I

Cornell UniversityThe Moak

Law

Library

Collection

PURCHASED FOR

The School

of

Law ofIN

Cornell University14,

And Presented FebruaryHEnORY OP

1893

JUDGE DOUGLASS BOARDMANFIRST DEAN OF THE SCHOOL

ByA. M.

his Wife

and Daughter

BOARDMAN

and

ELLEN

D.

WILLIAMS

Cornell University Library

KF 1036.T98A treatise on tlie law of usury, pawns or

3 1924 018 849 798

p^

Cornell University Library

Thetine

original of

tiiis

book

is in

Cornell University Library.

There are no known copyright

restrictions intext.

the United States on the use of the

http://www.archive.org/details/cu31924018849798

:

A TREATISEON THE'

;

,

,

LAW OF USUET,PAWNS OR PLEDGES,ANT)

MARITIME LOANS.By

ransom H.XYLEE,

Author of "Amebicaw Ecolestabtioal Law," " Commkn-taeies oh" the Law of Lnfakot' AND COVESTTrBEt'' "A TbBATISB ON THE REMEDY BT EJECTMENT, AND THE Law of Adtebsb Enjoyment," etc., bto.

ALBANYW^IHiIilAM: GrOXTIilD1873,

&

S03S",

Entered accoi'diDg to Act of CongreBS,

m

lae year eigUeen hundred and seventy-three, by

wiLLIAJtt

GOULD & SON,

in the office of the Librarian of CongreBS, at Washington.

THE ABGUS COMPANT, PRINTERS AHI> STERE0TYPEB3. AXBANT, N. T.

;

PREFACE.Thethat a

following treatise has been prepared under an impressionfor the public convenience.all

work of the kind was required

The

subjects

which are treated 've regarded with interest in

parts of the

American Union.

So long

as usury laws exist, it is

of the utmost importance that they bdj understood.at present

There

is

not

an American work upon

"^sury, in

which the general

subject

is discussed.

Mr. Blydenbui^h, some thirty years ago,

brought out a small work on the law of usury, but he expresslydeclared that his

work was designed only

as a;

supplement to the

English works of Powell, Comyn, and Ord

and, since that,

two or

three other brief essays have appeared, giving the history of usury,

or discussing the policy of usury laws, without any attempt toillustrate or explain

what the law

is.

Within^ the

last

few years,

the statutes of the several States upon the subject of usury have

undergone considerable change, and in a few of the States lawsagainst usury have been abolished altogether time,;

and, in the mean-

many decisions have been pronounced bysubject.

the courts bearing

upon theit

These circumstances,that ais,

it is

believed,

have made

the

more necessary

new workand where

should be prepared, showit

ing, what the law really

may be

found.

Someis

have supposed that in those States where theto nullify the contract infected to the extra interest,

effect of

usuryit

not

by

it,

but merely to makeis

void asor no

and the

like,

the subject

of but

little

importance.exist, in

This

is

doubtless a mistake.is

Wherever usury laws

any form, the subject

of importance,

To

illustrate

4

PREFACE.

'

In the State of Pennsylvania, theis

effect of

usury in an instrumeutinterest.

merely to defeat the collection of the usurious

In a

case, referred to

and examined in

this

work, the

plaintiff

sought tointerest,

foreclose a

mortgage made to secure $43,200, with legal

and the defense of usury was interposed.

The jury foundpayment of a loanby law, and

that

the amount unpaid on the mortgage was $42,682.87, butfact,

that, in at a

the mortgage

was given

to secure the

rate of interest exceeding that established

that,

by

deducting such excess,$25,799.24.

the amount actually unpaid was onlyfairly

The question was

presented and litigated,it

whether the transaction was usurious or not, andit

was found that

was usurious, and theof the

result

was that a deduction was made from

the face

mortgage of $16,883.63; demonstrating the

necessity of a

knowledge of the principles by which the question

of usury

is

to be determined, even in those Statesis

where the

effect

of the law

simply to deprive the party of the right to collect

the excessive interest.

The

probability

is,

that but

few of the

States will very soon try the experiment of doing without lawsagainst usury in

some form, and

so long as such laws exist, a cor-

rect understanding of

them

is

of great importance to the

com-

mercial world.

In respect to the contract of pawn or pledge,affirmed that few subjects connected with the

it

may be

safely

commerce of the

country are of more general importance than the law regulatingthe subject of pledges or pawns.

Every business man has moreis

ox less to do with the subject, and yet there

scarcely

any com-

mercial subject less generally understood, or less adequately ascertained.

Here, again,

we

are without the aid of a single

American

work.

A few brief

paragraphs are devoted to the subject in the

excellent treatises of

Judge Story and Mr. Edwards on Bailments,

but no work has heretofore appeared in which the subject has beenspecially treated.

This want has been seriouslythis

felt,

and hence

the importance of the discussion in

work,

;

PREFACE.So, also, the subject of maritime loansespecially to theis

of

marked

interest

members

of the legal profession practicing in theIt is true that the sub;

great commercial centers of our country.ject has been discussed in

works heretofore publishedfirst

but a con-

siderable

time has elapsed since those works

made

their

appearance, during which

many importantit

decisions have been

made upon the

subject,

making

necessary that the whole matter

should be newly presented.I have endeavored in this work to examine, carefully and fully, the several subjects which I have treated, and bring out with clearness

and accuracy the law and principles by which they arePart I occupies 446 pages, in which the

respectively governed.

subject of usury is exhaustively treated, the constituents of usuryclearly defined, the statutes in force in the several States relatingto interest succinctly stated,

and the principal authorities upon

the subject, both in England and this country, thoroughly considered,

and the doctrine of the

cases accurately stated

;

thereby

furnishing a precedent for almost every conceivable usurious case

which maycontract ofto a

arise.

Part II consists of 233 pages, in which theor pledgeis fully

pawn

considered, the proper parties

pawh

or pledge, their rights, obligations

and

liabilities,

and

the final disposition of the subject of the

pawn

or pledge, are

designed to be plainly and accurately stated and defined.III consists oflittle less

Part

than 100 pages, and

is

devoted to a conrelat-

cise discussion of the subject of

maritime loans, and the law

ing to bottomry andauthorities

respondentia;

and the doctrine of thedown.

upon the subject work

is briefly laid

The

object of this

is

to bring within a limited compass;

the law relating to the important subjects considered

and to

this

end I have endeavoredforce,

carefully to

examine

all

the statutes in

and the decisions of the courts bearing upon those subjectsto

down

the present time, and faithfully give their spirit and

import, so that they

may

be readily comprehended.

The

subjects

6of theis

PREFACE.

work may be regarded

as

somewhat cognate, and

as neither

sufficiently prolific of itself to furnish material for ait

book of

convenient size, I have thoughtin

best to group the whole together

one volume, and thus produce a book of proper dimensions forRecognizing thefact that a

use.

good index adds greatly

to the

value of a book, I have given to the

work awhich I

full

and complete,

though not

prolix, alphabetical index,It has

trust

may be

found

convenient and useful.

sometimes been remarked, that burit is

modemsurely,

law books are not trustworthy as authority, and thatcases.

never safe to rely upon-them without consulting the

This,

need not be the

case,

and I

flatter

myself that I have beenbe trusted; and for the

enabled to produce a book whichreason, that

may

I have been careful to fortify

my

statements by a

reference to the authority

upon which they have been made, and

in no case toauthority.

make

a statement not sanctioned

by competent

I have taken liberties with the standard elementary

works upon the subjects discussed, but where I have availedmyself of the labor of others, I have endeavored, so far as waspracticable, to

acknowledge the source

to

which I was indebted.

I

trust that the

work may proveessential

of service toto

my

professional

brethren,

and an

acquisition

the library of every

practitioner.

Deoembek, 1872.

TABLE OF CONTENTS.

PART

I.

OF THE

LAW

OF USURY

CHAPTERDefinitions of

I.

Usury and

Interest

The wordsit is

differ in their

meaning

PAOE.

Opinions respecting the Morality of Taking InterestPractice

Anciently,

the

Condemned

At Present,

Approved

35

CHAPTEEEarly Writers of Usurers and their Practice

IL

History of Usury in Europe and Great Britain

Denunciations

by the40

CHAPTEE

III.

