this contract shall be set aside here for usury but the defendant insist this  contract be not illegal nor usurious from the to this time there be not above  two determination at law on usurious contract and the reason be this court  have under the notion of fraud take cognizance of these case draper v dean and  Jason Finchs Rep the plaintiff lend sir Robert Jason pound who for secure the  repayment thereof with interest mortgage the land in the bill mention and  afterward the defendant dean set up some prior encumbrance to defeat the  mortgage and particular a statute of pound against which the plaintiff now  exhibit his bill to be relieve for that atkins the defendant dean have furnish  sir Robert Jason in his father life lime with good and with five horse value  the same at pound for which this statute be give but that the horse and good  be afterward sell by sir Robert Jason for pound which be the utmost value  thereof the court declare this to be a case of great hardship and that deal of  this nature Ought to be discourage and that if sir Robert Jason have be the  plaintiff he may have be relieve however they decree a account and to compute  what be due to dean for horse and good and the real value thereof to be sell  at the respective time when the same be sell and deliver with interest from  such time and on payment thereof the statute to be vacate see Waller v dalt  Charles can Barker v Vansommer bro Charles Rep atkins er p here be a most  corrupt scandalous agreement and one will have think they can not miss the  statute of usury in a case undoubted within they and yet not insist upon ld  king in the case of Curwin v milner may very well doubt whether he can give  relief because though they argue very pretty on the circumstance and fraud in  the case that be not sufficient to satisfy he but if he have happen to fix  upon the steady basis of the statute of usury he will have decree upon a  unshake foundation I will consider the case next upon the statute of usury and  whether this be not such a shift or device as be within the statute a shift to  avoid and evadeathem the preamble to the h c say where before this time  diverse act have be ordain for the avoid and punishment of usury and of other  corrupt bargain shift and chevisances which act have be so obscure as to be of  little force or effect for reformation thereof be it enact that all and every  the say act shall from henceforth be utter void the three section be that no  person of whatestate degree quality or condition soever by way or mean of any  corrupt bargain loan exchange chevisance shift or interest of any way c or by  any other corrupt or deceiIful way or mean or by any covin engine or deceiIful  way or conveyance shall have receive accept or take in lucre or gain for the  forbear or give day of payment of one whole year of or for his or their money  c above the sun of pound in the hundred the five section if any person shall  do any thing contrary to this statute he shall forfeit the Triple value of the  ware and other thing sell c this be the first statute that allow any lucrative  interest the confirm statute of the Elizabeth ch make h perpetual then come  the James c S No person shall take for loan of money above eight for a hundred  for one year c every shift device c to evadeathe statute of usury fall within  this statute the question be whether at the time of this contract Mr Janssen  do not mean to secure himself a large interest than the statute allow if he do  it be a void bargain atkins the cotemporanea exhibition be proper lie down to  have the most weight and the judge at that time be some of the great man that  ever fill the bench in clayton case   it be say every device shift c where  there be a agreement or communication for loan of money be within the statute  of usury the concurrent opinion of the king bench common plea and court of  exchequer that clayton case be a right determination and the judgement there  within year after make the statute of Elizabeth cro Elizabeth button v Downham  a mistake or omission in the state of this case but Lutw in mason v Fulwood  have rectify the error for speak of button v downham case he say I have see  the entry in the roll by which it appear that as well the interest as the  principal be in hazard though it do not so appear in the book where this case  be report bottomry be not a communication for the loan of money but a  partnership for the honest intention of seek a livelihood by trade and a plain  distinction in Hardres the case of joy v ken a action of debt upon a  obligation condition to pay so much money if such a ship return within six  month from ostend in Flanders to London which be more by the three part than  the legal interest of the money and if she do not return then the obligation  to be void the defendant plead it be a corrupt agreement and that the  obligation be enter into by covin to evadeathe statute of usury and the  penalty thereof Lord chief baron hale hold clear this bind be not within the  statute for this be the common way of insurance and if this be void say he by  the statute of usury trade will be destroy and not like the case where the  condition of a bind be to give so much money if such or such a person be then  alive for there be a certainty of that at the time but it be uncertain and a  casualty whether such a ship shall ever return full case the Elizabeth a grant  of a annuity not within the statute for no communication of loan beddingfields  case the Elizabeth the principal there suppose to be risk Noy simmonds v  Cockerill James f a rentcharge of pound per and for pound for eight year on a  contingency yet usury if on loan though principal in hazard Robert v Tremain  throw cro James hold usury though on contingency atkins er p king v Drury lev  No usury where in the power of granter to avoid grange v swain James principal  in hazard Lutw mason v Fulwood Lutw principal also in hazard mason v Abdi salk  principal there also in hazard Mr attorney general sir Dudley rider for the  defendant the counsel for the plaintiff will in the first place set asideathis  contract as usurious and if not void at law as usurious yet it be insist ought  to be set aside in equity as improper and unconscionable atkins it be in vain  to lie down a rule to restrain every man and every family from ruin while the  law allow every person to be sane till by his crime or his contract he cease  to be so as to the first point they have be please to make of legal usury its  novelty do not recommend it much the notion of usury original be the take any  sort of prize for the loan of money but as the law stand now it be take a  illegal prize only the statute forbid a high prize than the legal interest the  statute of the James c S nun shall upon any contract direct or indirect take  for the loan of any money or other commodity above the rate of pound for pound  for one whole year in pain to forfeit the Triple value of the money or other  thing lend in order to make it usury there must be a loan of money which money  be also to be repay and there must be a prize for the loan of that money more  than per cent nor shall any artificial contrivance whatever evadeathe statute  and if this contract be a colourable agreement only to avoid the statute of  usury and be real a communication for the loan of money it be within the  statute but this be no contract for a debt due when it depend upon a  contingency that may never happen serj Hawkins plea of the crown book ch of  usury sec No contract be usurious by which the lender run the hazard of lose  all his money both principal and interest as in the case of bottomry cro  Elizabeth Bedingfield v AshLev a deliver to b pound who by indenture covenant  with a to pay to every one of a s child which then be and shall be live at ten  year end pound a have then five daughter and for assurance mortgage a manor  and be bind in a statute of pound it be not usury but a mere casual bargain I  mention the case of Robert v Tremain cro James for the sake of Mr justice  dodderidge observation if say he lend pound to have pound at the year end upon  a casualty if the casualty go to the interest only and not to the principal it  be usury for the party be sure to have the principal again come what will but  if the interest and principal be both in hazard it be not then usury cro James  sharp v Hurrel a ship go in she fish trade to Newfoundland which voyage must  be perform in eight month the plaintiff give the defendant pound to repay  pound upon the return of the ship to Dartmouth and if by leakage or tempest  she shall not return in eight month then to pay the principal money videlicet  pound only and if she never return then he shall pay nothing all the court  hold that this be no usury within the statute for if the have stay at  Newfoundland two or three year he be to pay but pound upon the return of the  ship and if she never return then nothing so as the plaintiff run a hazard of  have less than the interest which the law allow and possible neither principal  nor interest atkins it be not within the statute because no debt till the  accident happen of the ship return as both principal and interest be hazard  the distinction wherever the contract on the loan of money be upon a  contingency that be colourable or so slight as be contrive mere to avoid the  statute the statute shall have its effect when this ground be apply to the  case cite on the other side it will overturn the consequence they draw from  they to the present case the agreement must be corrupt or it will not be  usurious Reynolds v Clalyton more the ground the court go on clear be the  original contract be real for a loan of money and the fact in that case a mere  evasion to avoid its be a loan cro Elizabeth button v Downham it be the intent  that make it so or not for if it be a wager it be not usury every contract  which be a real contingency be a wager and be not do mere colourable to avoid  the statute atkins er p cotterell v Harrington Brownlow a for pound grant a  rend of pound for eight year and another of pound a year for two year if b c  and d shall so long live in replevin the defendant avow for the rend and the  plaintiff plead the statute of usury and set forth the statute and a special  usurious contract say in this case if it hadbeen lie to be upon a loan of  money then it be usury but if it be a bargain for a annuity it be no usury but  that this be allege to be upon a lend full case Leon a give pound to b to have  a annuity of pound assure to he for year if a and his wife and four of his  child shall so long live per cur this be not within the statute of usury so if  there have not be any condition but care be to be take that there be no  communication of borrow any money before mason v Abdi in show Rep Lord chief  justice holt say in that case that a die in six month be no hazard and  therefore usurious this be very material for my argument because it imply  strong if it have be a real hazard it have be no usury a bottomry bind be  admit by the other side to be a hazardous contract but say not to be within  the statute because allow for the sake of trade I do not take this to be the  reason the true ground of the allowance in court of justice the lender be to  be pay for a good fide risk and all turn upon this whether a colourable  contract to avoid the statute in the case of joy v ken in hard the bottomry  contract be put upon the same foot with other contingent contract and within  former case because it be mere colourable the true point therefore on which  the present case must turn be whether the contract between Mr Spencer and the  defendant be for the loan of money and whether more interest be original mean  to be take than legal and if mere colourable atkins and a device to avoid the  statute first the contract here upon the face of it be not a contract for any  thing but mere a contingent bargain second nothing that can show it to be  otherwise either from the circumstance of Mr Spencer at the time or the light  he stand in with regard to the duchess of Marlborough No pretence that the  defendant make any agreement he shall have the pound on any other contingency  but Mr Spencer survive the duchess of Marlborough it be object that this be a  loan because the word tend be make use of by Mr Spencer to Mr Backwell the  word loan make no difference it be a communication only between the party on a  corrupt agreement to avoid the statute upon which it turn the word borrow here  make no difference for suppose he have say to sell this court will equal have  judge whether it be usury and it must be the good fide intention of the party  advance must determine the nature as the defendant take it altogether upon the  contingency I will now consider the nature of the contingency which be say