By the the legal estate in the premises vested in not need to say much, because I am sure Thomas Gilson. How Beheathland ever no title at all appears either in the defendgained any other right or title, will be in- ant or Beheathland, under whom alone it cumbent on the defendant to show; for my is, the defendant pretends to claim. They part, I cannot so much as guess at it; for I were neither of them heir to Thomas Gilcannot conceive, 3rd. That her seating in son, nor was any conveyance ever made by 1692 (which is the third point) could give him of his right. So that there cannot be her any right, or be taken as a performance any pretence of any legal title under him. of the condition of the first or second If they will set up an equitable title, as I grant, which, if it should, would conse- do not know what they may pretend to, quently make the third grant to Smith, it will be unnecessary to give any anvoid. I have before observed, that if the swer. We are at common law, and I pregrant to Thomas Gilson was good, the legal sume the determination will be upon the estate of Beheathland determined when legal title, and not any imaginary equitathat grant was made. I cannot conceive ble one, if any such is pretended. 5th. Adthen, how a tortious act of hers, twenty mitting the grant to Smith is not good, years after, could regain that estate she then it is to be considered whether the poshad forfeited so long before. I call this session of the lessor of the plaintiff, above seating of hers in 1692, a tortious act, for twenty years before the defendant's entry, if the grant to Thomas Gilson is good, and was not a bar to that entry, and gives the his estate continued, it was a dissiesin or lessor a good title in this case. trespass upon him. If his estate did not stat. 21 Jac. c. 16, s. 12, which are enacted continue, but was become forfeited, it was here, totidem verbis, 9 Ann. c. 13, it is an intrusion upon the King. I am really not. So, see the statute and the act, any at a loss to determine what arguments can person having a right of entry, must make be made use of, to prove that such an act that entry within twenty years after the can give any legal right or title, and there- title descended or accrued, or is barred from fore I must be silent till I hear what they such entry; with the usual savings to inare. Sure, it will not be pretended that fants, feme coverts, &c. who may enter this was any performance of the condition within ten years after the disability reof the first grant to Beheathland, twenty moved. This act being express, that the years after the condition broken and entry party shall be barred if he does not make made for the breach, and thereby the estate his entry within twenty years. A possesdetermined. Neither can this seating be sion of twenty years is compared to a detaken as a performance of the condition in scent that tolls entry. And therefore, if a the second grant, as I humbly conceive, man has been so long in possession, and being so long after the time limited in the another enters upon him, and puts him to grant for performance. I shall admit that his ejectment, that possession shall be as a seating by one who has no title, shall good a title in him (though plaintiff) as if enure to the benefit of those who have he was defendant and still in possession; right. But then I think this seating ought to be within the time limited. Suppose we were in the case of a subject: an estate is granted upon condition to be performed within three years, which is not done, the grantor does not enter, but suffers the grantee to continue in possession, who many years afterwards performs the act required by the condition. I believe this would not be taken as a performance of the condition, or bar the grantor of his entry. And if not in the case of the subject, much less in the King's case, where conditions are always taken strictly, and as most for the King's benefit. And, though equity will sometimes interpose to save a forfeiture, where *the design and intention of the grantor is fulfilled, though the condition be not strictly performed, that was never known in the King's case. Besides, the intention here was not fulfilled, which was to have the land seated and cultivated. I conceive then, this seat-in her at the time she devised to her daughing in 1692, was no performance of the condition of the second grant, and then the grant to Smith in 1705, is a good grant, and the lessor of the plaintiff has a clear title. 