atkins case warner and other executor of edward hankin decease plaintiff  Watkins and villiers assignee of Ezekiel woolly a bankrupt defendant a  assignee of a bankrupt can compound a debt without a previous meeting of the  creditor the bill be bring in order to have a account of the transaction  between Woolley and hankin and to be admit as creditor to a proportionable  share of the dividend under the commission of bankruptcy against Ezekiel  WoolLev on the that of February Woolley borrow pound of hankin on bottomry and  agree to pay pound per cent which he secure on bill of sale and bill of parcel  of the cargo of a ship belong to he and the principal be to be discharge when  the remittance from the ship and produce be sell and after the return of the  ship till such sale be complete only pound per cent interest be to be pay by  the borrower Woolley execute a bind in the penalty of pound for performance of  covenant and the lender be to choose the good on which the risk be to be run  there be a proviso if the whole good be lose then the principal be to sink  entire or if only a part of they then to abate proportionable other cargo be  send exact upon the same term and the same stipulation in Mr Woolley become a  bankrupt his assignee insist this be a very unreasonable agreement and ought  not to be carry into execution that the covenant be very unusual one and the  interest very exorbitant especial as hankin be to have per cent on the good  after they be actual come home and therefore they insist they have do right in  refuse to admit the executor of hankin as creditor as they have order a sum to  be retain to satisfy the demand if they shall be eventual entitle to it Mr  brown for the plaintiff in order to show it be a reasonable contract argue  that it must not be consider as a case of common interest because this be a  casualty where the principal be risk and may be lose and that he do not  remember any instance where the statute of usury have be apply to a case of  this nature atkins the voyage to the west Indies where this ship be bind be a  more dangerous one than any other and beside there be a very great hazard of  the sugar be very considerable damage by the sea wash away a great part of it  though good be lose in bottomry contract yet if the bottom of the ship come  home the contractor here be liable to make they good in common case the  bottomry interest be pay till the whole remittance and produce be sell though  the ship be return but here as soon as the ship arrive in the harbour the  bottomry interest be to cease and only common interest to commence and we have  it in proof that Woolley pay per cent on bottomry to other Mr Owen of the same  side say the risk here be double for it be run upon the good that be send out  and likewise upon the good that be to be remit that common bottomry agreement  run for a certain time as suppose for eight month though the ship return in  six month and though the principal be pay to the lender yet the per cent still  go on till the eight month be expire Lord chancellor I do not at all wonder  that Woolley be break and then turn to Mr attorney general say do you insist  for the assignee under the commission of bankruptcy that this be a usurious  contract for if you can make it doubIful whether it be usury or not I will  direct a issue to try it at law Mr attorney general for the defendant insist  every contingent contract be not usurious but its circumstance must clear it  from usury one hundred and seventynine pound Hankin actual receive and pound S  d be all the produce from pound worth of good carry out the contract seem to  be quite of a new nature for the counsel of the other side do not pretend to  show any instance of such a agreement atkins they endeavour to compare it to  the case of a bottomry bind if it be real so I will not dispute the point with  they because in that case the custom of merchant have make it a reasonable and  proper contract there be no hazard at all run here by any loss which may ensue  from the insolvency atkins er p of a factor for if that have be the case the  per cent do not cease but hankin be still entitle to have it continue till the  principal be satisfy the good return whether of sufficient worth or not be to  satisfy full the money lend at per cent and the fact be they fall short in  value and if Woolley have not be a bankrupt he must have pay the per cent to  this day therefore the term of this contract be upon the face of it  unreasonable there be a time too when there be no hazard run and yet the  lender shall have his per cent notwithstanding beside too the time be  uncertain when the contract shall end by the common form of bottomry bind your  lordship will see what merchant think a reasonable contingent security it the  ship return in a stipulate number of month as in the case of a eastindia  voyage in month and in the case of a WestIndia voyage in month the contract  may possible run at per cent for the month but then it can possible be extend  any further but ought to be confine to so many of the month as be run out  before the ship arrive here the risk be run during the whole time the ship be  in port as well as out of port and in the present case the lender run no risk  if the good be lose for there be a proviso in the present agreement that  unless Mr hankin receive notice on what ship these good be put on board so as  he may insure they that if they be lose the borrower shall not benefit by it  in this case there be no risk run upon the loss of the ship but in the common  case though the good be save and the ship lose the lender must suffer Lord  chancellor Mr attorney general will you agree to allow the executor of Mr  hankin upon the contract interest at per cent during all the time except when  the good be upon land atkins Mr attorney general on behalf of his client  desire time to consult they as to this proposal Lord Hardwicke say I tell you  beforehand I will not carry this contract one jot further than I be compel to  do by the strict rule of this court and in the mean time adjourn it to the  first day of cause in the next term in Trinity term the cause come on again  when Lord Hardwicke be please to order that it be refer to master Edward to  take a account of what be due from Ezekiel Woolley the bankrupt to the  plaintiff the executor of Edward hankin on the several contract and in take  the account the master be direct to allow the plaintiff per cent for the sum  lend in respect of the risk of the good mention in the contract during the  voyage outward and homeward and as to the homeward bind voyage the per cent be  to be compute only in proportion to the value of the good remit in such voyage  and at the rate of per cent only for the rest of the time mention in the  contract during which any allowance of interest be thereby agree to be make  down to the time of the bankruptcy of Ezekiel Woolley and the master be also  to take a account of what the plaintiff or Edward hankin receive in money or  good towards the say principal and interest which be to be apply first to sink  the interest and then the principal and for so much as shall be find due to  the plaintiff on this account they be to be admit as creditor under the  commission of bankruptcy against Woolley and to receive a satisfaction for the  same in proportion to the rest of his creditor Reg lib b fol N B Lord  Hardwicke say in the case of Warner and Watkins a assignee under a commission  of bankruptcy can make any composition of a debt due to the estate of the  bankrupt though recommend by the court without a previous meeting of the  creditor for their concurrence in consequence of a advertisement in the  gazette for that purpose see Geo c S atkins er p