to  be so total disproportionate Spencer be only and the duchess year of age and  on this account so glare that it must be a gross fraud and imposition Mr  Spencer as be prove in the cause be at that time of a bad constitution accord  to the judgement of person experience in these thing break by a intemperance  with woman a intemperance in wine and a obstinate continuance in it and when  he be tell it say I desire to live no long than while I be capable of follow  this course of life the duchess of Marlborough indeed be year old but in point  of constitution extreme likely to live many year and suppose Mr Spencer be  understand then to be in a consumption and know to be so in the opinion of  eminent physician will your lordship say this contract be so very  disproportionate but we do not go upon mere supposition for he actual die in  ten month time after the duchess not in a common way but with a break  constitution upon a computation at the time this money become due interest  upon interest and insurance at per cent only bring it to pound so that if the  duchess of Marlborough have live six month long the defendant will have be a  loser and this too upon a supposition the defendant can have insure at per  cent but no evidence he can have do it at this rate Lord MounIfort who have be  examine and understand these thing extreme atkins er p well say in may he look  upon Mr Spencer life to be so bad he will not advance money on any term no  body therefore beside the defendant will have advance any money upon this  contingency have state thus much I will now come to the next point the  consideration of the case as it stand on the foot of equity I will first  consider it on the original contract and second on the act that have be do to  confirm it and hope to show it be a fair bargain in the beginning or if not so  Mr Spencer who can give up this advantage have do it by subsequent act atkins  the general principle lie down on the other side that this be a unconscionable  bargain be from the manner of obtain it the last consideration be whether it  be such a contract as independent of fraud iniquity and unfairness ought for  the public good to be set aside the defendant at the time be a total stranger  to Mr Spencer so swear by himself in his answer and no evidence to the  contrary in no shape whatever a person who have be look out for young  gentleman to draw they into scheme of this kind not of the defendant seek but  seek out by Mr Backwell Mr Spencer agent he do not look upon it as a  beneficial bargain but absolute refuse it and be press to accept it it be not  pretend Mr Spencer be a weak man or liable to be impose upon nay more they do  not so much as charge imposition in their bill not a young man not under the  care of a parent marry not want a estate have then very near pound a year in  land pound per and long annuity pound settle on his marriage a interest in it  to himself for life at least pound a year more a leasehold estate of pound a  contingent interest in the sum of pound which be leave to the countess of  Sunderland by her husband with a power to dispose among such of his child as  she shall think fit a great personal estate in furniture picture c beside what  then be his necessity he want this sum to pay tradesman only it be prove in  the cause he hate game and never lose pound at any one time in his life it  proceed from a honestley to pay debt and if he have advice with his best  friend I do not mean lawyer and have state how his affair be situate and there  be no other way of raise it will his friend or even the law say you shall not  raise it because you can only do it in this way it be object he be a young  heir and compare to several case and therefore say Mr clarke here be now a  general rule or prince e on which this court can determine to be a void  contract but I see no such inference as he endeavour to draw from it it be say  too there be a person who in insure Mr Spencer life at per cent this be not a  public office but only a underwriter who may not know the state of his health  for they be not very cautious in insure we shall show a application to the  royal insurance office and they will not insure his life at all there be not  any one of the case but what will turn upon this principle that there be fraud  and imposition and if no actual fraud here nor imply presumptive fraud there  be no ground to relieve upon the very foundation the commonlaw go upon to get  rid of the statute de gift and for which the fiction of a common recovery be  introduce be for the sake of a man be empower to pay his debt it be say Mr  Spencer have very great expectation atkins and yet the will under which hetook  be not in be at the time of this bargain but be make several year after I  shall now take notice of the case cite for the plaintiff Waller v dalt Ch Cas  the court relieve there upon a very gross imposi cion and be even within the  statute of usury Bernee v Beak Ch Cas it be determine likewise for the same  reason there wine be palm upon the plaintiff when he want money value too at  pound and sell for pound only Bernee v tison Ventr there be also a gross fraud  batty v Loyd vern the reason Lord keeper north give at the end make it a  material case for the defendant this say he be the common case pay I double  interest during my life and you shall have the principal after my decease  because person apply for money and can get it just on the term they will wish  that be no reason for a court of equity to interpose not v hill vern the court  relieve there because it be a unrighteous atkins er p bargain in the beginning  and nothing afterward can help it and do not go at all upon the contingency  the earl of Ardglasse v Muschamp vern a most extravagant imposition in that  case bill v price vern go altogether upon impose extravagant on young man by  take five for one James v oades vern set aside because against conscience not  because contingent Twisleton v Griffith wms the court relieve because this be  the case of a heir who be less upon his guard by be seduce from his parent and  be beside a grow evil a imposition too by a person under a pretence of  friendship by get he from his father Bernee v Pitt vern the court there go  mere upon the unconstionableness of the bargain which show they consider it as  fraudulent and therefore these case amount to no more than relieve against  fraud Mr clark conclude that the court will consider the nature of the bargain  and determine upon reason of public inconvenience but Mr Wilbraham say right  no certain rule can be lie down because that rule itself will be attend with  dangerous consequence when apply to other case and that even the legislature  can not reach it and if so it be strange to say this court can meet the  mischief to be ashamed hc taunt we et form to be able et non to be able refute  it be say wherever there be a private clandestine contract or marriage  contrary to the original proper contract the court will relieve the very  sharing in sin but the ground the court go upon there be that there can be  such a case without fraud in it and wherever there be a fraud it be impossible  to put a case in which the court will not relieve atkins another case have be  put of attorney while their client be in distress and in those circumstance  prevail upon they to enter into a unconscionable agreement as in the case of  Japhet crook post where your lordship relieve on the second hear though on the  first you doubt whether you can do it but in this case though the party have  pay the money to a attorney the court will relieve upon general principle his  be suppose to be more know than his client and therefore make the contract  with his eye open a man may contract on a future contingency a mere  possibility I be consider then upon what general ground your lordship will  proceed will the court lie it down for a rule that Mr Spencer can not have  dispose of a contingency on the death of father and mother or grandmother will  the court say that a man shall not dispose of a expectation the case of Hobson  v Trevor wms be a strong authority to show that a contingent or hazardous  bargain will be decree in specie in equity a man can at law sell a interest in  a estate but he may contract and judge have be clever as Lord Hobart say in  another case by introduce common recovery to give people a power for the sake  of the public convenience to dispose of a reversionary interest in every case  where it be necessary a court of equity will relieve and if they do not I will  venture to say it be not such a case as be real and substantial necessary but  if your lordship shall determine in the manner the plaintiff counsel desire it  will be determine that a person in the same situation with Mr Spencer can for  the best purpose in the world the payment of debt enter into such a contract I  shall consider next the point of confirmation subsequent act my first position  be that Mr Spencer have a right to release any demand he have upon another he  have not only ratify it but establish it upon term though I will allow at the  same time this judgement as well as any other contract be can able of be set  aside but then it must be upon the original contract be find in fraud it be  object that at the time of the latter transaction he be under the same  necessity this be clear contradict in evidence it be say too he be under the  pressure of debt but be that a reason for set aside every particular contract  the judgement here give in the free manner Mr Spencer himself send for sir  Abraham Janssen atkins er p nor be there even a suspicion Mr Spencer think the  defendant have do any thing contrary to the nice notion of honour Lord Talbot  in the case of coal v Gibbons wms say he can not relieve because the person  there after be full apprise of every thing execute a deed of confirmation of  the former assignment atkins the impossibility of Mr Spencer be impose upon at  the time he confirm the bargain be the strong circumstance that can possible  be in our favour in the case of standard v Medcalf which come first before l  rd Talbot and afterward go up into the house of lord his lordship think it a  fraudulent transaction and say if it depend only on the settlement he will  have relieve ut the will take off from it because she have do that voluntary  and show the fairness of the former contract the present be a much strong case  for there be nothing fraudulent in the original transaction and therefore a  voluntary confirmation will have still the great weight with the court Mr  solicitor general Mr Murray for the defendant the first question be whether  the bind take as it stand original be a void bind at law by reason of the  statute of usury and if it be I will not take up the time of the court in  argue on the subsequent transaction the second question be whether on the head  of equity this court can set aside a legal contract on the ground of the  defendant have act unconscionable if both these be against the plaintiff a  three question have be make that suppose it to be good in law and in  conscience whether the court shall not set it aside on political reason I will  endeavour to show hereafter why such a ground of determination be impossible  in this court but at present beg leave to insist this be as honest as fair and  conscientious a bargain as can be make of the contingent kind first I shall  take notice of the circumstance character and situation of life of the obligor  second the same as to the obligee three the motive or reasonableness of it  under his situation then to solicit such a bargain fourthly the manner in  which it be propose and bring to a conclusion five the fairness and equity of  the price accord to the probability at the time and the event which have  happen since six the opinion Mr Spencer have of it in his private think even  down to the last moment of his life first as to circumstance which be always  material in these case as to Mr Spencer understanding he be not charge by the  bill to be weak nor likely to be impose upon nor that he be impose upon Mr  Spencer be then turn of no heir of any sort at that time have no father but be  himself the father of a family be in no state of disobedience with grandmother  uncle or any atkins other relation never gain in any part of his life never  lose pound in his life put it all together it be material that t he have then  take up and be grow more temperate another sort of circumstance be that of  fortune possess of a fine family seat park c and estate in land of pound a  year have the interest of pound reversion to himself in fee for want of young  child and he have no young child have a right in pound exchequer annuity a  chance in a sum of pound a hope or expectation from the duchess of Marlborough  he have plate jewel c fit for