4th. But if this seating can be taken as a performance of the condition of the second grant, it must next be seen, if the defendant has any title under Thomas Gilson, the grantee, upon which head I shall 22 V R, Jeff-2 man because the defendant's entry was not 23 some incapacity has intervened in the *defendant, or those he claims under. Admitting any title does appear for him, and if no such does appear, then the priority of possession is a good title against the defendant's entry, without any title at all. Lege. Salk. Because I will not take up time unnecessarily, I will agree that if Beheathland had a good title ter Elizabeth, our twenty years' possession 17 grant, and so the grant to Smith is void, The jury found only nine pounds three yet the defendant having no title under shillings damages. Thomas Gilson, our priority of possession is a good title against this entry; at least the twenty years' possession is undoubtedly a good title against Thomas Gilson, and all claiming under him, there appearing no incapacity as to them. Randolph moved that no juagment ought to be given, the damages being under ten pounds sterling. So the action will not lie in this court. Barradall, contra. Judgments are given here every day, where the damages found by the jury are under ten pounds, if the cause of action laid in the declaration, is for so much, and so the practice was agreed to be. And the motion was overruled. Reported by Edward Barradall, Esq. Anderson v. Winston. Usury*-Case at Bar. Debt on the act 3 and 4 Geo. 2, c. 12, against taking excessive usury. The plaintiff declares that the defendant, after the 29th of September, 1730, viz. ultimo July, 1731, at, &c. upon a certain contract made between the defendant and one John White, did receive of the said White, by way of corrupt bargain and loan, three pounds currency, for gain, use, interest and giving day of payment of twenty pounds currency by the defendant to the said White lent over, and beside the lawful interest of six per cent. against the form of the Act of Assembly, &c. and in another action, declares in like manner for taking thirty six shillings for interest, and giving 25 Randolph for the defendant, said the question was, whether the second or third grant were good. That where an estate was granted upon condition, though the condition was broke, the estate continued until entry of the grantor. And where an entry was necessary in the case of a subject, an office was so in the case of the King. Therefore, that the breach of the condition of the first grant, must be found by office, before the estate of the first grantee was determined. That it did not appear in this case by any proof, that the condition of the first grant was broken before making of the second grant, nor even so much as that the party was summoned, which was certainly requisite, according to natural justice; but the second grant might be made without any enquiry into the truth, or hearing the party, as grants frequently were in old time, and then it is certainly void. He cited Pop. 53, to shew that an office in the King's case countervailed an entry in the case of a subject. (Quer. of this, for by Pop. 25, there must be an entry after the office.) He compared this to the case of Carter and Baylor, though there is really no kind of similitude between them. That case, which happened in was in short this: Edward Hill obtained a patent in 1683, for seventeen hundred and seventeen acres. In 1693, he gave the land to Edward Chilton, and Hannah his wife, (who was his daughter) and their heirs. In 1698, Edward Chilton alone sold to Baylor, who cleared enough to save the land, according to the law then, and afterwards in 1704, obtained a new grant of the same land, as lapsed from Hill. Hannah survived her husband, Edward Chilton, and Mrs. Carter was her heir, and so if the grant in 1704, to Baylor, was not good, had an undoubted title. * And it was adjudged that grant was it. not good, the land being saved before; and though it was saved by a stranger, not the grantee, or those who claimed under him, it should enure to the benefit of those who had right. 24 Judgment for the plaintiff, October, 1735. By the opinion of Lee, Tayloe, Robinson, Byrd, Blair, and the Governor. Randolph, Custis, and Digges, contra. Reported by Edward Barradall, Esq. Tutt v. Freeman. Jurisdiction*-Amount in Controversy. Indebitatus assumpsit for goods sold, money lent, and paid, and services done. *See monographic note on "Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457. day of payment of twelve pounds, in which actions *the jury find specially; that White, some time in June, 1730, borrowed of the defendant ten pounds current, and in July, twelve pounds more, and gave separate bonds for payment of twenty pounds, and twelve pounds sterling at the end of a year. In April, 1732, White and the defendant made a settlement, and for the first year White was charged for principal money on both bonds, £36. 16s. current, and in October following White paid the said £36. 16s. and interest at six per cent. from the respective days of payment in the bonds, and the defendant received And if the Court adjudge the defendant guilty, they find him guilty of taking the said £4. 16s. above six per cent. upon the said bonds. And I take it upon the matter found, the defendant is not guilty of any breach of the said act; before the making of which, there was no law here that settled the rate of interest, nor were men subject to any penalty, though they took twenty or even fifty per cent. Now, this act provides that no person, after the 29th of September, 1730, upon any contract to be made after that time for loan of any monies, wares, &c. shall take above six per cent. per annum, for forbearance, and all bonds, &c. made after that time, where more is received, shall be void, and any person who, after the time aforesaid, upon *See monographic note on "Usury" appended to Coffman v. Miller, 26 Gratt. 