History of Usury in the Colonies and in the American States

49

CHAPTEE IV. The Policy and Propriety of Usury Laws Arguments andthe subject

Opinions upon66

O

TABLE

OF-

VONTMNTS.

CHAPTEETheStatutes in force in respect to Interest

V.PAGE,

and Usury in the States of

New

York, Vermont,Connecticut,

New Hampshire, Maine, Massachusetts, Rhode Island, New Jersey, Delaware, Pennsylvania, Ohio and Michigan 64

Table of the Rates of Interest in those States respectively

CHAPTEKTheStatutes in force in respect to InterestStates of Maryland,

VI.and Usuryin the

remaining

Virginia, "West Virginia,

North Carolina, South

Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Louisiana,Arjsansas, Texas, California, Oregon, Nevada, Nebraska, Kansas, Missouri,

Iowa, Minnesota, Wisconsin,

Illinois,

Indiana and Kentucky

71

Federal Statute on the subject for National

Banks Table of the

Rates

of Interest in those States considered in this Chapter

CHAPTEEOf theof Laws on the subject

VII.Usury

particular Statutes to be applied in cases of alleged

Conlflict78

Rules by which the questionCHAPTEEVIII.

is

determined ....

The

Constituents of Usury

There must be

a Loan, express or implied

be

There must be an Agreement that the money lent shall orreturned

may

CHAPTEEConstituents of Usury

IX.

Illegal Interest must be reserved or taken Thereto take

must be a Corrupt Agreement

more than

the legal rate.

101

Transactions not tainted

CHAPTEE by Usury Certainis

X.rules applicable to

Contracts not usurious because thereSales of credit

no Loan

Usury Elements of a Loan 110

Guaranties

TABLE OF CONTENTS.

9

CHAPTEK XLTransactions not usurious for the want of the element of atracts in the

Loan

Con-

PAGE.

form of compensation

commissions on making Loan

for service Charges for reasonable Loans upon condition that debt of third. . .

person be assumed, or that a subsisting debt of the borrower be paid.

130

CHAPTERTransactions not usurious

XII.

Makingadvance

deposits

in

consideration

Compensation taken on account of exchange of a Loan Taking Interest in;

143

*

CHAPTEETransactions not usurious

XIII.156

Bonus to agents for negotiating LoanCHAPTER

XIY.is

Transactions not usuriousto

be returned

at all events

Cases in which the money loaned not agi'eed Bottomry contracts Contracts in the form179

of a post obit

Transactions between partners

CHAPTER XY.Transactions not usurious

form of a rent-charge

Contracts in the form of an annuity Same in General considerations

188

Transactions notthe same

CHAPTER XVI. usurious Interest in the nature of

a penalty, or where

avoided by prompt payment of the principal Transactions where stocks are loaned or transferred Sales of depreciated

may be

securities

,

304

2

XO

TABLE Of CONTENTS.

CHAPTERTransactions not usurioustake

XVII.FAOE.lias

"Where

Cases where

Usury

been incurred by mis-

the excessive Interest

is

reserved or paid as a gift

Of239

compound

Interest, semi-annual Interest

and the

like

,

CHAPTEETransactions not usurious

XVIII.245

Loan of chattels

CHAPTERTransactions not usurioustaint of

XIX.

Miscellaneous^

cases held to be free from the

Usury

255

CHAPTER XX.Transactions held to be usurious

purchase of negotiable paper

Cases of alleged mistake Cases Mistake in construction of statute

of

274

CHAPTERattending the principal Contracts in the

XXI.was analleged hazard

Transactions held to be usurious -^Where there

Cases of sea risk Cases between copartners form of a post obit Contracts in the form of an,

annuity

Other alleged risks.

284

CHAPTERTransactions heldto

XXII.

Interest in advance

be usurious-^ Cases of alleged penalty Taking Antedated instruments Cases in which goods are,

advanced instead of money

297

TASLE Of CONTMNTS.

11

CHAPTEETransactions heldto

XXIII.FAQE.is

be usurious

Warrants of a municipalficates of trust

Cases wliere stock corporation Depreciated bankdrafts

transferrednotes

Certi309

and deposit Exchange of

and obligations

CHAPTER XXIV.Transactions held to be usuriousis

paid for the

Loan

Extra

Cases where something besides Interest sum paid for brokerage Extra sum paid334

as

commission

Extra sum paid as excliange

CHAPTER XXV.Transactions held to be usurious

Cases where exorbitant Interest

is

taken

under the form of discounts

Cases of contingency or prompt payment,

388

CHAPTER XXVI.Transactions held to be usurious

Cases of a miscellaneous nature

351

CHAPTER XXVII.General

Summary

of the cases examined

The Doctrine of the

Courts in 363

respect to'alleged usurious transactions

CHAPTEEHow Usury Lawsare construed

XXVIII.

by

judicial tribunals

difference between Theconstruction372

remedial and penal Statutes

Usifry Laws

sometimes penal and some-

times remedial, and are to be construed accordingly "must be sensible

Usury Laws never, retroactive

12

TABLE OF CONTENTS.

CHAPTER XXIX.Effect of

Usury upon the contract or security tainted byis

it

When

PASE.

the

usurious security

void as between the parties

When as to subsequent381

holders or assignees

CHAPTER XXX.Effect of

Usury upon prior and subsequentwith the originaltaint

securities, collateral to the

con-

tract infected

Reforming the original contract and thelike

Judgment upon the usurious

transaction,

393

CHAPTER XXXI.Usury as a defense Usuryto an action Who may interpose the defense to None but the borrower or those in privity with him can set up the defense Parties may also be estopped of their light to interpose the

defense

403

CHAPTER XXXII.Theat

Penalties of Usury,

and actions

at

law against the Usurer

The action421

law

to recover

back usurious Interestcontracts

When

property deposited or

transferred

upon usurious

may be recovered

CHAPTERRelief in Equity in cases of

XXXIII.maybe main435

tained

Usury When the proceedings Q-eneral rules upon the subject

CHAPTER XXXIV.Thepractice in cases o Usury

Pleadings in

such

cases,

both in

Law and450

Equity

Amendments of

tl

^

pleadings in these casss

TABLE OF CONTENTS.

13

CHAPTER XXXV.PASE.

Compouncling a penal action

for

Usury Trialdefault

of an action involving

Usury

Competency cf the witnessesand judgment Opening

and the evidence in the action

The

verdict

and granting new

trials

465

The consequences

of the trial in penal actions for Usury,

CHAPTEE XXXYI.Usury

by The offense at Common Law The "When the offense complete The indictment and evidence, Statuteas a crimeoflFenseis

474

FARTOF THE

II.

LAW

OF PAWNS OR PLEDGES.

Definition of a -Pledge

CHAPTER XXXVII. or Pawn History of the contractas a security for debt

of pledging or

pawning personal property

481

CHAPTER XXXVIII.Thecontract ot

pawning or pledgingWhat

is

a

Pawn

or Pledgerules

What493

may and what may not be pawnedsubject

or pledged

General

upon the

CHAPTER XXXIX.Theclaim to be secured by a

pledged

Pawn or Pledge The delivery of the thing Po_3session of the Pledge must be continued in the Pledgee..

.

,

504

1^4

TABIjB OF CONTEN'TS.

OHAPTERThe personwomen,of the

XL.PAGE.

Pawnor

or Pledgor

The

power of minors, married

factors

and other agents to make a Pledge or

Pawn

420

CHAPTERTheortitle

XLI.

of the

Pawnor

or Pledgor, and his property in the thing pledged

pawned

His obligations and duties in respect to the thing pawned or433

CHAPTERTherights of the

XLII.

Pawnor

or Pledgor in respect to the property pledged

The

Pledgor's right to transfer his interest in the thing pledged

His444

right to redeem the article pledged

The extinguishment of the contract

of pledge

CHAPTERThePledgee's property in the Pledge orit is

XLin.of the Pledgee in

Pawn Rights

respect to the Pledge before

required to be redeemed

557

CHAPTER XLIY.Eights of vthe Pledgee to enforce his claim by disposing of the property pledged after the claim has maturedlected and the

Negotiable

securities to be col-

money

applied to pay the debt

576

CHAPTER XLV. Rights of the Pledgee after the claim has matured In casesonal property are pledged, the Pledge must bethe Pledgeis

goods or per-

sold "When and how

to be sold Rights of Pledgee in case of Pledge to secure Extent of the Pledgee's claim in th^ Pledge Pledgee's rights when several things are pledged Waiver of errors in the sale ofIllegal

claim

the Pledge

581

,

TABLE OF CONTENTS.

