giving the obligation, it was corruptly agreed between the plaintiff, faid Campbell, and the defendant, to give the plaintiff one thousand dollars in lawful money, for faid loan, for the term of fix months, more than the lawful intereft; and in purfuance of fuch agreement, faid Campbell gave the plaintiff an obligation for that fum, which was part and parcel of the fame contract. Upon this verdict, the court upon a motion in arreft, determined that the contract was not ufurious, because the final fettlement certificates were in a state of rapid depreciation, and there was a hazard that the plaintiff would receive a lefs fum in value, than the arti cles loaned, because he was bound at the end of fix months, to re-, ceive the fame kind of fecurities, let them be depreciated ever fo much, or the value thereof in money, if he had recourse to an action to compel a payment. * A writ of error was brought to the fupreme court of errors, and the judgment reverfed. As their reasons contain fome impor tant principles, refpecting ufury, I fhall here infert them at large. The point of a loan, and corrupt agreement, between the parties, and Campbell, was directly put in iffue, by the most correct and approved forms of pleading, and by them found for the plaintiff in error, in the very terms of the iffùe joined. The arrest of judgment goes upon the the ground, that no corrupt agreement could exist in a case of this nature, where the thing loaned, was in a depreciating condition, and of a perishable nature, and when the depreciation was at the rifque of the lender. 1. The jury were the proper judges, not only of the fact but of the law that was neceflarily involved in the flue; not only that there was in fact referved by the agreement for loan and forbearance, more than at the rate of fix per cent. per annum, but also of the legal deduction, that it was reserved by corrupt agreement. If the circumftanees of the thing loaned were fuch, that no corrupt agreement could arife out of the tranfaction, the jury fhould have found for the defendant in error, whatever fums were fecured by the notes, but as they have found a corrupt agreement, it is too late for the court to fay, that there is no fuch corrupt agreement, the point being determined by the proper judges. * Fitch vs. Hamlin, Supreme Court Errors, 1789. 2. The 2. The fact, that the thing loaned was in a depreciating condition, and of a perishable nature, does not appear from the pleadings, and the court could not determine the fact by enquiry in pais, or by any matter dehors, the record upon the motion in arrest. This fact therefore, which was the fole ground of arrefting the judgment, the court affumed without proof. 3. Had there been evidence of the fact, it would not have justified the court in arrefting judgment, or in giving judgment for the defendant in error on the demurrer, for there is no article whatever, that can be loaned but what may and frequently does change its relative value, not excepting gold and filver coin, and if it be lawful for the lender, to referve more than fix per cent, per annum, to fecure him from a poffible lofs, arifing from a depreciation in one thing, he may in all but this would deftroy the statute againft ufury, and render it of none effect. 4. Whether at the time of the contract, in the prefent cafe, the article loaned, would appreciate, or depreciate, was perfectly uncertain, and a contract which in its creation was ufurious, could never be faved by any fubfequent contingent lofs, in the value of the principal loaned. 5. This contract, was not a bargain of hazard, as in the cafe of money lent on bottomry bonds, where the lender, by the act of lending, is expofed to the lofs of his whole principal: for in this cafe, the fecurities loaned, were equally liable to lofs by de. preciation, in whofever hands they were, and the lending did in no measure encrease the rifque. A very common practice has taken place as a cover to ufurious contracts, to loan a perfon money, and then make him purchase articles at a price, above their value, fufficient to fecure the unlaw ful intereft, and put the whole debt into the fame fecurity. The difficulty of ascertaining the precife value of goods, and of proving the ufurious intent, has hitherto rendered this mode an effectual fafeguard for ufury; but there can be no doubt, if proof can be adduced, that under thefe circumstances, a higher price is given for goods, than their actual value, for the purpose of concealing Ggg 2 the the ufurious intent of the contract, that fuch deceitful practices' will be deemed an indirect mode of taking unlawful intereft, and such securities may be declared void. Where a note contains unlawful intereft, and being put in fuit, judgment is rendered upon it, on a hearing in damages, and a new note given for the judgment, the debtor cannot in an action on the new note, refort back, and take advantage of any unlawful intereft included in the first note. Where an obligation is given for the price of goods on abfolute fale, tho ever fo dear, it cannot be deemed ufury. So where public fecurities were fold to a perfon for a certain fum, for which a note was taken, and an agreement made, that the debtor might return the specific notes, within a certain term, or the note should be paid in fpecie only, here tho the public fecurities were of less value than the fum fecured by the note at the time of the fale, yet as the contract was for a fale, optional however with the purchas er to return them or pay