his rank so that beside his personal estate and  his expectation from the duchess he have at that time pound a year for life he  be a young brother and a commoner and yet have pound a year more than the  estate of the family have ever be to support the honour and title from all the  evidence in the cause he be addict to woman and wine but reclaim two year  before he enter into this bargain people have as many way of run out as get  estate unaccountable how he have contract pound debt and debt to tradesman as  be insist on our sideathe witness swear that he be press by tradesman and that  the debt amount to this sum the plaintiff shall have adapt their interrogatory  to this point who be he indebt to atkins er p three the motive or  reasonableness of it c he may very proper say justice oblige I to pay they it  be scandalous not to pay they it debase a man of figure and fortune another  motive be that the clamour may not reach the ear of the duchess of Marlborough  can he have have the assistance of all his relation nay if he have have the  honour and happiness of consult your lordship attend as you be can he have be  better advice in his situation he must have do it by sell his reversion and  chance on the death of the duchess either on single or both together annuity  No man will have advice he to sell his personal estate family picture jewel c  this be disgraceful and will have be reject by the whole family can he have  pay it out of the annual profit of his estate how must he live in the mean  time beside the clamour of tradesman will have continue for they will not have  stay till the money d in this manner but why shall he at the age of pinch for  the sake of a son who at will be master of pound a year the next consideration  be the point of a single or both together annuity whoever want such a contract  must pay for it if a man sell a annuity for his own life the price of middle  age and good health never exceed above seven year but if the same man want to  buy he give year and in one case atkins prove in the cause to have happen in  sixteen or seventeen year if the life be a bad one he be make to abate in  proportion take it at the common price he must have pay pound a year for pound  at the best these reason will have dissuade he from deal in annuity shall he  have sell his reversion there be a chance of his have another son nay his son  marry under age and have a son can he have sell the chance under Lord  Sunderlands will he can not have sell it for any thing and yet he have a  chance if lady Sunderland die without appointment or shall make a void one and  a bill be now depend here whether the appointment she have make be good one  thing more leave the hope from the duchess of Marlborough it have be say that  from the hatred of the duchess of Marlborough as well as her love lid have  almost a certainty of very great advantage suppose he have say I will live  frugal for the future and pay my debt with money raise out of my income rather  than mortgage my expectation I shall have think his reason just but still if  he have not take this method will he not have be liable to a execution where  the fine picture sell by the yard beside the infamy of it these be his  circumstance the next consideration be as to the circumstance of the defendant  No charge in the bill either as to his condition character or manner of deal  if he have make another bargain of the same kind it be material to have charge  it he be not personal acquaint with Spencer be no companion in any  extravagance that may create the debt nor do he partake of it afterward by  live with he he can therefore be say to be a devourer and to be lie in wait  for that purpose be his property then to be take from he because there may be  such a man his character in every respect stand clear and unimpeached when Mr  Spencer have engage so far as to desire a bargain of this sort he form himself  what he think the fair price and be not haggle into it afterward by his friend  and agent he propose to any one who will buy it and be refuse by several  person because it be not a advantageous one fourthly the manner in which it be  propose and bring to a conclusion the offer send to sir Abraham Janssen and  proposed in the first moment as a conditional bargain in one event a certain  loss in another a very probable but uncertain gain if Mr Spencer and the  duchess both live many year he consider not only the age of the party but  their manner of life if he have buy upon life without know something of they  it will have be a ground for a commission of lunacy the proposal simple accept  of by the defendant without tack any one condition of his own atkins er p  atkins five the fairness and equity of the price c and now the actual event  whoever buy on a life must have a particular regard to the constitution and  manner of life and age of the person Mr Loubier who have be examine in the  cause and be a director of the London insurance say unless all these  circumstance concur they never will insure at the public office as to the  objection of inequality the bargain itself suppose a inequality and that the  duchess of Marlborough will die first otherwise no money ought to have be pay  but it shall have be lie you a wager of pound the duchess of Marlborough die  first suppose it equal the duchess of Marlborough take more care of her health  than most people Mr Spencer be intemperate in wine and woman Mr Middleton the  surgeon prove he will not forgo his pleasure for any advice with regard to  health for on his take the liberty to tell Mr Spencer that if he go on in his  irregular course or do not alter his way of life he will destroy himself he  desire Mr Middleton will not trouble himself about it for that he do not  desire to live long than his constitution will enable he to live in the manner  he like Mr Spencer have frequent venereal disorder and in their severity and  insurance office let it be who life it will deduct two year when a person have  go through such a shock to his constitution he be careless of his health for  if he heat his blood with sit up the night before he next morning frequent  appear to his friend in the nightgown he bring into the world with he he be  afflict with the rheumatism from August and some part of and salivate in the  November of that year two witness indeed say he be hale and sound till within  ten month before b be death and yet other say he be but a twelvemonth before  his death very ill his complaint f want of appetite and indigestion carry he  to bath these be notorious the effect of former drink and a break constitution  and not sudden disorder physician be not certain nor infallible they pronounce  people dead and yet they recover and bite they sir Scipio hill after he be  give over live year and annuity be hold on his life every body look on the  duchess life as very good and Mr Spencer very bad at the time of the bargain  for a common rheumatism the grand relief a very uncommon remedy it certain be  the ill consequence of former intemperance so inveterate as to get into his  bone and yet can not come at the root of it in he drink dram and small beer in  the morning do not the defendant then run equal risk take it on the event of  death the duchess of Marlborough live six year and a half and Mr Spencer only  month more he die through want of care and she of old age it be difficult to  say what the risk be equal to they have atkins endeavour to show for the  plaintiff sir Abraham Janssen can have insure Spencer life during the duchess  of Marlborough for pound per cent but have examine only Stephen loftin to this  particular and it be very material that they may have examine many more and  material too that loftin do not say he inquire into his health and manner of  life before he insure for argument sake I will suppose the defendant can have  insure at pound per cent he must so insure as to have his money back he must  insure the principal interest and premium interest must be compute on interest  and no other way of do it for if lend at pound per cent and be not pay till  the end of six year I have not pound per cent for my money bishop lease be  compute on this foot so in this court between tenant for life and reversioner  not a equal computation for the advantage be against the reversionner suppose  interest and premium insure the first year interest upon interest and premium  and interest on that the second ear and so to the duchess of Marlborough death  it will have amount the October in which she die to pound and be must have  insure another year the bargain therefore in all circumstance fair and in no  bargain whatever do this court weigh it on nice rule of equality as for  instance if a man want a particular piece of land contiguous to his own and  give year purchase the court will not set it aside for that reason only the  plaintiff have not go into evidence to show Mr Spencer can in any time of his  life have have this money on a better bargain six the opinion Mr Spencer have  of it in his own private think he know whether he be handsome or unhandsome  deal by or whether impose upon there be numberless declaration of his in  private that he have be atkins er p fair deal by nun of the witness say they  hear the least insinuation he ever complain of his bargain he write himself to  sir Abraham Janssen after the death of the duchess of Marlborough to bring a  bind and judgement the defendant as be prove in the cause say that though he  want the money he will not distress he on which Spencer reply how much more  handsome you use I than other people do he afterward pay the defendant pound  in part and then another pound all these action show his own private opinion  of the defendant and that he do not think himself under any distress or  influence Lord chancellor ask how soon after the duchess of Marlborough death  the money be to be pay upon turn to Mr Backwells deposition he give the follow  account that he tell sir Abraham Janssen Mr Spencer will pay he pound at the  duchess death and therefore say the solicitorgeneral though the defendant  answer say it be propose to pay he pound at or some short time after the death  of the duchess of Marlborough yet as there be no evidence to contradict it be  be liable to be atkins pay at the time of her death it make a end of any  question that may arise from the payment be postpone to a further time the use  that be to be make of this money be very material it be for payment of debt  and so likewise be the application for the money be pay into Loftins hand for  the discharge of his tradesman to say that the defendant think at the time  there may be a dispute on the validity if the contract be impossible because  that be make he a lunatic for then it be say one way you win but every way I  lose the next question whether the contract be void in law and I agree with Mr  Crowle if void in law it be put it upon a clear solid foundation a bargain for  a contingency and no objection make that it be not lawful and for any  contingency that be lawful you may even at law contract if any objection at  law it must be upon the statute of usury where a great interest than the rate  allow be take a notion prevail for many year that it be not lawful to take any  hire for money this be adopt from the canon law and even prevail to this day  in many catholic country it be astonish how prejudice shall have keep common  sense so long out of the world why be not money a commodity as well as any  thing else and yet a very sensible civilian roof argue against it harry the  eight towards the latter end of his reign have a mind to get the better of it  not in a direct way but by fix the rate of usury which continue down to queen  Ann s time Mr lock in his consideration upon reduction of interest seem to  think for political reason the rate of interest shall not be fix at all but  leave to find its own rate of value in the market and be of this opinion he  never lend or borrow a contract of usury be the hire of money at a certain  price for the use of it there must be a principal and there must be to bring  it within the statute a rate of interest exceed what be allow if of another  nature not within the statute at commonlaw a condition on hazard and  peradventure be not within it some old statute call it dry exchange contract  on bottomry be not except out of the statute but depend on the nature of the  thing discount of note no principal due from discounter which be forbear so  buy up security at a low rate when pay it come to more than legal interest  compare with what the buyer give so in the case of annuity for life or life  where money be not to be return the case of fountain v Grimes cro James so in  the particular sort of insurance interest or no interest which be only a wager  and not within the statute if in