15

CHAPTERceeds of the sale

XLVI.PAO,

Rights of the Pledgee after sale of the Pledge

Distribution

of the pro-

Liabilities of Pledgee in respect to negotiable paper 601

His

liability to

account for the property in pledge

CHAPTERCare and diligence required

XLVII.

Duties and obligations of the Pledgee in respect to the property pledged

Presumptions in case of

theft

Meaning,

of ordinary care, as understood in such cases

615

CHAPTER XL VIII.Duties and obligations of the Pledgee upon the termination of the PledgeLiability

027

upon

refiisal

or neglect to

restore the

Pledge

Principlesthe

governing the question of the pawnee's

liability for the loss of

Pawn,

CHAPTERhis action of

XLIX.

Remedies of the Pledgor in respect to the PledgeTrover or Replevinthe pledgeis

When he may bring His action in Equity to redeem His642

action

when

without legal consideration

CHAPTERTheoperation of Bankrupt

L.

Laws

in cases of Pledge

The doctrine of theAmerican65t5

English authorities upon the subjectcases

The

doctrine of the

on the point

CHAPTEREffect of the death of the parties to a

LI.of deteimining the

Pledge Means

party entitled to the property pledged in doubtful caseslaneous points in respect to Pledges referred to

Some

miscel-

668

1Q

TASLE OF CONTENTS.

CHAPTEEEnglish Pawnbrokers' actthe business of

LII.PAGE.

Statutory provisions in respect to the subject of

Pawns

or Pledges.

Tlieand684

Laws

of

New York relating

to pledges

Pawnbroking

CHAPTERof the,

LIII.

Statutory provisions in respect to the subject of

Pawns

or

PledgesLawsof the Courts

New England

States

upon the

subject

Decisions

under the Statutes

694

CHAPTEE

LIY.Pawnsor Pledges

Statutory provisions in respect to the subject of

of the Territory of Arizona relating to Pledges and Pawnbrokingof the several States

Laws Laws699

upon the

subject, excepting those of

New York andtwo preceding

the

New

England

States,

which

are considered in the'

chapters

PARTTHELA\A^

III.

OF MARITIME LOANS.

CHAPTEEAntiquity of Maritime Loanssubject

LV.

Texts of the Homan Law relating to the Definition, legality and nature of a Mai'ilime Loan The constituents of a Bottomry contract Difference between Bottomry, Loan, Partnership and Insurance Form of a contract of Maritime Loan

715

TABLE OF CONTENTS.

17

CHAPTER

LVI.FAGS.it

Maritime Interest General rules in respect to

Eate

of Maritime

Interest Common legal interest The French decisions upon the subject

721

CHAPTER

LVII.the

Who may be parties to a Maritime Loan Whensame by the owner of a vesselBespondeutia

owner

is

bound by

the acts of the master of a vessel Of Bottomry

by the master The

Difference

between Bottomry and728

CHAPTER

LVIII.

What may be pledged in a Maritime Loan What may be lent at Maritime Consequence if there happens to be risk Loan, how to be employed

no

risk

The

case of a fraudulent borrower

Proof of the shipment 742

Loan,

how employed

CHAPTERRisks and losses borne

LIX.Loan

by

the lenders in cases of Maritimeliy

Lossesof

and average occasionedrisks of the seaperil

the perils of the sea

Lenders

bear only the

Loan

for the

voyage or a limited time

Places

and change of the ship

749

CHAPTERThe nature of Bottomrymoneysare to be paidbills

LX.

Where and in what manner Maritime Limitations of actions for the recovery of the same Rule in respect to security in such cases Extinction of the contract of Bottomry Cases illustrating the subject:

755

CHAPTERLien of the lender upon thePriority of lienseffects at risk

LXI.

upon the cargo3

Priority of liens on the ship Principles applicable to Maritimeliens,

766

18

TABLJS OF CONTENTS.

CHAPTEEThe Bottomiy bond

LXII.PAGE.effectit

Requisites of of Form, interpretation and Other security may be taken with the Botthe contract of Bottomry tomry contract The lender's remedy in case of Maritime Loans Theform of the decreein

Admiralty

776

CHAPTEE LXin.Somepoints respecting Maritime

Loans

settled

by

authority, promiscu-

ously stated

785

CHAPTEE LXIV.Translation of the secondtitle

of the twenty-second book of the Digests, and

of the twenty-third

title

of the fourth

book of the Code, eachfifth title

entitled

De798

Nautico Poenore Translation of the

of the third

book of the;.

French Ordinance concerning the Marine

.

INDEX TO CASESA.Abeyv. Eapelye Abraham v. BrownPAOB.344,350, 387

CITED.PASE,

467665

Adams v. Clazton Agnew V. McElhan Agricnltoral Bank v. Ainsworth V. BowenAldrich

478Bissell

Colby Bailey V. Tucker Bakewellv. Ellsworth Baldwin, Bx parteBaileyV.

697565

538

663126 230 85 597 530

166

Baldwin

v.

LambAddy

618 234558,587. 689

Ballard v.

Reynolds Allen T.Dykera Allen V. Fergnsonv.

Balmev. WomboughBaltimore Ins. Co. v. Dalrymple Bancroft v. Coueen Bandel y. Isaac

457 473 785 667656739, 774

Mapes Allen V. Newbniy Ames V. WentworthAllenV.

460etc.,

Bank

of Old

Bominion

v.

Debuque,

R.S.COBanksT. McLellan Banks V. Van AntwerpBarbara,

614 414 264

Amphlets,

Ex

parte

Anasfasia, Freight

Money ot

Anderson v. Maltby Andrews v. Herriot Andrews v. Jones Andrews v. Pond Androscoggin E. E. Co.

18681

Thev.

785

Barbe, qui tam,

Parker

453664

13079, 88, 147v.

Barclay, Ex parte

Barclay

V. v.

WalmsbyCalhoun

256406 664 363 684 519 160 567

Auburn Bank.. 576739,776, 786231764, 765

Barkus

AnnC. Piatt, The AnonymousAppletonV.

Artenm v.

Crowninshield Williams

Bx parte Bamet v. Stone Barr v. KaneBarnard,

661

Barrettv. ColeBarrettov.

Archer V. Putnam Archibald v. Thomas Arendale v. MorganAriadne, The Armon v. Delamirlc Atkinson v. ManksAtlantic Ins. Co. v. ConradAtlantic,' . .

313233, 236 620, 556

Snowden

788643671. .

775, 781

Th

739796

Barrow V. Coles Barrow v. Paxton Barrow v. Rhinelander Bartholbmew V. Taw Bartlett v. Johnson Bai'tlett V. Viner Bassange v. RossV. Shute Battyv.Lloyd

533412, 613

4416!2

374

354 430179159, 170, 332,

Atlas.The

Battle

Anburtv.Maze Augusta, Bank of, Augusta, The Aurora v. Cobb Aurora, The

374T. Earle

80788, 794

676731

Buck v. Fanlam Beach t. Fulton Bank Beadle V. MunsonBaxter Baxterv.

686 464141

,

,

Austin v. Chittenden Austin V. Fuller Austin V. Harrington

410469170, 332

Beardslee

v.

Eichardson

638125, 141

Beckwithv. Windsor Mannf. Co.,..,. Bedell t. Hoffman

671

B.Badger,

Ext.

parte.

663

The Duke of Bedo T. Sanderson Beemanr. Lawton Beetev. Bidgood Belfast, The Belgin v. The Sloop RainbowBedford,Bell T. Cfilhown

,

785

324519 114785^

741

Badlam

Uaker.

697

g26

20BeUT.Day BcUv.HnntBenT.Kice BeUv. Scott Bellingerv. Edwards Belmont Branch Bank t. HogeBennett,

INDEX TO OASESPASE.169, 170

CITED.

Brown

T.

WatersV.

890 557 186 597

671847, 268

Brownell

Hawkins

273 339

Brammel v. Enders Brysonv. Eayner BuckT. Fulton BankBuckingham T. McLean Buckley v.GnUdbankBucklin V.MillardBullard T. Eaynor

472145106, 230108, 831

418 660408,

Ez

parte

Berdan

V.