698. any contract to be made after the said 29th | and July, 1730, he let White have twenty of September, shall receive above six per and twelve pounds, and took his bond for cent. shall forfeit double the value of the payment of the like sum sterling at the end money, &c. lent, &c. It is plain this act was intended to refer only to contracts made after the 29th September, 1730. The penning of it is very strong to exclude all contracts made before the 29th September, 1730, and after the time aforesaid, is repeated no less than four times. Indeed, it would be very strange to subject them to such severe penalties, when they transgressed no law then in being. I suppose it will not be pretended that any bond taken before the 29th September, 1730, where more than six per cent. is received, is void. Then neither can the receiving the money upon such bonds, subject the obligee to the forfeiture of the double value for it. Receiving upon a contract made after the 29th September, is made penal by this act. This I take to be very clear upon the words of the act, as well as evident from the reason and justice of the thing, and therefore it may be needless to mention the authorities upon this head. But as there are cases directly in point adjudged upon the statutes of usury in England, I will beg leave to mention two or three. Hawk. 1, P. C. 244, is express that a contract made before the act, 12 Anne, which reduces interest to five per cent., is not within that statute, but that it is lawful to receive six per cent. (the legal interest before) upon such contract. See Dalt. 13; Raym. 195. But 26 we go no further than to the last act against usury, 8 Geo. 2, *5, to prove such contracts are not within the first act, upon which this action is founded. The title of it is to make void certain contracts for paying excessive usury. It recites that there were several contracts subsisting, made before passing of the first act, or between the passing and commencement, and though there was no law in being to punish such unreasonable lenders, yet such contracts, which were always unrighteous, ought not to be binding. It is therefore, enacted, that all bonds, &c. made before 29th September, 1730, where any interest above six per cent. is agreed to be paid, shall be void as to all interest above six per cent. Here is the judgment of the legislature, that contracts made before the first act, or before the passing and commencement, are not punishable by any law, and all the punishment inflicted by this act, is only to make such contracts as were then subsisting void, as to all interest above six per cent.; but there is no penalty for receiving the money upon such contracts. If there was, the defendant would not be within it, the matter for which this prosecution is set on foot being transacted long before the making of this act, and was not a contract then subsisting? If then the defendant did not take above six per cent. upon a contract made after the 29th September, 1730, I conceive he is not guilty of the breach of any law; and that there is nothing found in this verdict to prove he did, is very clear. In June 27 is of a year. This, I hope, was a contract before the 29th September, 1730. It was lawful then for the defendant to receive the money due upon these bonds, I mean without being subject to any penalty. In April, 1732, White and the defendant made a settlement. At this time the defendant might lawfully take the sterling money reserved on the bonds, as I said, and might also lawfully receive six per cent. interest upon the money from the time it ought to have been paid; and this is all he did do. The sterling money is paid in cash, at fifteen per cent. the lowest exchange, which makes £36. 16s. the money received upon the settlement, together with interest upon it, from the time it was payable by the bonds, at six per cent. If there is any pretence of a contract after the 29th September, 1730, in all this, it must be when this settlement was made; but upon that he took no more than six per cent. And however unreasonable it might be to take fifteen per cent. upon the first contract, which was before the law, it is plain he has not taken more than is allowed by the law on any contract since, and therefore he is not guilty of any breach of the Act of Assembly; unless it is construed that the receiving money after the 29th September, 1730, upon a contract made before that time, *where more than six per cent. is received, within the act. But I humbly conceive such a construction can never prevail, being against the express words as well as intention of the act, which, as I have observed, is penned in the strongest terms to exclude all contracts before. It is against the sense of the legislature here, since the making of it, as I have shewed from the second Act against usury; against the rule of construction in such cases, as appears from the cases I have read, adjudged upon this point in England; against the private sentiment, as we may suppose, of Sir John Randolph, who, we all know, had the penning of the second act, and was very active in promoting it; and also against natural justice to punish any man for an action, innocent in itself with respect to human laws, by a law made ex post facto, which kind of laws have been always condemned unjust, and