the truth and real substance of the contract  the agreement be for the payment of a principal sum with forbearance and a  high rate then certain it be within the word and no shift or shape can secure  it all colourable sale and colourable exchange be within it no contract  between man and man atkins but may be turn to a shift No contrivance can  exceed the rate of interest it be absolute void all the case that have be cite  prove this that where the treaty be upon a contract for usury and more be take  than the legal interest no evasion can secure it clayton case come on upon  demurrer and confess a corrupt agreement the contingency there next to nothing  and this be fix by evidence atkins er p in mason v Abdi if the person die  within six month and there the man be in good health and the corrupt agreement  plead and no objection to the plead therefore must be take as admit the case  of button v Downham be also on demurrer and the corrupt agreement admit the  rest be all case of high interest take than the act of parliament allow  consider the present case and apply it to the statute what be it on the first  proposal and communication a bargain upon a contingency be there a principal  due No be there a rate for forbearance No it have be object that the witness  say borrow lend and loan and that these expression show it be a contract for  money a loan say Mr Crowle not consume by the use be call commodatum as if I  lend a horse house c it be gratuitous another sort of loan call mutuum as off  wine c here something be take for it but be the present ever propose as a loan  upon usury or as a proposal for principal and forbearance I hope it will not  be hear out of westminsterhall pray advance I a sum of money on this  contingency and then it will be good but if you have say pray tend I a sum of  money on this contingency then it will be bad suppose a action on this bind  can they declare on a corrupt agreement suppose they set out the whole  transaction in plead and conclude it to be do with a corrupt intention can a  jury upon the evidence believe this to be a forbear once of the principal the  very rate of interest depend upon the contingency itself for no man alive can  say what will be the rate of interest if no contingent bargain can be make  upon a life but what be within the statute of usury that will allow will put  it for the future upon clear ground and solid foundation I will next consider  upon what rule of equity they be entitle to be relieve court of equity  administer justice out of a conscientious principle therefore every case must  stand on its own circumstance no fraud here or overreach nor any charge of  that kind in the bill or suggest at the bar no evidence from whence imposition  be presume it must be submit then as between atkins man and man whether sir  Abraham Janssen have be guilty of any misbehaviour they be aware of this on  the other side and therefore have go on another principle that though good in  law and in conscience yet this court ought to set it aside on principle of  politic and make this the foundation of the jurisdiction of this court as  apply to these case but this court will never say they exercise a legislative  authority if a contract be good at law or in conscience this court will not  set it aside as for instance the Southsea company be bull and bear in can not  be set aside till the legislature interpose neither can it prevent or relieve  against lie wager in political matter but a act of parliament in queen whether  time put a stop to it so as to game as for instance fair hazard on the dice it  be a easy matter to show it very detrimental to the public and yet can any  case be cite where the court have relieve against money fair lose before the  late ac of parliament interfere the legislature have make a law that buy  chance before it be know what they be shall be set aside this court can not do  it wretched people slavery be where law be roving nothing more miserable than  that rule of property shall be precarious and uncertain and yet accord to the  argument of the plaintiff counsel though my contract be legal and equitable  too it may be for speculative reason bad this be punish a man who have do no  wrong there be a great many instance allude to but no fix rule produce but it  be say the court will set it aside for reason concern the public it be a  misfortune attend a court of equity that the case be general take in lose note  and sometime by person who do not understand business and very of ten draw  general principle from a case without attend to particular circumstance which  weigh with the court in the determination of these case atkins er p if a  trustee proper and good fide agree with the beneficiary and trust that will  take off the presumption of unfairness if a common prostitute hackney in the  way of man get a contract from a person for her benefit there arise a  presumption she be make a gain it be her daily trade bainham v man vern walker  v perkyns burr but if a mistress only who be true to he the court will not  relieve for she may be presume to be impose upon as well as impose upon see  Whaley v Norton vern bainham v man vern spicer v Hayward Prec Charles  Annandale v Harris p W Cray v rook can tempt Talb hill v Spencer Amb l so in  marriagebrocage bind the relation who take money be bribe and from such a bias  on his mind he can give her the advice he ought as a relation suppose I treat  with the father of a lady for marriage and make a private agreement to give he  a part of the fortune be not this a fraud in the case of sir Abraham Elton he  engage to pay a sum of money on his marriage but as there arise no presumption  of fraud the court will not relieve but decree he to pay it the same as to  sell of place where there be no leave to sell bad because a breach of trust  but if leave to sell it will not be set aside atkins another instance of  gratuity or security to atorneys pen the business set aside the misfortune as  I say before be lie down these as general rule when in the principal case of  this kind Walmsley v booth post vol S c barn Charles Rep S c before Lord  chancellor d of may circumstance have great weight even the character of  Japhet crook have great weight who be more likely to impose than be impose  upon but I never understand that the court have say that a attorney shall take  no gratuity above common fee before a cause be final end as suppose a verdict  obtain by his care and conduct in Woodhouse v Shipley post vol S c before Lord  chancellor the that of march there be no general rule lie down about bind on  account of marriage but the court be of opinion there be a imposition in that  case on the father and decree relief but desire not to be understand to say  what will be the case if such bind have be give by two person Himself law or  emancipate I have reserve for the last what be call postobit it be say they  have relieve on this ground single that no heir shall be allow to make such  contract but I say they relieve on the misbehaviour of the person who seduce a  young man and make a bargain with a filiusfamilias by feed his extravagance he  then cite roof under the head of loan and his comment on the law Macedoniana  to show that the civil law do not extend it to a person emancipate as to the  case cite Lord Nottingham relieve upon evidence Lord keeper north think he go  too far Lord Jeffreys not far enough a man natural temper though ever so able  will give a tincture to his notion of evidence in the case of Bernee v  fairclough and other the car I say Lord Nottingham accord to his own  manuscript from whence I cite it make he pay the principal money borrow before  I will grant the injunction and at the hear relieve because such infamous  trade shall be discourage and in the starchamber be punishable corporal but  his lordship do not relieve the same plaintiff in another cause against George  Pitt though his advantage be three to one because the father be in good health  at that time nor do he put it on the difference between money and ware Lord  Jeffreys lie a different stress on the evidence than Lord Nottingham do and  relieve for this reason and affirm the decree in Twisleton v Griffith  circumstance too have weight do not the defendant stay till the father be ill  do not he take he out of the father hand this be a misbehaviour and have great  weight in Curwin v milner Lord king say he be tie down by precedent and there  before he will not certain have carry it a iota beyond the precedent it be  probable too there be circumstance in that case because there be a double  contingency atkins but it be go a great way to say a man can sell a reversion  Mr atkins er p Spencer be not filiusfamilias shall no man sell a estate in  jointure to his mother shall no man join in sell a remainder?Is it possible to  support this?No it can the case of batty v land vern never contradict I have a  note too of a case where a heir sell a contingency and yet not think  unsaleable in the case of WhiIfield v Q if not WhiIfield v Fausset Ves S c a  heir sell in the lifetime of father and mother there be no dispute but this be  fair obtain and the court decree further assurance by the heir and give leave  to make use of his name a instance with regard to a officer who assign his  future pay come on to be hear and discountenance because it be eat the earn of  his daily pay before he have it see ante court of law allow they good as  contract but not as conveyance a court of equity go far then what be this  public good this rule they so much insist on that no man shall spend above his  annual income how can that be prevent be it in human nature he will spend it  man of the best sense have do it where will be the public utility where the  encouragement to industry will the court consider every man as a lunatic who  exceed his income another end perhaps to lock up property for another age be  that desirable will it procure money on easy term it be direct the contrary  and as clear as any proposition in Euclid and I refer they to Mr lock in the  treatise before mention if Mr Spencer can not have it on these term with any  security to the defendant he must have distress he much more by take pledge of  plate it be extreme material that the court shall not determine it upon this  last ground whatever may be their opinion as to the validity of the contract  in law or the concionableness of it in equity June the d Mr Noel in reply the  general question be whether the fact in the present case afford a reasonable  ground for relief in a court of equity it be admit to be a matter of great  moment first in respect to preserve family from ruin under pretence of relieve  present want I will show that the court may relieve without infringe the  liberty of mankind or hurt property No man have a right in his own property  beyond the limit of conscience man be bind to use their own so as not to hurt  or prejudice another I set out with this principle early it be lie down in the  case of Bosanquet v Dashwood Cas in Eq in the time of Lord Talbot the court  may relieve where the case be not strict illegal upon rule draw from the case  of nature and reason it be allow no write law can possible take in atkins a  case of this kind as they can possible foresee every emergency by politic Mr  solicitorgeneral must mean only public utility I will consider it first on the  statute of usury and hope to show it be clear within it usury within the  statute be secure a high premium of gain than the statute allow they object  the statute mean where the principal lend be to be repay but her it be double  the principal to be pay they will establish likewise that it must be a  communication of borrow and lend of money and that there be no communication  here on the one part for borrow or for lend on the other the term upon which  the defendant do it can make no alteration for if the original proceed be for  borrow and tend term can make it cease to be a communication for money have  not every case lie it down that there must be no communication for money and  though the penalty be severe yet the statute must be construe liberal then  have care be take here that there be no communication for money they have  attempt to lie down another rule that where the principal be risk it be not  usurious in Burton case   hold to be usury notwithstanding the risk and  nothing say there of the greatness smallness or extent of the risk a principle  indeed lie down in the book that it be not usury if any uncertain gain and  leave to the honour of the person if he will pay more than the legal interest  but if the lender tie down the borrower to pay more hoc be full of vice atkins  er p the statute go upon another principle that contingent bargain be bad  reserve more than legal interest unless for convenience of