Sedgwick

418612

Berlin 7.

Eddy.-

412, 414, 439

Best T. Hayes Bevan, Ex parte,Billingsbyv. DeanBillingtonv,Bills V.

673241141, 21B

BullockT. Boyd Burbridge V. Cotton

418188

Burden

Wagoner

409 662 664 446 473.... 770, 771

139 Parry BurdnsantT. Commercial Bank of Natchez, 314Y.

Smith Birdwoodv. RaphaelBissellT. Kellogg

Burke v. Avery Burke v. Parker Burke v. The M. P. EichBurnett,

412308734, 735, 768, 775

Blackv. Hightown Blaine v. The Ship Charles Carter Blandy v. Allan

Ex parteBignold

6S7374

Bursley

V.

630

Blascom v. Broadway Bank Blexamv. SanndersBlockV.

509561

Burt V.Baker Burton V. Baker Busley V.Finn

467120

237106, 230

StateV.

469359Ins.

Blodgett

WadhamsThe SouthernCo

Bloomfield v.

781

Bush V. Buckingham Bushv. Fearon Bush V.LyonButler V. Miller Butterworthv. O'Briau

780546551

Bpdby V. Keynolds Bodenhamner v. NewsonBolander v. Getz Boldero v. Jackson Bonner v. Gregg

643519 667

425386659185,

BntterworthButton, tu

y.

312

re.,

Pearce Clanghton

467 518108, 231 261, 470y.

Bonsey v. Aunce Booth V. Cook Booth V. SwezeyBorrodaile, qui tarn,

Button Button

V.

V.

Dawnham Downholm^

718286

ButtsT.Bacon

348

Middleton

453731

Boston,

The

Botsford V. Sanford Bottv. McCoy

898 525'.

Boughton T. Bruce ^owie v. Napier Bowman v. Malcolm Bpyerv. EdwardsBradbury V. Waginhorst Braddock v. Smith Bradgerv. Shaw...; Bfakely V. Tuttle Brannockv. Brannock Brassv. Worth BraynardT. Hoppock^rewster v. Hartley

434524

Cabot BankCabot,

V.

Badman

666771

The

662

Cabotv. Walker

248673

83380 673661

Cadyv.Potter

Gimon CaUahanv. ShawCaiuv.

410348, 421

.

ggo 400 593288 508347,897, 405

Campbell v. Jones Campbellv. McHarg

602

848676

Bridge

T.

HubbardWalkerMiller

Bfirikenhoffv. Poote

347681

BrogdenBrolesky

Campbell V. Parker Campbell v. Sloan Cannon v. Bryer Garden v. Jvnes Garden V. Kelly Carlisle V. GrayCarlisle, qui tarn, vr

402 374621

413 425

V.V.

Treara

452 776

305663112i 407

Bromley v. Child Brooksv. Ayery

Garrington CartwrightCaruthersCastle,

v.v.

Pratt

Wilmerding

516461

Brown v. Brown v. Brown v. Brown V.

BarkhamBunals

V.

Humphrey

206 649 586

Case of

475790, 795

WardWarren

Catharine,

The

Oatlln V. Qunter

462, 470

609

Caurey V. Yates

658

INDEX TO CASUSPAGE.

CITED.

21PASE.636, 643

CavaneBsv, Nay...

426152, 164

CayngaCo. Bankv. Hnnt Central Bank T. St. John Chadbonrav. WattsChamberlain V. Dempsey Chamberlain v. McClong Chamberlin V. Townsend. .'. Chambersbnrg Ins. Co. T. Smith Chapman v. Brooks Chapman v. Clongh Chapman v. Gale Chapman t. Robertson Chapman v. Turner.

155

Cooper v.WUlmatt Cope V. Aldln Corcoran V. Powers

90 318

397414, 439

Coming V.

Sibley

457 666533, 647, 646, 670687, 686

361

Coming, Ex parte Cortelyou v. LansingCorvlev. Harris

419 680

675607 697 386 648132

Dilworth Cothrel v. Harrington Cottony. Dunham Couslandy. Davis Crane y. Hendricks Crane v. PrinceCostery.

159.

191

".

98655

94,120, 122

271

Chatham Bank V. Betts Chenango Bank t. Cnrtiss Chester V. Kingston BankChesterfield T. Janssen

Cranesleyy. Thornton

6721

217 620182, 193, 219

Childers v.

Dean

109, 236 400, 429, 441666, 667

Chinn

V.

Mitchell

Christie,

Ex parteT.

Crawford y. Johnson Crawford v. The Wmiam Fenn Crescent City Bank y. Carpenter Crlppin y. Heermance Crockery. Colwell Crocker v. CrockerCrowellv.

114 733 675 399

274 590399 567,...

ChurchiU

Circassian,

Hunt The85, 86,

417 736679

Delaplaine

CityBankv. PerkinsCity Savings

Gumming y. Brown Cummings y. WilliamsCnmmingsy. Wire Cunningham v. Hall. ;Curtis V. LeavittCurtis y. Martin

250, 252

Bank y. Bidwell Clapp V- HansonV.

87388

326

428.,417, 698

Clark ClarkClark

Dearborn

405

Clark -V.V.

Eamshaw

627461

459597

Hastings Clarkv. SheeT.

Cnshman

v.

49 143 421,

Sheehanv;

Clark V. Sisson

Cutcher v. Cuthbert y. Haley Cutlery. HowCutler y. Johnson

Hayes Coleman

410234,339, 39497, 211

Cleveland Cleveland

Loder

327661129338, 344, 387

9788, 114, 459:

v. State

Bank

CuUer y. WrightCuylery.

Cobbv. Titus Cockey v. Forrest Codd V. EathboneCoggsCoitV. V.

Sanf ord

153

264

Bernard, 494, 663, 617, 622, 626, 627637, 639, 683

D.Dabneyy. Green Dagal v. Simmons DagneU V. Wigley681 463157,

Humbert Coker V.GuyV.

647 107

Cole

Savage

406284, 386

Collier v. Nevlll

160 645

Collins v.

Makepeace

461

Columbia, etc.. Ass. v. Bellinger 313 Commercial Bank of New Orleans v. Martin, 610

Danbyv.Lamb Daniels, Ex parte Davenport, Ex parteDavis V. Pink Davis y. Garr. Davis V. Leslie Dayv. SwiftDazierv.'.

374657

Commonwealth v. Frost Comstock v. SmithCondit V. Baldwin Connecticut v. Jackson Conoverv. Van Materv. Atlantic Ins. Co Conyngham, Appeal of Cook V. Bank of Lexington Cookv. Barnes Cook v. Dyer

468, 471

596 268 782619

599104, 162, 164, 170

243171605, 749

Bray

473 660636

Conrad

696 314378, 400

Dean v. James Deanv. Keate Deever y. The Steamer Hope

784134, 141

409 666 626 619,.

De Forest V. Story Delano v. RoodDelaware Ins. Co,

304 779648, 648, 669

Cook, In Matter of Cooper V. Benton Cooper V. Ray

Cooper v. Tappan

289, 447

Demandray v. Demart v. Masser Denn v. Dodds

Archer Metcalfv.

613399

22Denyeon T.Botha Depay V.Clark Depuyv. HumphreyI>eBbroughv.

INDEX TO CASESPAGE.527580, 646

CITED.

Elliot Elliot

PASE,504

T.Lynch

384673 65989

Harris

V.Wood Ellis, Ex parte Ellis V. WansElmer V. Oakley Ely V. McClurgEmancipation, The Eneas v. The Charlotte Minerva

394 663

394169 360727, 788, 795

De Tasted, Ex parte De Wolf v. Johnson

Dm V. BllicottDiller v.

379 596 580406, 415

Bunbaker

738, 752

Dixv. Tally DixT. Van WjckDixie, Wallaston, Case of

Esmay y. FanningEsterly,

633380

Appeal of

456 648228659

Doakv.Bankof Doak V. Snapp

the State

Evans Evans Evans

V. V.

FreemanMartlett

526 566289, 361

V,

Negley

Dobson, Ex parte Donald V. Suckling.'

572

Ewlng V. Howard Exeter Bank V. Gordon

463697

DonohoeDowdall

v.

Gamble;

680635, 636

Dooman V. JenkinsV.