the note within a certain time, it could not be ufury. . The law makes void all obligations, for more than lawful intereft, and the party may not refort to an original juft debt which was fecured by a ufurious obligation, as the ground of another action, after such obligation has been declared void by a court of law for the lofs of fuch debt is a penalty on the usurer, and if he might recover it by a different form of action, the ftatute would be defeated. Where a perfon takes a note for a fum juftly due, and at the fame time, as parcel of the contract, the parties make a parol contract for the payment of a certain fum over and above the lawful intereft for forbearance of the note, it has been determined that fuch note is void, tho no recovery could have been had on the parol contract. The ftatute refpecting ufury, further enacts, that in any action brought on any bond, bill, mortgage, or other inftrument whatfoever, it fhall be lawful for the defendant, to inform the court by 7 Doug. 708, Cro. Eliz. 104. m Vourfe vs. Gibson, S. C. 1791. n Wadfworth &c. vs. Champion, S. C. 1792. • Cowls vs. Hart, &c. S. C. 1792. Atwood vs. Whittleley, S. C. 1793. g Statutes 261. by filing his bill with the clerk, on the fecond day of the court, that fuch contract is ufurious and oppreffive, and for no jul or reafonable confideration, and fuch court may proceed in fearching the truth of fuch complaint, as a court of chancery, by examining the parties on oath, or in any other way proper to a court of equity, and if the plaintiff refufe to be examined on oath, he fhall become nonfuit, and if on trial, the court find the contract to be ufurious, they may adjust the fame in equity, and give judgment that the plaintiff recover no more than the just value of the goods fold, or than the principal fum which the defendant received of the plaintiff, without intereft, or any advance thereupon. In construction of this ftatute, it has been determined that the defendant cannot be examined upon oath-but he may call on the plaintiff to testify, and then adduce any other proper proof.— But the plaintiff may appeal to the confcience of the defendant, and call upon him to testify. CHAPTER TWENTY-SIXTH. OF TITLE BY GIFT, SUCCESSION, COPY-RIGHT, AND FORFEITURE. I. Of title by gift. The transference of perfonal eftate by F gift, is gratuitous-which distinguishes it from contracts, for gifts are without and contracts upon confideration. Every person has an abfolute power of difpofing of his perfonal eftate. Of course, a voluntary gratuitous conveyance, without confideration, is equally valid and effectual, as a conveyance on fufficient confideration, unless it be where ftrangers, or creditors are affected. It has therefore become a fettled maxim, that tho a conveyance by gift, fhall be conclufive upon the giver, yet it fhall not operate to defeat bona fide creditors of their juft debts: for if a man fhould make a gift of his eftate, either real or perfonal, and fhould not have enough left to discharge his debts, the creditors may take the estate which he has given away, in payment of their demands. For it is a maxim of law, as well as a principle of morality, that a man must be juft, before he is generous, 2 Black. Com. 440. A A gift must be accompanied with the immediate delivery of poffeffion, fo that the transference may inftantly take effect, and the gift become executed, by vefting the property of the thing given, in the donee. This may be verbally before witnefles, or in writing, there being no particular mode adopted by law, as the requifite of fuch a mode of conveyance; it being fufficient to fhew that the donor meant to transfer and deliver the property to the donee. When a perfon has thus executed a gift, it is not in his power to retract it but a mere promife to give without delivering the poffeffion, would not be binding; for a man cannot be compelled to fulfil a promise made upon no confideration. A man however, will not be bound by a gift, where he was drawn in, circumvented, or impofed upon by falfe pretences, ebriety or furprise. A gift of eftate, is fometimes made in the contemplation of death, and is called donatio caufa mortis, and is a death-bed dif pofition of property. As where a perfon in his last sickness, apprehends his death to be near, delivers, or caufes to be delivered to another, the poffeffion of any perfonal goods, (under which has been included bonds, and bills, drawn on his banker,) to keep in cafe of his decease. This gift, if the donor dies is abfolute, excepting against creditors, and is accompanied with this implied truft, that if the donor lives, it fhall revert to himself, being only given in expectation of death. 2. Of title by fucceffion. This is only applicable to corporations, capable of acquiring property, and the fucceeding members acquire a qualified property, in all the goods of the corporation. This title to property, cannot ftrictly be predicated of aggregate corporations. For the corporation in legal confideration, has perpetual existence, and is not varied by the change of members. It has a certain name by which it is known and diftinguished, and by which it is capable of acquiring property. This property therefore, muft be confidered, as vefted in the corporation, which is a mere ideal entity, exiting only in contemplation of law. As a corporation has perpetual duration, there can be no acquifition of property by fucceffion, for where a member is admitted f2 Blac. Com. 514. I P. Wms 406. 44r. t 2 Black. Com. 430. |