trade and commerce  and reason of public utility sergeant Hawkin in his plea of the crown when he  speak of the case on usury lie it down it be usury notwithstanding the risk  and make no distinction whether great or small in the present case Mr Spencer  absolute be bind to pay and can not be relieve against the double payment at  any time principle of property be to be draw from the general purview of the  statute and such as be most likely to meet with the mischief meet with it then  if a sum stipulate to be lend be it with or without risk exceed the legal bind  let it be construe within the statute a life of thirty against seventyeight be  too strong and look too much like a shift they be force by this great  inequality to have recourse to another thing that the young life be break and  therefore the old a match for it Mr Backwell do not remember a syllable say  about the goodness atkins or badness of Mr Spencer constitution at the time of  the application to the defendant nor do he say in his answer that he refuse to  lend the money but that he do it on weigh and consider the proposal what be  the material result of this why that upon inquiry he do not ld the report of  Mr Spencer decline health true and therefore the risk not be so great as at  first imagine it determine he to comply with the proposal the effect of he  intemperance as appear by evidence sufficient remove for his last relief for a  particular disorder be in six year before this contract and then the witness  say he be of a strong robust constitution loftin and Thompson say he be of a  sound strong health and therefore likely to outlive the duchess of Marlborough  these be their own witness who be connect with he and in the service of his  family another reason they urge be a person must be calculate how much  interest they lose in the mean time while the contingency be depend very hard  drgiven for they compute interest upon interest prmium for insurance interest  upon that and interest too upon that interest and so round the compass and yet  after all this labour fall short some hundred pound of the gain the defendant  make I will not desire a strong proof of the usuriousness of this contract  than the hard shift they be put to in order to save it out of the statute  judge by event always understand to be the worst rule of judge the only proper  way what be the chance at the time and Lord MounIfort say the duchess of  Marlborough life be not worth more than three year purchase and therefore her  live six year be of no weight it be say no imposition be charm by the bill the  contract be charge to be usurious and charge to be exorbitant and that the  defendant take advantage of Mr Spencer necessity therefore what do they mean  by say we have not charge imposition if not in term yet necessary imply as to  Mr Spencer great property he be only tenant or life as to his personal estate  he be not in effect and substance Himself law because his fear of blow up his  hope in the duchess of Marlborough prevent he from make use of the personal  estate it be then say he want money on a just cause for pay debt and that his  best friend will have advice this method nay your lordship will have do it  Lord chancellor I will relieve you from this part of the argument I will not  for my own part have advice it in any circumstance Mr Spencer be bind to pay  it even if the duchess do not leave he a shilling what will have be his  condition then be it not clear he stake his ruin on this engagement No mention  make that he be indebt to tradesman at the time the money be borrow his own  private justice may indeed lead he to apply the money in this manner but it be  atkins no sort of excuse to the defendant because he have not this view in  advance it the defendant be engage to keep it a secret on the principle of Mr  Spencer dependence on the duchess of Marlborough this therefore be put he  under atkins er p fetter No body pretend that Mr Spencer do not know the term  or ignorant that he be only and therefore it be his apprehension of the  duchess that subdue he to the imposition I do not dispute but that a son may  dispose of a reversion but that be not the case here it be the hard severe  term we object to and in the judgement of a court of equity be a fraud where  the relief do not infringe on the just right of mankind wiseman case a risk on  the death of a uncle here on the death of a grandmother therefore why not  strong it be admit argument of public mischief be laudable adopt into this  court be not this a grow evil all mankind feel it as to the transaction which  be subsequent to the bargain be a confirmation the defendant counsel rely on  coal v Gibbons wms but the executor here do the duty much better by endeavour  to be relieve the next case standard v Medcalf turn strong against they for  though the house of lord affirm the decree and by that confirm the will yet if  she recover her sense do it without prejudice to any alteration she may make  in that disposition therefore this not proper a confirmation of the settlement  kr Spencer acknowledge the debt that he can not pay it but will execute a new  security and pay the defendant at time show his necessity and that he have no  prospect of do it but by indulgence the new bind produce by the defendant  antedate to the day of the duchess of Marlborough death but charge by the bill  that it be to be pay in a month after the death of t duchess and though by his  answer he swear he can be quite exact as to the time of payment agree yet in  order to gain more interest carry it back to the day of her death if the court  can relieve where it be double the sum for illegality they can relieve if five  time the sum and therefore the argument of public mischief must have great  weight as no man can say what bind may be set to extravagant contract of this  kind unless it meet with a cheek from this court in the manner we have pray by  our bill the cause be order to stand over till Michaelmas term and in the mean  time a search direct to be make after the original bind or if that can be find  a copy of it atkins February the that the cause stand for judgement Lord  chancellor in court assist by Lord chief justice lee the master of the roll  and Mr justice Burnett Mr justice Burnett the counsel for the plaintiff in  this cause have insist principal upon three thing first that the original  contract be usurious and contrary to the statute of usury second that suppose  it be not a usurious contract it be such a undue advantage take of a man  necessity upon a expectance that this court will relieve against it as a  unconscionable bargain three that the new security ought to be consider in the  same light as the old and a continuation of the fraud on the part of the  defendant it be insist this be a mere contingent bargain and in the nature of  a wager only no circumstance of a distress heir seduce from parental  government no fraud or imposition and therefore not warrant by former  precedent to set this contract aside and that if the court can have relieve on  the original agreement yet can consistent with the rule of equity do it when  the party have voluntary take upon himself to confirm it as to the first  question whether a loan of pound to be pay pound on the death of the duchess  of Marlborough in the lifetime of Mr Spencer be such a usurious contract as be  within the statute or only a mere casual contingent bargain and not usurious  this court have adopt the use of the word loan in case of bottomry as well as  in common money transaction and therefore shall make use of that term likewise  to make this contract usurious it must be either because it be within the  express word or a evasion or shift to keep out of the statute it will be  misspending time to give the opinion of civilian and canonist upon the head of  usury because trade and commerce have make great alteration with regard to  money Lord coke in his d Inst say at the time of the statute of Merton and  atkins er p also before the conquest it be not lawful for Christian to take  any usury as appear by the law of saint Edward c and Glanville and other  ancient author and record and no usury be then permit but by the jews only in  Lord coke d Inst he say that by the statute of h and Elizabeth all former act  atkins statute and law ordain and make for the avoid or punishment of usury be  make void and of none effect so at this day neither the commonlaw nor any  statute be in force but only the statute of the h Elizabeth and James Hardr e  contra for per Lord chief baron hale Jewish usury be prohibit at commonlaw be  pound per cent and more but no other it must be agree then nothing be legal  usurious but what be prohibit by the statute and the material one be the  statute of the h c sect No person by way of any corrupt bargain loan exchange  chevisance shift or interest of any ware or other thing or by any other  deceiIful way shall take in gain for the forbearance of one year for his money  or other thing that shall be due for the same ware or other thing above pound  in the hundred and the statute of the Ann ch vary in nothing from the former  act but the reduce of legal interest for in the penal clause all the word of  the statute of h be take in so that the case determine on the first of those  statute be look upon as authority upon all the subsequent statute whatever  shift be use for the forbearance or give day of payment will make a agreement  usurious and be by a court and jury esteem a colour only suppose a man  purchase a annuity at ever such a under price if the bargain be real for a  annuity it be not usury if on the foot of borrow and lend money it be  otherwise so Richard v brown Cowp for if the court be of opinion the annuity  be not the real contract but a method of pay more money for the reward or  interest than the law allow it be a contrivance that shall not avoid the  statute by give the avarice of one kind of man a opportunity of prey on the  necessity of another Leon lev king v Drury Noy cro Elizabeth a bargain on a  mere contingency where the reward be give for the risk and not for the  forbearance be not usurious for how can it be say with any propriety to be for  the forbearance when the day of payment itself may never come if money be lend  to be pay with more than legal interest as for instance in the case of Clayton    where it be agree between the plaintiff and defendant on the that of  December that the plaintiff shall lend the defendant pound to be repay the  first of June follow and that the plaintiff shall have pound for the  forbearance if the plain tiffs son shall then be live and if he die then to re  pay but pound of the principal money this may be usurious for if there be a  borrow of money and a communication for interest the devise to have go beyond  the rate of pound per cent say the court be fraudulent and within the statute  otherwise the statute will be vain for he may as well have make the atkins  condition that if person or any of they shall be live at the day c then he  shall have pound he then mention several of the most material case on this  point and which be chief rely on by the plaintiff counsel to make this a  usurious contract and conclude with mason v Abdi salk and lie a stress upon  the last reason of the resolution of the court because there be a express  provision in the bind to have the principal again Rep and and the same case in  more Carth comb shower the slightness or reality of the risk seem to be the  only guide rule that direct the court in the case of Bedingfield v Ashley cro  Elizabeth there a deliver to b pound who by indenture covenant with a to pay  to every one of a s child which then be and shall be live at ten year end  pound a have then five daughter it be not usury say the court but a mere  casual bargain but if he have be to pay pound at ten year end if any be live  then it will be a great doubt or if it have be to pay pound if any be live at  one or two year end that have be usury because of the probability that one  will continue alive for so short a lime but in ten year be many alteration the  case of long v wharton Keble though ill report seem to be good law for there  in error upon a judgement in debt upon obligation to pay pound on marriage of  the daughter and if either plaintiff or defendant die before nothing the  defendant plead the statute of usury and that this be for the loan of pound  before atkins er p deliver to which plaintiff demurrer and per our this be  such a kind of casual bargain as bottomry and the judgement affirm I shall be  glad to know why a bind on a man life be not as much a adventure as on the  bottom of a ship a ship may sink the day after the bargain be make a man may  die the next day after his life be insure but whatever favour court may show  in contract beneficial