Lenox

98344, 419

Dowev. Schutt iDowell v. Vannoy Dowler v. CnshmanDownes, Ex parte Dowthorpc, The

354, 471'667

Fairhaven, ITheFaithful,

792

657 793

The 788, 739, 752, 782, Drake v. Latham Draper v. Emerson Drew T. Power Dry Dock Bank v. Am. Life Ins. and T. Co.,Draco,

787380

The 797 Farmer's Loan and T. Co, v. Carroll 317 Farmers' and Mechanics' Bank v. Joslyn.. 398Farr v. Ward Faulknerv. Hill Fawcettv. Feame672605 662463

410 296121

307, 367

Fay V, Grimstead Fayv.LovejoyFellows

.

237, 430

Duell v. Cndlipp

560

Dunham v. Dey Dunham T. GouldDnnningv. Merrill Dunscomb t> Bunker Durant v. Einstein Durham v. Tucker Dnrkeev. City BankDyett, In Matter of

27243, 64, 323346, 396

349, 388, 404

652

V. Commissioners, etc, of Oneida, 165 Ferguson v. Hamilton." 419 Ferguson T. Spring 198 Ferguson V. Sntphen 305 Ferrallv. Shaen 339 Ferrierv. Scott's Adm'rs 355

461

336, 458

Ferris v. Cravpford Fielder v. Vamer

4Q8 407189 636624, 625, 639

613 689191

Finch, Case of

Dykers

v.

AllenCockrill

Finn

v. Brittleston

Dymonds v.

Finuecane v. Small Finney v. AckermanFJrst, etc.,

380 508 254v.91^

First

Bankv.Nelson National Bank V. OwenNational

E.Eagle Bank of Kochester Eagleson v. Shotwellt.

First

Bank

of

Whitehall

LambRigney..^^

92

163301

Eastman

v.

Avery

519 335138 400

Fisher V. Anderson Fishery. Bradford Fisher V, Fisher Fitch V. Rochef ort

S14681

58I688, 690

East Elver Bank v. Hoyt Eaton V. Alger Edhel V. Stamford

FitzsimmonsFlartyv.

v. Baum Odbum v.

871, 362

493156

Flecknor

Edward Oliver, The Edwards v. Skering Ehringham V. Ford Eichelberger v. Murdock Eldridge V. Reed Elephanta, The Elliot V. Armstrong

United States Bank

793348

Flemming

v.

MuUegan

93ggg525, 530

354599igg

Fletcher v. Dickinson Fletcher v. HeathFletcher V. Tayleur Fletcher v. Troy Savings Flight V. Chaplin

645

Bank

671134

7g6g46

Flint V. Schomberg

138

INDEX TO CASESPASE.

CITED.

23PAQB.697463

Flowneyv. Milling...FlowersV.

597648807, 365

Sproule

Goss v. Emerson Gould V. Homer

Edwards Foltzv.May Poote V. Brownffloyer V.

340 612636

Gower v. Carter GrandGulf Bank V. ArcherGrantV. Holdeu Grantham v. Hawley

^14 314609 506

Foote T. Storrs Forbes T. Brig Hannah Foster t. Essex BankFoster, j:x parte

7176S5

667 193731636, 642

The Gratitudine, The Gray v. BrownGrapeshot,

735741

409777, 782

Fonntainv. Grymes

Foxv.HoltFranklin T. Neate Franklin Ins, Co. v. Lord

Greeley V. -Smith Greeley v. Waterhouse

775 697405 413

747

Fredwlck V. Lookup French V. ShotweUFuller, Case of

457405190

Green V. Graham Green V.Kemp...' Green V. MorseGreenfield v.

Dean

of

Windsoretc.,

498657, 658

Greenwood,Griflfin v.

Falton Bank v. Beach Fnrberv. Stnrmy

464673 786

Ex parte New Jersey,

Co

305 679174551, 633

Grifin V. Eogers

Fnmissv. TheMagonn

Grigg V. Stoker Griswold v. JacksonGrose,

Ex parte

656330408, 460

G.GabhartT.

Gmbb V.461

Brooke Gunnison v. Gregg

Sorrels

Bnckley 553 Gaitten v. Fanners' and Mechanics' Bank of Georgetown 833 Galloway T. Logan 325 , Galln.Bx parte.. 657, 658 Gambrilv. Doe 141, 214 Gardner v. Lachlan 660 Garnet v.Ferot 206 Garth v. Cooper 348V.

Gage

Hadden v. Innes Halev.HaysHalev.

436,

e08471 187

Hazilton

Hall V. Daggett Hall V. Earnest

283 35235,3

Gayv. MossGeffakenv.

674

Hall V. Haggart

Slingerlandv.

603593

Genet

v.

Georgia,

Howard Bank of,

Wilson Hamburg, TheHallV.

797 98

Lewinv.

'.

88

Hamerv.

Harrell

Gerard,

etc., Ins.

Co.

Marr

575 88734, 790

Gibb V. Tremont Gibbs V. The Texas Gibson v. Humphrey Gibson v. Philadelphia Ins. Co Gibson v. StevensGifford V.

644778

236 468 840 645,

WhitcombSewels

Gilbert

V.

Gillard v. Brittan

Gilpin

V.

Enderley

187

Hamilton V. La Grange Hamilton V. State Bank Hamlin v. Fitch HS,mmett v. Yea Hammond V. Bangs Hammond v. Hopping Hardy v. Peyton Harger v. McCuUough Hargreavee V. Hutchinson Harkins V. PetersonHaiTington v. Long Harrington v. SnyderHarris v.

242'.

595 263

105, 333, 334

396396, 469

631132, 327

431

686501

Giveans v. McMurtry Gladstone v. Birley Glasfnrd v. Laing Glennie v. Irwin

448;

511 331 648 673

626

PackwoodV.

625 687 346 663471

Harris v. Runuals

Glynn

v.

Lockev.

HarrisonHarrison,

Hannah

Gobebchiok, The

782129

Ex parte

GoldsmithGoldstein

Brown

v.

Goodale v. Goodrich v. Bnzzell Goodricks v. Taylor

Hart Richardson

642610 381,

Harrusharger v. Kinney Hart V. DraperHartleyv. V.

465 41464344d

Harrison

.

aoi

Hoare H^tshoru V. DavenportHartop

24Harvey V. Pocock Haebronck v. Vandervoort HaskinB V. Kelly HaskinBT. PattersonHaBsel, Case of

INDEX TO CASUSPAGE.645559, 648 551, 631

CITED.ThSS.

Hunter, Ex parte Hunter, The

656786, 788

Hurdv.HuntHurry V. The John and Alice Hutchinson V. Homer Hyatt T. Argenti

260TSl

534 374593 609166, 269

140

Hawks V. Drake Hawks v. Henchdifl Hawksv. WeaverHaynesv.

695

Foster

526139

Haynesv.Fry Haysv.Eiddle Hayward v. Le BaronHealdv. CareyHealingV. Cottrell

520228, 238

-635

Indomitable,International

The

796120

635

Ingallsv.Lee

Eeath V.Cook

236 476670

Bank

v.

Bradley

153296622, 636

Henry v. Bank of Salina Benry V.EddyHerdltv. Nast Herrickv. Jones

Irnhamv. ChildIsaaokV.

Clarke

44894

Herwig v. Oakley Hickman, Succession of Higtamanv. MolloyHilarity,

787 325 655739, 783

The

Hillegsburg Succession ofHills V. Smitli

618 697679, 611

Hilton V. Waring

HintonHirstv.

V.

Holliday

607 648 648 298

Hirst V. Peirse

TenEyck

Hogan V. Hansley Hoger V. Edwards Hogg V. EuffnerHolbrook y. Baker Holf ord V. Blatchf ord Holland v. Chambers Hollenbeckv. Sliults Holmesv.Hall

364114 505

459 473469.

Jacks V. Nichols Jackson v. Butler Jackson V. Dominick Jackson y. Passitt Jackson v. Henry Jackson Y. Jones Jackson V. Smith Jackson V. Shawl Jackson V. Tnttle Jacmel Packet, The Jacobs V. Latour James v. Jayner

278-280, 336, 337

649

395 419394 396

470638, 703

406731, 735

556 427505

680 k54

Warren Jane, TheJamesv.