therefore to make such a construction of a law against the express words of it, I apprehend can never be thought right; and I hope the consequence of such a determination will be considered. It must affect a great number of people, who thought they might lawfully take more than six per cent. before the act, and perhaps in conscience might do so, for, with deference to the learned gentleman's opinion, I think some men, under some circumstances, may as lawfully take ten per cent. as others five. I mean foro conscientiæ, and abstracted from positive laws; and in this most of the writers upon the law of nature agree. I own that usury seems to have been always condemned by the antient as where he may see it proved to a demonstra- laws of England, though an usurer was only punishable by ecclesiastical censures in his lifetime. But if it was found by twelve men after his death, that he died an usurer, he was compared to a thief, his goods were forfeited to the King, and his lands escheated. 3 Just. 155. And as usury was an offence punishable by the law of the Church, we frequently find it said to be against the law of God. Not that it is prohibited by the Gospel, though it might be so by the canons and decrees of the Pope, which last, in the times of superstition, the artful priest taught the world to believe were as much the law of God, as the Gospel itself. But now mankind are more enlightened, and protestants, at least, allow nothing to be against the law of God, but what is prohibited in holy writ. 1 Hawk. 245. As to the prohibition in the Jewish law, that is not at all obligatory upon Christians. The law of Moses was promulgel to a particular people, and was only binding upon them to whom it was promulged. It is not pretended, nor is it any where said to be an universal law to mankind; and that it is not binding upon Christians, that is, the actual and political part of it, we have the authority of the Church, especially when their money is as viz. seven of the thirty-nine articles. 29 useful to the Commonwealth; for no 28 It is true the moral *part is there considerable trade could be carried on said to be binding, and so it would without it. Usury was allowed by the be if it was not in the law of Moses; the Roman law, Puff. 276, note 4, and is pracmoral law being eternally and universally tised in almost all civilized nations, at binding upon mankind. But in truth, this least, in all Christendom. It is indeed proprohibition is not a general, but a partial hibited by the Alcoran; but even the proprohibition, respecting the Jewish nation fessors of that religion evade it, by lending only, for they are permitted to take usury money to have a share, as a fourth or fifth of strangers, though not of one another, part of the gain made by it, which is the which is plain proof that usury is not same thing, for in equity there is no differagainst the moral law, for if it was, the ence whether I agree for a certain gain Jews, who were the sanctified and chosen before hand, or run the risque of an uncerpeople of God, would never have been per- tain one. Puff. 276. As to the quantum, mitted the practice of it at all. Indeed, that may be taken for usury according to it is impious to suppose that God would natural justice, Grotius and Lucan 6. 35. tolerate the practice of a thing simply and (See Barbeyrac's note on Grotius, 2. 12. naturally unlawful. This prohibition then 20.) proportions it not by the gain of the to the Jews was merely political. First, to borrower, but the loss that accrues to the obviate that avaricious disposition so ob- lender, and that so much ought to be paid servable in that people, and to prevent it by the borrower, as the lender in the way from running out into oppression of one of his calling, usually makes of his money, another; and second, thereby to cement allowance being made for hazard. But them into a closer bond of amity to each | because it would be difficult to prove and other. Third, to secure and strengthen adjust this exactly, and such a latitude that democratical government Moses intended to institute, by preserving some kind of equality in property. Upon which principle, the laws of Jubilee, and against alienating land for ever, were also instituted. It must, however, be owned, the primitive Christians took no usury; probably out of a superstitious reverence to the Mosaic law, which might be the first occasion of its being condemned by the Church, though afterwards abused by the Clergy, who made a market of that, as well as other offences, by the practice of commuting for penance. Whoever has a mind to be further convinced, that usury is not against natural justice, let him read Puffendorf's law of nature, B. 5. c. 7. s. 8. ad finem, and Barbeyrac's notes thereupon; would give an opportunity to ill men to insist upon too great an interest, the policy of most nations has reduced it to a certain standard, which is more or less according to the different circumstances of each state. In trading countries, as in Holland, it is very low, two and a half or three per cent. In Venice where there is no trade, it is eight per cent., and interest is high in all the inland parts of Germany. The rate of interest in England has been reduced from time to time, as