to commerce they will not establish contract of another  kind to the prejudice of the statute there can be no forbearance for what may  never be due as the ship may never return so that it be mere a contract upon  the risk but suppose a contract be make for a ship return to Newcastle from  London or to Dover from Calais at a season of the year when there be little or  no danger will not the court look on this as colourable and a mere evasion of  the statute and in the case of joy v ken in Hardr report it appear very plain  from what the court do there that even a bottomry bind may be a evasion of the  statute as well as any other contract or Lord chief justice hale will never  have send it to trial the first case of bottomry be sharp v Huswell cro James  there the rule that govern the court be the real risk of the principal and the  hazard the lender run of have less than the interest which the law allow and  possible neither principal nor interest atkins Mr justice dodderidge in Robert  v Tremaine cro James make very proper distinction between contract usurious  and not usurious Mr attorney general in his argument for the defendant have  state these distinction as to what contract be usurious as to contract not  usurious if I lend to one pound for two year on condition to pay for the loan  thereof pound but if he pay the principal at the year end that he shall pay  nothing for interest this be not usury for the party have his election and may  pay it at the first be year end and so discharge himself in the case of soam v  Gleon Siderf debt upon obligation for pound in which there be a condition that  if a particular ship go to Surat in t east Indies and return safe to London or  if the owner or the good return safe that then the defendant pay to the  plaintiff pound for each pound but if the ship c be lose by unavoidable  casualty of sea fire or enemy to be prove by sufficient testimony then the  plaintiff to have nothing the question be if this contract be usurious within  the statute as defendant have plead it resolve per cur this be not usury  within the statute but a good bottomry contract and the chief justice  Bridgeman take a difference between a bargain and a loan for where there be a  plain bargain as here and the principal hazard this can be within the statute  of usury for there be apparent danger of the sea fire and enemy between this  and the east Indies which endanger the loss of the principal and such contract  call bottomry tend to the increase of trade and it be by this several orphan  and widow live in the port town of this realm but otherwise it be of a loan  where the principal be not hazard judgement per totan curian that this be not  usurious I can therefore but be of opinion that this be not a contract  original usurious but a contingent bargain and find on the risk only the  second question be that suppose it be not a usurious bargain yet whether it be  not such a undue advantage take of a man necessity upon a expectance that this  court will relieve against it as unconscionable if it be necessary to give a  express opinion on this point I shall be under great difficulty but when the  case come to be consider may be relieve from that be necessity it will be too  hard to say that a heir or expectant shall not borrow money let his necessity  be ever so great or which be the same thing that the person advance shall not  be suffer to have a extraordinary premium for a extraordinary risk on the  other hand it may be dangerous to give a sanction to such bargain I will state  the argument of plaintiff counsel and then show the court be under no  necessity to determine this point and I be sure no court will Willing give a  opinion that may be make a ill use of out of the court first say they it make  two of the worst passion in the human breast meet avarice on the one side and  crave appetite on the other atkins second a man shall be provide a liberal  supply for a son or a near relation as he imagine when he be at the same time  in fact lie up for perhaps atkins er p twenty moneylenders and be thereby  delude to give away to stranger what he intend for his own family the supply  the necessity of young heir for lucre have be a grow practice and the court  from time to time have extend the remedy to meet the mischief not v hill vern  be one of the first case Lord Nottinqham relieve on the gross unreasonableness  of the bargain which imply no man cold be draw into it but by imposition Lord  keeper north reverse this decree because there do not appear any express  imposition afterward Lord Jeffreys confirm the decree make b that Lord  Nottingham declare he take hill purchase to be a unrighteous bargain in the  beginning and that nothing which happen afterward can help it the court in  process of time extend the remedy where the necessity alone of the person  borrow induce the contract the first case of that kind be Bernee v Pitt vern  Lord Nottingham when it come before he relieve against nothing but the penalty  in h t Lord Jeffreys hold it a unconscionable bargain discharge Lord  nottingham decree and order the defendant to refund to the plaintiff all the  money he have receive of he except the pound original lend and the interest  for the same in Twisleton v Griffith wms there be mark enough of a imposition  to warrant relief on that foot but Lord Cowper choose rather to establish it  on general principle to prevent a grow practice of devour a heir and Lord  Jefireys decree in Bernee v Pitt stand show that every one think the same be  just and that there be therefore no attempt in parliament to reverse it his  lordship also take in the whole objection that at this rate a heir can not  without difficulty sell a reversion and say he see no inconvenience in the  objection for this may force a heir to go home and submit to his father or to  bite on the bridle and endure some hardship and in the mean time he may grow  wise and be reclaim in Curwin v milner that of June wms marginal note Lord  king relieve but say if the thing have be new he will not have go so far but  think himself bind by precedent these be the case principal rely on by the  plaintiff counsel it be insist on the other side that none of these case bear  any similitude with the present for here be no practice of fraud and  imposition Mr Spencer out of parental authority and not in bad circumstance  for he have pound ayear at that time and say too the risk here be equal and  not as in Curwin v milner where the contingency be double to pay pound for the  pound lend if defendant survive his father or fatherinlaw the offer here be  send by the borrower and accept on his term therefore it be the borrower own  seek this too be so equitable a bargain that if the court will enter into the  just proportion atkins or calculation of such a bargain and the usual rate for  insurance of principal interest and premium it will appear to a demonstration  that if the duchess of Marlborough have live half a year long the defendant  will have be a loser and also it be not yet lie down that heir shall not  borrow on the expectance and that a contract must either stand or fall upon  its reasonableness or unreasonableness and that will be a sufficient terror to  the lender and indeed it may be difficult to give a opinion on this for it may  be think too rigid to say that a heir shall not borrow upon a expectance as  some person be so niggardly and spare to their child that a poor heir may  starve in the desert with the land of Canaan in his view if lie can not  relieve himself this way Mr Spencer beside have take away the argument of  necessity by consider the whole himself and in the free and most voluntary  manner imaginable have confirm the contract and may be therefore say to have  establish it with his eye open which bring I to the three question whether the  new security shall be consider in the same light with the old and a  continuation of the fraud post note I know of no case where this court though  they may have relieve in the original contract have relieve against the  confirmation of it where there be no pretence of fraud or imposition in obtain  it but if there be any thing of that complexion in the confirmation there  indeed it be consider only as a continuation of the first fraud and of this  kind be the earl of Ardglasse v Muschamp vern and wiseman v beak vern where  the court look on it as a mere contrivance and colourable proceed and make use  of a very strong expression it be a double hatch the cheat these be case hear  before the lord commissioner atkins er p but can the confirmation here be say  to be obtain by force imposition or contrivance the defendant be far from be  press for his money even after the death of the duchess if Marlborough for e  stay from October to December before the old contract be confirm and though  there be no case to warrant relieve against such a confirmation yet there be a  strong case to support it coal v Gibbons and other and Martin v coal and other  wms where Lord Talbot admit that have all depend on the first assignment he  will have set it aside as be a unconscionable advantage make of a necessitous  man but when the person after be full apprise of every thing choose to execute  a deed of confirmation of his former assignment and not the least fraud or  surprise have appear on the part of the defendant it be he say too much for  any court to set all this aside at the bottom of this case there be another  that go upon the same principle where Lord Cowper say that after the plaintiff  have cool and without any pretence of fear or duress enter into a bind to the  defendant he have thereby ascertain the damage and ought not to be relieve  atkins upon the whole therefore submit it to your lordship that there be  nothing usurious in this contract which can warrant set it aside upon the  statute and suppose any thing unconscionable in the thing original yet Mr  Spencer take upon he voluntary to confirm it I can help think it will be too  much for a court of equity to overturn such a bargain and therefore my advice  be to relieve only against the penalty of the bind the master of the roll sir  John strange the first question be whether the defendant original advance  pound in the manner depose by Mr Backwell and admit by himself in his answer  and the bind take upon it be to be consider as usurious and void in law the  second question S if the bind be not within the statute of usury whether the  baggain be of such a nature as will entitle the party to relief on the  circumstance of this case in a court of equity the three question be whether  what appear to have be do by Mr Spencer after the death the duchess of  Marlborough will vary the case or influence the determination of this court I  agree with the reverend and learned judge that the contract be not within the  statute of usury the that of Q whether cap appear to I to be calculate for  such loan where two principal circumstance must concur first where there be a  agreement for payment at a future day and second where the premium for  forbearance be great than the statute allow in the present case if the  contingency happen one way the whole money be lose and therefore may be proper  call a wager between the party whether Mr Spencer or the duchess of  Marlborough die first it be say if the design of the party be one shall borrow  and the other lend pound the colour or shift to evadeathe statute with not  avail but whether a agreement be usurious or not maybe determine two way first  on the verdict of a jury on a plea of a corrupt agreement second by the court  be exercise their own judgement on the particular circumstance of the case but  on a to know facias against the executor of Mr Spencer no action can be  maintain for the bind be lose or destroy can not be plead with a profert hic  in curian and it be so laiddown in the case of foot and other against Jones  easter term Geo see anon post vol I the other method of the court be exercise  their own judgement be still open as in the case of Robert v Tremaine clayton  case Rep show what sort of shift they must be that a court will consider as a  evasion of the statute of usury comb show what be what be not hazard and among  other thing Lord chief justice holt say die within half a year be atkins no  hazard but if there be a wager between two it be not usury for the bargain be  good fide and so lie down in several of the old case the present case be full  before the court in order to make it usurious it must atkins er p be determine  to be a shift to get a exorbitant premium and colourable only to evadeathe  statute now it appear to I to be a mere bargain on chance a wager which  outlive the other Mr Spencer or the duchess of Marlborough some stress have be  lie by the plaintiff counsel on the word lend but I think that