788

Holmes HolmesHolroyd

v. v.

WetmoreWilliams

418661

v. Gwynne Homes v. Crane Hope V. Smith

554391

213 Lewis Jarvis V. Kogers 524,565,574, 646 551 Jenkins V. Jones Jenkins v. Nat. Village Bank of Bowdoin-

Janson

v.

hamJennison v. Parker Jerusalem, The Jewel V. Wright

621 611

HopkinsHopley,

v.

Baker.'

172659

Ex parte

770,782, 78387

Horton V. Earl of Devon Horton y. Holliday Horton v. Moot Hosford V.Nichols Houghton V. Payn Howe V. Parker Hbwesv.Ball Howlqnsv. Bennet Huling V. Drexel

672647

18S,

Humphrey

v.

Pearce

;

Hunsacker v. Sturges Hunt V. Acre

Johnson V. King Johnson v. Morley 459 Johnson v. Shippen 391 Johnsonv. Stear 538 Jones V. Baldwin 669 Jones V. Berryhill 200 Jones V. Gibbons 271 Jones V. Hawkins 391 Jones V. Hubbard 632 Jones V. Richardson 448 Jonesv. Smith289

94 359786573, 644-

620 240 660 680 218511

648 174220

Hunt

V.

Ten Eyckparte, re

622

Joyv.KentJudyv. Girard

Hunt,

Ez

Amer

666

INDEX TO CASESK.BCalorama,

CITED.

25PAGE.88663

Paqb.733V3&

The Kathleen, The Kay V. Whitaker Keane v. BrandonV.

.

LeeLee,

V.

LelleckV.

Ex parteV.

415.'

427661

Keepland,Kellogg

Ex parte. In Adams

re

Clapham

402 243 793B47, 553, 559, 648, 650

Kellogg T. Hlckok Kelly V. Cashing Kemp V. Westhrook, 540, Kendall v. Rohcrtaon

343243658, 664233, 387

Kennon

V.

Dicken

Horton Evans Lelandv. Medora Levy V. Gadsby Lewis V. Graham Lewis V. Hancock Lewis, Exparte Lickbarrowv. Mason Lightf oot. In reLefarge

410568727, 777

Legg

106,331, 555

614

793 770524, 666

663661

Kensington,

Ex

parte

Lilburne,

The

Kent V.Walton Kenyon V. Smith Ketchum v. Barber Kentgen V. ParksKilbournv. Bradley Kimball V. Hildreth Kinder V.Shaw King V. Beard*

471116, 117, 272

470 396 675 B24

673 Lindsay v. Barrow 98 Lindsay v. Sharp 478 Livingston v. Indianapolis Ins. Co 340 Lloydv. Keech 94^203,210, 434 Lloydv. Scott 645 Lockley V. Pye

687465192

Kingv. Clifton Kingv. Drury King V. Green

Lockwood V. Ewen Lockwood V. Mitchell Longv. Storie Long V. WhartonLong, Case of Loomis V. Eaton Louisiana State Bank Loveday, Case of Lovett V. Diinond

647

428 210

174 466 406v.

653 647610, 680

Kingv. HutchiuBEuddick Kitchel V. SchenckKiserV.

Gaiennie

680

118 598 625

478406, 410

Kitchra, Estate of

Knapp

V.

Grayson

Knights Knights

V.V.

Putnam The AttUaCady

840 790551

Lowv. Prichard Lowv. Waller Lncketts v. Townsend.Lnln,The Lushingtouv.

326 300 594738, 794

Kortright

v.

Knhnerv. Butler Xurz y. Holbrook Kyneston v. Crouch

448 463662

Waller

183 561

Lylev.Barker

Lynde

V.

Staats

299

L.

M.663

LacMngton, Ex parte Laddv. Wiggin Lamigov. Gould Lampleigh v. Braithwaite Lane v. Bailey Lane v. LoseeLansattv.

409184

544684

334524 330729, 734

Lippencott

Macomber v. Dunham Macomber v. Parker Maddock V. Hammett Maddockv. Eumhall Madonna, The Madora, The Ship Maine Bank v. Butts

352,510, 512,

469654

334 220771771, 788 109, 156, 275i... 541

Large

v.

Passmore

Lavinia, The, v. Barclay

Law V.MerrillLawley v. Hooper Lawrence v. Cowles Lawrence v. Mathews Learoyd V. BobinsonLeavittv.

357

296 215 677526118

De Lang

Malrs V. Taylor Maitland v. The Atlantic Mangue v. Haringhi Manners v. Postan Manney v. Stockton Manning v. Tyler MansBeld V. Ogle Marine Bank of Chicago v. Wright

776, 777

703

454429

462290

679143, 625

Le Blanc V. HarrisonLee V. Baldwin Lee V.Cass Lee V. Peckham

824619

Markham v. JaudonMarsh Marsh Marshv.

494, 513, 591, 593, 613

HoweLasherMartindale

455 402

v. v.

464 894

26MarshallT,

INDEX TO CASESPAGE.Birkensliaw454676 856

CITED.PASE.

Martin v. Creflltors 123, Martinv. Foster Martin V. Eeid Martinv. Somerville Water Power Co....MartiniseyV.

683531

Coles

B46

Monroe Bank y. Strong Moody V. Hawkins Moore V. Battle Moore v. Howland Moore, Ex'r. of, V. Vance Moran v. Mayor, etc., of Mobile;

396461, 471

31095, 117

346 625

Martinsville, First

Nat

Banli

of,

v.

Canat141

Mordecai

v.

Stewart

43095555

More

V,

Howland

Marvine V. Hymers Marvine V. McCullum Mary.Tlie Mary Ann, TlieMaryland,etc., Ins.

153,153, 235341

727,734,739,782792

Morehead V. Newell Morgan V. Fillmore Morgan v. Mechanics' Banking Ass Morgan V. Eavey

672262 669 400186 458

Co. v. Dalrymple

697286

MorganMorrel

Masonv. Abdy Mason v. Lordv. Drayton Matherv. Staples Matlock v. Mallory Matthews v. Coe Matthews V. Griffiths Manghan T. Walker

V. Tifton Morissetv. KingV.

415 467 5983S4

Fuller

Masters

Morrisy. FloydMorris, Executors of

407297 603.

412333465, 470

Company v. Fisher etc., Company V. Lewis Morrison v. McKijmon Morse T. HoveyMorris Canal, Morris Canal,etc.,

...

674

254441, 444

Maznzan

v.

MeadV.

122

Jerman McAllister, Appeal of McClure V. WilliamsMcAllister

408272,

396639

McCombie V. DaviesMcCraney v. Alden McGennes v. Hart McGraw v. Adams.

86, 90, 348, 398,

98, 325

Morse v. Bowland Morse v. Wilson Morse v. Woods Morton v. Bramner Moses v. Cochrane Moss V. Bowland's Ex'rs Mowry V. Bishop

402 285607, 697

686562, 564

402243, 244 601, 677

672671671

Mowry v. WoodNewark Savings Inst Mnmford v. Am. Life Ins. and TrustMuirV.

McHenry v. Hazard

171Co., 121

McKay

v.

Draper

McEenna, Ex parte McLamore v. HawkinsMcNeil McNeilMeagoeV. V.

527559

366

Munn v. Commission CoMurphy V.State

341

Fourth Nat. Bank, N. Tenth Nat. Bank

T

590

478

600661

Mead v. Brown v. Simmons Mechanics' Bank v. EdwardsMeechv. StoverMelville v.Merrills v.

329. .

407, 409

Murray v. Barney Murray v. Harding MuBselman v. McElhenny Myttoon v. Cock

417108, 195, 3.31

391

634

424 362 783356, 469

Am.

Benefit Ass

Menstonev. Gibbins

LawLe Blanc

N.Naish, Matter of,Nasie, Case of197

Merritt v. Burton

148

Merville

v.

427 244675614, 670

Meyer

v.

City of Muscatine

454v.

Meyerstaiu

v. Barber Middlesex Bank v. Minot Miller v. Kerr

Bank of Metropolis National Ins. Co. v. SackettNational

Orcutt

460340641, 643

Nanman v.Navulshaw

Caldwellv.

411736, 737

Miller v.

The Rebecca

Brownrigg

626 787 579 577

Miller v. Tiffany

83'.