money has grown more plenty and its trade increased. By the H. 8. it is prohibited to take more than ten per cent. under a penalty. This is the first law that made usury cognizable in the King's court. Thus it continued till James I., when interest was reduced to eight per cent.; after the restoration, it the lessor of the plaintiff, knew. The dewas reduced to six, and by the Ann fendant afterwards surveys one thousand acres, and obtained a patent in September, 1728, which takes in part of the land within the bounds of Chew's patent. This was marked and measured, and the surveyor (the said Tayloe) told the defendant the land was free and not taken up before. It appearing by the jury's report in the country, that the surveyor told Chew, when he began his survey and run the sixty poles, that he could not then finish it, being then Saturday night, but would, when he came up to finish two other surveys he had begun the day before. It appears also, that in January, 1728, when the defendant first began to seat his land, Chew forewarned him from digging upon the land in controversy. The survey is of no other use than to shew how the grants interfere, and the sole question in the case is, whether the grant to Chew, the lessor, be good or not. The objection is, that the surveyor's returning a plat without marking and measuring is a false suggestion, and so the King was deceived, and his grant void. This point has been once already labored very strongly, and once your honors have determined that the grant is good; but Sir John Randolph is now to convince you of your mistake. However, I hope this case will not be drawn into a precedent, that after judgment is passed, a cause shall be suffered , to five. In most of the English plantations, I am told it is now at ten. Twelve was permitted by the Roman law till the time of Justinian, who reduced it to eight. Puff. 276, note 4. Thus it varies in different countries, and in the same country, according to the different circumstances of it. To conclude: where the rate of interest is settled by law in any country, no good man ought to take more though it was not prohibited under a penalty; but where there is no law, the rule laid down by Grotius, seems very equitable, viz. in proportion to the loss that accrues to the lender, and therefore, a trading person who usually makes a great profit of his money, may with good conscience require more than one, whose money lies dead upon his hands. From whence I would observe, that the taking more than six per cent. before there was any law, by some men, under some circumstances, was not criminal and unrighteous as is pretended; yet I should the land, and that with Chew's privity, be sorry to be thought an advocate for *excessive usury, as it is certainly introductory of great oppression, and I am heartily glad it is settled by law. All that I contend for, is, that a man may not be punished for any contract of this sort, before there was any law to make it penal, and I hope judgment will be given for the defendant. 30 This case was agreed by the parties, and so no judgment given. Reported by Edward Barradall, Esq. Legan, Lessee of Chew v. Stevens. Land Patents-When Junior Patentee Has Priority entee was entitled to the land. There has been a survey with a jury in the country, and a special verdict found here upon which the case is: in September, 1726, Colonel Tayloe, a sworn surveyor, surveyed (or pretended to survey) for the lessor of the plaintiff, one thousand acres of land, of which he returned a plat, and a patent was granted, June 16, 1727. This land, except about sixty poles from the beginning, was not marked or measured before issuing of the patent, and this Chew, 31 to be argued again, because a lawyer or his client happen *not to be satisfied. It must be my task to endeavor to shew that this grant is good; and although I shall not produce so many cases as I presume you will be entertained with on the other side, I hope to prove, first, That there is no such deceit in this case as will make void the King's grant; secondly, That to determine this grant void, will introduce a general mischief and inconvenience upon the subjects here. As to the first, the King is of that great eminence and consideration in the law, that many little defects and omissions will make his grant void, which, in the case of a common person have no effect. Such are mis-recitals, wrong suggestions, non-recitals, &c. But the reason is not, as I conceive, because the King's honor was concerned, as was argued last court, but because the King is supposed to intend the great affairs of government, and cannot take notice of matters of lesser moment, as a common person may and ought to do. 224. And the true reasons, why the law adjudges the King's grants void in case of deceit, are first, To punish the party for his fraud; secondly, To prevent damage and prejudice to the King's interest, which would often happen if such grants were allowed. Hob. 223. Yet it is not every circumstance that may be called deceit, nor every wrong suggestion that will make the King's grant void; and where the King is not deceived in the consideration, in his title, in the value of the land, or in the restrain he intended to make for his bene Hob. |