conclude  nothing as to the nature of the contract itself but be a play on word only  every bargain of this kind be a loan even bottomry contract be so and express  call loan by act of parliament therefore it be not the expression but the  nature and intent of the agreement which must determine whether this contract  be a simple loan or risk to be sure one reason why so large a premium have be  allow on bottomry bind as out of regard to commerce but the principal reason  must have be that they be not within the statute of usury because the whole  money be in hazard I be clear of opinion therefore on the first point the bind  be not usurious and consequent not void in law t second question be if the  bind be not within the statute of usury whether the bargain be of such a  nature as will entitle the party to relief on the circumstance of the case in  a court of equity my advice here will be ground entire on what be do after the  death of the duchess of Marlborough and therefore shall offer nothing on this  head which I will have at all consider as a absolute determination and yet see  no reason to quarrel with the principal case that have be cite because they do  not come up to the present nor will be understand to abate of the force of  they in any respect there be many circumstance on the part of the defendant  that put his case in a favourable light there be no intention of fraud in he  the scheme come from Mr Spencer not from he the money be advance on the  borrower own term after it have be refuse by other and not think a good  bargain accord to the rule of calculation of chance but still I think there  may be case where this court will interpose to prevent improvident person from  ruin themselves before the expectance fall into possession though no express  fraud or imposition appear every serious and considerate person must see the  sad necessity there be for the court be keep a strict hand over agreement of  this sort but then they must still depend on their particular circumstance and  it be not at all adviseable to give too particular atkins reason in  determination of such case the three question be whether what appear to have  be do by Mr Spencer after the death f the duchess of Marlborough will vary the  case or influence the deter mination of this court post note and I be of  opinion the plaintiff be entitle to no other relief than in respect of the  penalty on payment of pound and interest upon it from the death of the duchess  of Marlborough I will now take a view of the different situation of Mr Spencer  in and in notwithstanding he have a large income he be involve in great  difficulty and extreme embarrass how to pay his creditor he be oblige to  mortgage his expectation from the duchess which be a dangerous experiment as  it may have defeat they entire but in upon the death of the duchess he come  into the possession of so great a income as enable he to discharge his debt  soon all he desire for do it be time and he have it it be not material who  take the first step towards the new agreement two month elapse before it be  absolute complete and loftin Mr Spencer agent write to the defendant by his  master order the saint of October to bring a bind and judgement there be not  the least circumstance of undue behaviour in the defendant or force upon Mr  Spencer and it appear in evidence that Mr Spencer fix design be to pay off the  whole as soon as he can with a preference to the defendant who Mr Spencer  himself say have treat he as a gentleman in consequence of this intention he  pay the defendant pound at one time and a second pound at another and there be  frequent declaration of Mr Spencer prove of his be extreme well satisfy with  this transaction from first to last but perhaps it may be say Mr Spencer be  not full apprise of the nature of the bargain and that he may have be relieve  on the first bind Even this circumstance be not want in the present case for  Loftins deposition atkins er p be that on ask Mr Spencer in what security he  be to give sir Abraham Janssen he reply Janssen much doubt if a bind will be  valid at law and therefore seem incline rather to take a note or memorandum  for it only this show Mr Spencer be apprise d of the nature of this contract  and the doubIfulness of its validity in point of Mr Spencer continue in the  same mind from the beginning to his death and to the last show a resolution to  confirm the bargain contract of a post obit nature in general be by no mean to  be encourage be of a dangerous tendency a public mischief and not to be  countenance in a court of equity but I ground my advice only on the particular  circumstance of this case and think there may be relief give in other case  where such strong circumstance do not concur I be very far from blame the  plaintiff for submit the case to the consideration of the court but think they  do extreme atkins right and my humble advice upon the whole be to relieve only  on the penalty of the bind Lord chief justice lee the first point be as to the  nature of usury consider either accord to the commonlaw divine law civil law  or canon law it will be misspending time to mention a that thing on this head  because the idea of usury in this country be full fix and the premium for  forbearance of money settle by statute in and and mason v Abdi comb and Carth  the true distinction be take between a colourable and a fair and absolute  hazard of the principal money if of the former sort the bargain be usurious if  of the latter it be out if the statute the material and true reason why  bottomry bind be not usurious be because they be not within the statute of  usury and reason of trade be the only inducement to the court to countenance  this kind of contract the defendant contract can be consider only as a real  hazard and it do appear to I very clear on look into all the book that court  of law have always hold where the profit the lender be to have be for the  hazard and not for the forbearance the contract be not usurious in Molloy de  jure maritime lib cap sect he say most certain it be that the great the danger  be if there be a real adventure the great may the profit be of the money  advance and so have the same be the opinion of the civilian and likewise some  divine though other seem to be of opinion that any profit or advantage ought  not to be make of money so lend no more than those that be advance on simple  loan and on the peril of the borrower however all or most of the trade nation  of Christendom do at this day allow of the same as a matter most reasonable on  account of the contingency or hazard that I lender run and therefore such  money may be advance several way and a profit may arise so that there run a  peril on the lender I shall say no more on this head but on the second point  submit to your lordship whether it will not be worthwhile for court of equity  to consider how they may prevent bargain where a lender run away with double  what he advance and to bring they within the measure prescribe by the  legislature the legal premium for money I speak of the second point in this  general manner because what Mr Spencer have do with regard to the confirmation  have take away what may have be object to the bargain be be unconscionable as  it stand original now ifthe contract at first shall appear to be attend with  such circumstance as may induce a court of equity to rescind it entire or  moderate it only yet the new agreement will serve to give it a strength which  it have not before I roof fol sec entitle of the prohibition to lend money to  son live under the paternal jurisdiction atkins the lend of money to son who  be still under the power and tuition of their father be to they a occasion of  debauchery be one of the pernicious effect of usury and it be by reason of the  facility of borrow money of usurer that the corruption of the manner oh f the  youth in Rome be come to such a height and attend with such consequence that  to restrain this disorder a regulation be make by a decree of the senate call  the Macedonian decree from the name of the usurer who give occasion to it by  which all obligation of son live under the parental jurisdiction contract by  the loan of money be declare null without any distinction but if any creditor  have lend money for a cause that be just and reasonable sufficient to support  the equity of the obligation it be by a favourable interpretation of the  decree of the senate that this case be to be except from the general  prohibition accord to the quality of the use to which the son put the money  which he have borrow atkins er p the defendant have this exception in his  favour for the contract be make in order to empower Mr Spencer to pay just  debt to his tradesman and apply accord it appear by the authority of coal v  Martin in wms a subsequent deliberate act where the party be full inform of  every thing make the bargain good in the case of Cann v Cann wms Lord  Macclesfield make use of these expression indeed if the party release be  ignorant of his right or if his right be conceal from he by the person to who  the release be make these will be good reason for the set aside of the release  but solemn conveyance release and agreement make by the party be not slight to  be blow off and set aside but here the right be not conceal from Mr Spencer  for the subsequent agreement appear to be make deliberate there be no kind of  fraud in any one around stance attend it and therefore I concur in offer my  advice in the same way with the master of the roll and Mr justice burnet post  note Lord chancellor before I proceed it be proper to mention that Lord chief  justice will be ill have furnish I with his reason by letter and authorize I  to say he concur in opinion with I in the three point that be make in the  cause in the next place the able assistance I have have in this cause make my  task much easy and unless the novelty of the case call upon I to give my  reason I may very well be excuse from say any thing on a subject that have be  so full and learned discuss already and if can have foresee on what point this  matter will have turn shall have spare the learned judge their trouble the  first point whether the first bind be void in law by virtue of the statute of  usury atkins the second point if it be valid in law whether it be contrary to  conscience and relievable upon any head or principle of equity the three point  be whether the new security give by Mr Spencer after the death of the duchess  of Marlborough amount to a confirmation and be sufficient to bar the plaintiff  of relief the first be a mere question of law on the construction of the  statute and therefore to be consider exact in the same light as in a court of  commonlaw and as if a action have be bring on the bind my lord the judge be  very clear in their opinion the bind be not usurious and if I have be doubIful  myself in this point I shall have think notwithstanding I be as much bind by  their judgement now as if have send it to be try at law but I have no doubt at  all of this contract be be out of the statute of usury and do not intend to go  through the authority on this head as they have be full observe upon already  it be a plain fair wager and not within the statute because no loan Lamego v  gold burr but if a loan it have be argue for the plaintiff that a agreement to  receive more than principal and legal interest on any event be usurious and  contrary to the statute I roof title the civil law have very nice distinction  on commodatum and mutuum as to commodatum it be understand in the same sense  the law of England understand it but by mutuum the civilian mean a loan where  the thing lend be to be restore in noble birth when any thing be to be pay for  hire it come under the head of renting contraction the commonlaw have not  adopt these nice distinction on action for money lend it be express by  mutually data accommodate Even money on a risk be call a loan as in the case  of a bottomry bind the h ch the statute contain a general prohibition of all  usury but say without condition and adventure from hence it appear they  understand a advantage may be insert in a loan of money and therefore the  insert of a contingency will not prevent its be a loan if there have be a loan  of money and a insertion of a contingency which give a high rate of interest  than the statute allow and the contingency go to the interest only though real  and not colourable and notwithstanding it be a hazard yet it have be heldto be  usurious see Morse v Wilson durn east where the contingency have relate to  both principal and interest and a high rate of interest take than allow by  statute the court have there inquire whether it be colourable or not and  within the distinction take in the case of Robert v Tremaine by Mr justice  