Milliken v.Mitchell

Dehon

gge

Naylor v. Baltzell Nelson v. Edwards Nelson v. Wellington

V. Griffeth

805343,

Mitchell V. Oakley Mitchell V. Preston

The Nevison V. WhitbyNelson,

786,788,790, 794106, 230

305666 631

New Bedford SavingsBank Newbold v. Wright Newell V. DotyNewellV. Pratt

Inst. v.

Fair

Winslow Molton V. Camroux Monk V. Hovey Monroe v. DouglassMitchell y.

Haven668 524341524

40486

INDEX TO CASESPAGB.

CITED.

27PASS.738,739, 796

New Jersey,Newlandst.

etc.,

Co. v. Turner

469

Panama, TheParker viBrancker Parker V. Cousins ...^ Parker V. Gillies Parker V. Linnett

Chalmers' Trustees

383

596 400691

Newman v. Kershaw Newman v. Kerson New Orleans Gas, etc.,

4G590 Co. v. Dudley 459

672380, 449

NewsoQ V. Thornton Newton v. Moody New York Dry Dock Bank v. Am. L. and T. Co New York Firemen's Ins. Co. v. ElyNewYorkFiremen'sIns. Co.v.

534673Ins.

306 236

Parmelee v. Lawrence Parr V. Eleasen ParshaU V. Bggart Parsons v. OvermirePatapsco,

339494, 516/.. . .

511

ThePiercev.

733, 794

SturgiB,^107, 156S3S, 237

Patchin

v.

651

Paterson

Task

523!

New York Life Ins. and T. Co. v. Beete. New York Mutual Life Ins. Co. v. Bowen,. .

318

Pathonier v.

Dawson

683

414427 429126 206 461

Nicholas Nicholas

v.

Nicholas V.v.

Bellows Skeel Fearson

Campbell Patton V. The Eandolph.. Paullv.Best Payne v. Watt^raonv.

Patomi

672731, 738

663

355500 400 630691685, 689

Nichols

V.

Maynard

Paynev. WoodhullPearson V. Bailey Peers v. Sampson Peet V.Baxter Pennell v. Attenborongh Pennsylvania Ins. Co. v. Duval People V. Adriene Perkins v. Conant. .. Perrinev. HotchkissPerrineV.

Nichols V. Stewart Nicholson v. Oooch

663688 516

Nicklssonv. Trotter

Nivan v. Roup Noblev. Walker Noland V. Clark North V. Sergeant Nottebohn v. Mass Nunn, Ex parte

447 610165 599657.

778380 429

273443 631 603

Stryker

Nuova Loanese, The

791

PerryPerry

v.V.

Beardslee

Roberts

Peters v. Mortimer

444 468

o.

Pettingillv.

Brown

Pettitt V. First, etc..

Bank

509, 558, 674

OdiomeOgleV.

V.

Maxeyy.

524

Petty

V. Overalletc.,

625

Atkinson Ohio and Miss. B. B. Co.Oliverv. OliverOliver Lee'sOlivia,

565

Philanthropic,Phillips V. Phillips V.

Ass. v.

McKnight,

425

Kasson

41445, 382

Belden Jones

412644 393

Bank

v.

Walbridge, 161,

152, 153

334

TheV.

797

Oologardt

The Anna

788741, 745

Oralia,The

Pickaway Co. Bank y. Prather Pickens v. Yarborough Pickeringv. Burk Pigot V. Cubley Pike V. LudwellPlants, etc., Co. v. Falvey

620523, 562

695

219,310679636

Orange Bank v. ColbyOriental,

274

The

737237, 238

Piatt V. Hibbard

Ottov. Durege Owen V. Barrow

468

P.PackardPacket,

Pomeroy v. Ainsworth Pope V. Nickerson Porter v. Mount Portland Bank V. Stone Post V. Bank of TJticaPost V. Dart Powell V. Henry Powell V. Jones PowellPratt

88782374, 423, 424, 471

152409, 438405, 415

The Louisa Thev.

7757.34,785, 786

620

266347, 386

Page, Case of

432 627

Paley. Leash Palen V, Johnson Pallard V. Baylor Pallardv. Scholey

Waters Powers V. WatersV.V.

34185, 395

424212 307139, 329

Adams

Pratt V. WilleyPrescott,

308.".

Ex parte.

657338, 396

Palmer v. Baker Palmer V. Lord

Price V. Lyons Bank' Price V. PhiUips

423

668

28Exv.v.

INDEX TO CASESFASE.

CITED.

Price,

parte

Pridely

Hose

Prother

Fnrman

Pusey

V.

Pasey

Qnackenbnsli

T.

Leonard

Queen

V.

Dy

Quickv. Grant Quiner t. Callender

Robinson v. Cropsey Robinson v. Hnrley 440 Robinsonv. Loomis 649 Robinson v. Macdonald Rock, etc., Bank v. WooUscropt Rockwell V. Charles Rogers v. Buckingham Rogers T. Sample Rosa V. Bntterfieia 186 Rose T. Dickson 475 Ross V. Ackerman 187 Ross V.Hill 384 Ross V. Norvell Eowe V. BeUaseys660

366, 595

498

271

506336 224

172 214413, 417302, 312

470642681

203

Eowe V. Gunson

297 459 660 774791621

REahlT.ParrBamsdell v. Morgan Bandall v. Peters751331, 433

Rowev.

Phillips

Royal V. Rowles Royal Arch, The Royal Stuart, The Rozet V. McOlellan

603592410, 43094, 119

Rankin

v.

McCnllougli

Ruchu

V.

ConynghamAmbler

734

KansomEapalye

v. v.

Hays AndersonVance

Rnddel

V.

447 347303, 339

Ruddock V. BoydEnffln V. Armstrong

Ratcliff V. Davis Hatcliff V.

533,636,642, 669546

Rawliueon v. Pearson Eeade v. The Commercial Ins. Go Beading V. WestonRebecca, Tile

655733

Runyon V. Mercereaux Rutherford V. Smith Rutland Bankv.WoodmffByeUv.Rolle

554 463

597507,517, 554

406771681331, 347 608, 518

Reed Reed

v.V.

JewellSmitli

S.

Beeves V. Cappen Reeves v. Smith

SaflbrdT.VaUSalacia,TheSalarte v. Melville

408774 169281

610672686

Regan V. Serle Regina V. Goodbum Begina v. Mandee.'

662 662 286

Regina V. Radnitz Renolds V. Clayton Rex T. Gilham Rex V. Robinson Rex V. Upton Rexford v. WidgenRice Ricev.V.

467476 457 439611 129

Bank V. Alvord Salina Bank V. Henry Sanderson V. Warner Sandsv.Chubb Sandusky Bank v. ScovilleSalina

437382

407 360 340545 427

Benedict

Mather Rice V. Welling Richv. TappingRichards V. Brown Richardson v. Brown Richardson v. Crandall Ringgoldv. Binggold

Sanduvien V. Brunner Saunders v. Davis Saunders v. Lambert Sawyer v. Ghan Schalk V. Harmon

174613

400 30829398, 325

Schemerhom V. Am. LiTe Ins. and T. Schemerhom v. TalmanSchmidt V. BloodSchoolev. Sail Schoopv. ClarkeSchroeppelScofleldv.V.

Co.. 321323, 489

625606 268348, 414, 431, 432, 433

654 622235...

Coming....

Robbing

v.

Dillaye

Day

3843"

Roberts V. Sykes Roberts v. Thompson Roberts v. Tremange Roberts v. Wyatt Robertson V. Kensington Robertson, In re

650 631

Scott

V.

Lewisv.

3

Scott V. Lloj'd

203, 296, 361

100, 291

Seawell

Shonberger

426 607 327128349, 860

517 625 662

Robinson

V.

Bland

80

Munson Seneca Co. Bank v. Schermerhorn Seymour V. Marvin 302, 312, Seymour v. StrongSellick V.'.

INDEX TO CASESPAQB.Shackell v.

CITED.

29PAQB.426,

West

684, 635

ShankT. Payee Shanksv. KennedySharpleyV.

466

803

Hunt

VH671, 678

ShawT. Coster Shaw V. SpencerSbepherd,

B31

Ex partePartridge

656527

Sheppard v. Union Bank of LondonShei'manv.

672 741

Ship Packet, The

Shuck

V.

WrightShnfelty.