dodderidge first say he if I lend pound to have pound at the year end upon a  casualty if the casualty go to the interest only and not to the principal it  be usury for the party atkins er p be sure to have the principal again come  what will come but if the principal and interest both be in hazard it be not  usury second if secure both interest and principal if it be at the will of the  party who be to pay it it be no usury as if lend to one pound for two year to  pay for the loan thereof pound and if he pay the principal at the year end he  shall pay atkins nothing for interest this be not usury for the party have his  election and may pay it at the first year end and so discharge himself  although this contract have be call a loan yet it be mere a case of chance and  I agree with my lord the judge the sound and fundamental reason for admit  bottomry bargain be their be out of the statute of usury for consideration of  commerce can support they if hold to be within the statute the counsel for the  plaintiff by way of objection lie great stress on dictum of judge that  particular care must be take there be no communication for the loan of money  therefore say they this be original a agreement for borrow on one part and  lend on the other be usurious a very good answer have be already give to this  that the real and substantial foundation of the agreement must be consider and  not mere expression only but I will add to it that loan upon a real and fair  contingency can be say to be usurious any more than in the case of bottomry  bind and the very state of the fact on the purchase of a annuity or on the  sale of good will prove the observation a man may purchase a annuity on as low  term as he can but if he set out at first with borrow a sum of money and then  turn it into the shape of a annuity afterward this be a shift and a evasion to  avoid the statute ante Richard V brown Cowp it be lawful likewise for a man to  sell his good as dear as he can in a fair way of sale but if a apply to b to  lend money and offer to allow more than the legal interest and b say no I will  not agree to your proposal on these term but I will give you such a quantity  of good and you shall pay I so much at a future time for they beyond the price  I now fix and then charge a extravagant profit this be a shift to get more  than the legal interest and be usurious on the second head I shall follow the  prudent example of Mr justice burnet by not give any direct opinion but at the  same time the argument in this cause have make it necessary to say something  No wise and good man will assert such bargain deserve encouragement for as  they be productive of prodigality on the one hand so do they beget extortion  on the other want and avarice always generate one another and these contract  may be true say to be vine time this court can certain relieve against all  kind and species of fraud fraud may either be dolus evil a clear and express  fraud or fraud may arise from circumstance and the necessity of the person at  the time there be also hard unconscionable bargain which have be construe  fraudulent and there be instance where even the commonlaw have relieve for  this reason express Barnardiston v Lingood post vol gwyne v Heaton bro Charles  Rep say vide Willis v Jernegan post vol atkins James v Morgan lev be a case of  this kind assumpsit to pay for a horse a barley corn a nail and double every  nail and aver that there be nail in the shoe of the horse which double each  nail come to quarter of barley and upon non assumpsit plead the cause be try  before Mr justice hide at Hereford he direct the jury to give the value of the  horse in damage be pound and so they do and it be afterward move in arrest of  judgement upon a slip in the declaration which be overrule and judgement give  for the plaintiff but this court will relieve against presumptive fraud so  that equity go further than the rule of law for there fraud must be prove and  not presume only to take a advantage of another man necessity be equal bad as  take advantage of his weakness and in such situation as incapable of make the  right use of his reason as in the other in the marriage brocage bind one of  the party to the marriage only be deceive and defraud and not either of the  party to the marriagebrocage bind and yet the court have relieve for they hold  it infect by the fraud and relieve for the sake of the public as a general  mischief atkins er p in like manner where a debtor enter into a agreement with  a particular creditor for a composition of S in the pound provide the rest of  the creditor agree and this creditor at the same time make a private  clandestine agreement for his whole debt and though no particular fraud to the  debtor yet as it be a fraud on the creditor in general who enter into the  agreement on a supposition the composition will be equal to they all the court  have relieve Surrelt v spiller ante Ves see Middleton v Onslow p W so in  bargain to procure office neither of the party be defraud or unapprised of the  term but it serve to introduce unworthy object into public office and  therefore for the sake of the public the bargain be rescind political argument  in the full sense of the word as they concern the government of a nation must  and have always be of great weight in the consideration of this court and  though there may be no dolus evil in contract as to other person yet if the  rest of mankind be concern as well as the party it may proper be say that it  regard the public utility in the case before this court there have be sometime  proof of actual fraud such as Bernee v Pitt the earl of Ardglass v Muschamp  and several other in these case too fraud have be constant presume or infer  from circumstance and condition of party weakness and necessity on one side  and extortion and avarice on the other and mere from the intrinsic  unconstionableness of he bargain the next kind of deceit be upon other person  who be not party as ancestor and father and the heir and expectant atkins  where by contrivance a heir or a son have be keep from disclose his affair to  a father or other relation and by that mean prevent from be set right and  undeceive and the ancestor or father have likewise be seduce to leave their  fortune to be divide among a set of dangerous person and common adventurer  that there be unconsionnableness in the very nature of the bargain the hawk it  about show that there be also a deceit and delusion on the duchess of  Marlborough who stand in loco parent appear from the evidence of Mr Backwell  who swear it be intend to be careful conceal from her and that she shall never  hear of it and yet I do admit more circumstance appear here in favour of the  defendant than have concur in the rest of the case Mr Spencer be year of age  there be no foundation to say he be a weak man nor any charge in the bill of  that kind the bargain be unsought for by that defendant and entire proceed  from the borrower who be of a break constitution the money too be borrow for a  honest purpose to pay debt and yet I will by no mean have it understand that  this intention alone will in all case sanctify such a bargain in those case  where it have be insert in the defeazance that the lender shall lose his money  if the borrower die before father or grandfather I always think there be good  sense in the word of the court upon those clause that this do not difference  the case in reason at all for in these case if the tenant in tail die live the  father the debt will be lose oh f course and therefore express it particular  in the defeazance make the bargain the worse as be do to colour a bargain that  appear to the lender himself unconscionable Mr attorney general say that it be  a vain and wile imagination to think any general law can prevent prodigality  and extravagance and yet the lawmaker in ancient Rome though they be nit so  weak as not to know that law to restrain prodigal may be useless in many  instance think it necessary still to put a prodigal under the care of a  curator and also make their famous decree of the Senate Macedonianum mere with  a view to prevent it whatever may be call a legislative authority in this  court utter disclaim but so far as the court have already go in case so far as  Lord Nottingham Lord Cowper Lord king and Lord Talbot have go in the several  case before they I think myself under a indispensable obligation of follow I  have spend so much time principal with this view that the work of this day may  not be misunderstand as if the court have depart from their former precedent  and establish a new one for unconscionable bargain post obit bargain and both  together annuity have get their broker and factor about this town and I will  Willing shut the door against such person and be not c V atkins er p ashamed  to own I shall always be ready consistent with the rule of equity to correct  such enormity the three point be whether the new security give by Mr Spencer  after the death of the duchess of Marlborough amount to a confirmation and be  sufficient to bar the plaintiff of relief atkins if the first bind have be  void at law no new agreement will have make it better the original corruption  will have infect it throughout but as bargain that be not cognisable at law be  proper the subject of this court be consideration new agreement and new term  may confirm what may other wise have admit a question as to the fairness of it  Stapleton v Stapleton ante in crow v Ballard bro Charles Rep Lord Thurlow thus  express himself upon the subject of confirmation if a gentleman of rank  fortune and honour under age in distress or otherwise give a bind and  afterward conceive that he have make a hard bargain and know that the bind be  bad will give a new bind that will maintain the possession of the right of the  holder of the bind and this act shall be say to be a confirmation but not any  act do under the influence of the former transaction and the opinion that that  bind be good vide etian Deloraine v brown bro Charles Rep the evidence seem to  prove clear that there be no compulsion on Mr Spencer at this time his  necessity be entire over for pound ayear be by the disposition in the duchess  will add to pound ayear he have before so that a little more than a three of  his annual income will have discharge the defendant whole demand in the next  place the duchess be remove out of the way the danger of her come to the  knowledge of it be go so that he be deliver from that circumstance likewise  and further there be no ancestor or relation live on who any deceit or  delusion can be practice Loftins evidence of Mr Spencer declaration as to Mr  janssen doubt whether the first contract be legal or valid be a strong  circumstance to show Mr Spencer be full apprise of the nature of it and no  fraud or imposition therefore can be suggest on this head the confirmation  here be much strong than in the case of coal and Martin because the original  bargain here be attend with much fair circumstance Mr Spencer here be a debtor  and sir Abraham Janssen may have distress he by bring a action and yet so far  be he from take this advantage that he wait two month without stir one step in  the affair the plaintiff counsel have say there have be only one case of  confirmation where this court have decree in favour of it but several where  the court have set aside bargain notwithstanding confirmation and instance in  the earl of Ardglass v Muschamp and wiseman v beak but the circumstance in the  first of these case be not at all applicable to the present the same fraud  attend the confirmation as the original bargain and in the second of the case  the confirmation be still more extraordinary and the person just in the same  distress situation as at first and in both of they the original transaction be  gross fraudulent but here the original transaction be doubIful at least if not  entire clear of imposition upon the whole I be of opinion the only relief the  court can give be against the penalty and judgement and as the plaintiff have  worthy of approval causan to dispute and the defendant a case far from entitle  he to the favour of the court I shall not therefore give he cost against the  plaintiff for I agree entire with the master of the roll that the plaintiff as  trustee be to be great command for submit a question of this nature to the  consideration of a court of equity atkins let it be refer therefore to a  master to take a account of principal and interest due on the bind in and the  judgement thereon and to tax the defendant his cost at law and on payment to  the defendant by the plaintiff of what shall be due at law let the defendant  deliver up the bind to be cancel and let satisfaction be acknowledge on the  judgement at the expense of the plaintiff atkins er p