814 405389121 609

Shnfelt

T.

SimpsonSlevin v.

Fullenwider

Stevens y. Lincoln Stevens v. Wilson Stevenson y. Newerham Stewart y. Drake Stieiv.Hart Stocknerv. Bthnall Stoker v. Cogswell Stonev. Ludderdale Stone y. McConnell Stoney v. Am. Life Ins. Co Storery. Coe Story y. Eimbrongh Strettonv. TaylorStribbling

428529

663 594537

836 649^.

498401

406263, 471

380

465,474156,

Sizerv.Miller

v.Bauk

818287673530

MorrowDuff*',

Stuart v. Mecb. and Farmers'

Bank

SloBsen

V.

268

Sturgess

Smalley V. Doughty Smead V. Green Smedberg v. Whittlesey

401,464427388, 389

v. Claude Sturtevant v. Jaques

Styartv. Bowland

603 649

Smedbury v. Simpson Smilax, The

389.'

788109, 238

Smith T. Beech Smith V. Cooper Smith V. HolUster Smith V. Marvin Smith V. Nichols Smith V.Payne Smith V. Prager Smith V. Eobinson Smith V. Sasser Smith V. Silvers Smith T. Stoddard Smith T. The MuncU Nat. Bank Smith, Ex parte. In re Harvey Smith and Strickland, Ex parte Smousev. Bail

Summerset v. Cookson Sumner v. Hamlet Smnnerv. People Snydam y. Booth

517217,

8W878

34840195, 128

Snydam y.Swainston

Westfally.

118,872, 878

Clay

662 362 327638,

890 345

Swartwont y. Payne Sweet v. SpencerSwettv. Brown

555489

467430 519141

SwinneySurtzV.

v. State

Platz

416 343

Sylvester v.

Swan

428141

658 664621634, 568

Taggart

y.

Packardy. Pell

550 883 190

TahnadgeTartar,

Snow V. Fourth,

etc.,

Bank

Tanfield y. Finch

South Sea Co. v. Duncomb Spain V.Hamilton Spalding V. ReedingSpear,

606100, 448

The

786,788818, 310

666

Ex parte

667848,250, 254208,209, 364789, 795

Spencerv. TildenSpurrier V. MayosB

Tate y. Wellings Taylor v. Cheever Taylor y. Chester Taylor v. Cobb Taylory. DanielsTaylory.

680

598 456 398 585602

StainbankStanley StanleySt. v.V.

Shepard JonesV.

Freemai;v.

502

Thallhimer

Brinkerhoff.

Whitney

398 794 505 620 880374584, 615

Thayer y. Dwight

598

Jago de Cuba, The St. Johnv. O'Connel St. Losky V. Davidson State v. AuditorState V. Fletcher

Thomas

V.

Gettings

735181, 286

Thotoas-y. Murray

SteamsT. Marsh Steelev. WhippleStein V. Indianapolis,etc.,

131, 328, 347

Ass

410 408

Stephens v. Muir Stephens V. Watson Sterling v. Janson Stevens T.BeU Stevens y. Hurlbert Bank.

475

S93.... :

647

Thomas v. Watson Thompsony. Andrews Thompson y. Bury Thompson y. Nesbit Thompsony. Patrick Thompsony. Pnmell Thompson y. VanVechten Thomson y. Powles Thomson y. The Koyal Ins. Co Thomdikev. Stone

472508 441

304662

474

414

84766178, 738

596, 630

Thome

y.

Tilbnry

668

30Thorntonrrhorp V.v.

INDEX TO GASESPAez.

CITED.FASX.

Bank of Washington EnkBv.

166 9895, 136

Van Amringe t. PeabodyVanderzee T. Willis Vanderwater T. Yankee Blade Van Duzer v. Howe Van Herbuck, Case ofVaupell T.

534648,655, 669

ThurstonTlbbeta

Cornell

775118, 132

v.

Flanders

696

TomkinsT. Bemet Tompkins V. Hill Tompkins v. SaltmarshTooleV.

49439

466899

Woodward

629332 457663308, 388, 396

Vaux T. AustinVest T.CraigVibUia,

472 582741233, 347, 398

Topclif

V.

Stephen WallerV.

TheT.

Topping

Keysell

TorryT. Grant Towsler V. Durkee Treadwell V. Davis Tregoing v. AttenboronghTrotterv. CrockettTrotter V. Curtis

Dickson Vilas T.JonesVickeryVirgin,

476

336552,559, 600431,

The Ship, VroomT. Ditmas

t.

Vyfhius

771, 786

459

668

6071S8

Troughton,

Ex parte

658 390 530

w.WadeT.

Wilson

451211

Trontman V. Bamett Tmllv. TrullTruscottv. Davis

419445 673 342

Truxworth V. Moore Tucker v. Morris Taf ts V. ShepafdTnllet V. Linfleld

Wadsworth T. Champion WadsworthT. Thompson Waite T. Windham, etc., Co Wake.Exparte Wakeman v. GradyWalcott t: Kirth WaldreuT. Chamberlain

682325 655 612 519731

456784 498

Tunno v. The MaryTunstallv. v.

BoothbyShip Enterprise

Turnbull

718228 447

Tnrney

v.

State

Bank

Tnmongh v. CooperTurquandv. Mosedon Turton v. BensonTnthill v. Davis

690206

WalesV. Webb Walker T. Staples Wallace t. Bank of Washington Ward T. Macaulay Ware t. Bennett Warev.Otis

396675, 681

347'. . .

561

425695

847,394211655, 659

Ware v. ThompsonWarren T. Crabtree Washburn T. Pond Washington Bank T. Arthur Waterman T. BrownWatrissT.

448397

Tuttle V. Clark

Twogood, Ex parteTylerV.

696313 660 427

Gates

243

Pierce

u.Udall T.Walton Union Bank T. Bell Union Bank of Rochester v. Gregory United States v. Athens Armory662

Wave, The

790 653669 793 349406, 413

Way T. Foster Webb T. CowdellWebster v. Seekamp WeinserT. Shelton WellST. Chapman Wells T.FosterWellsT.

448154

380 672 104323, 877

United States T. Victor United States Bank V. Lloyd United States Bank v. Owens United States Bank v. Waggoner Urqnhart v. Mdver Ushonse, Ex parte

300 209 392661

Girling

Wendlebone t. ParksWensley, Ex parte West T. Skip Western Reserve Bank Westzinthns, In re Wheaton T. Hibbard

222524, 539

661t. Potter

660156

221

UtIcaBank

v.

Wager

566422,423, 424

Utica Ins. Co. v. Bloodgood Utlca Ins. Co. T. Cadwell

156 155

Wheaton T.May Wheeler v. NewbouldWbelpdale, Case of

183 879

396 254 555 662 680 656

V.Valentine T.Conner

Mason Valley Bank v. StrlbblingValettev.

Whipple T. Powers Whitaker t. Sumner T.Bartlett 143 White 680 White T. Phelps 312 Whitebread, Bx par^

INDEX TO CASESPAOS.Wbitehall, First Nut.

CITED.

81PASS. 214671

Bank

of, y.

Lamb,

91,

92 699575 343

Whitlock

V. Hoard Whitney V. Peaz Whitten v. Hayden

Wilsonv.Dean Wilson v. Duncan Wilson T. HarveyWilsonT. Little

274601, 608, 668, 660,

585388 3B8 649 240 678

Whitwell

V.

Brigliam

597, 599

Wing T. DunnWinserV.

Whitworth T. Adams Whitworth v. Yancey Wiley V. Crawford Wiley T.Yale WilkesT. Coffin Wilkie T. Brig St Fetre Willdnson T. Wilson William and Emeline, TheWilliams v. Archer Williams v. Pitzhugh ^Williams V. Fowler Williams v. Herron Williams T, House Williams v. Stoner Williams v. Tilt

127

Shelton..,'.

a

344 677 426471

Wood

T.

RowcliffeT.

Woodruff

Hurson

758791739, 777, 788

Woodworth v. Morris Wordworth v. Huntown Wrightv. BnndyWrightT. Wheeler Wylde T. Radford

449408

324628175

644446359

Wynne v.

Crosthwaite

327132

344 407392, 429

WilUamsT. WilsonWilliams,

Ex

parte

660621222, 601

Young T. Fletcher Young T. Miller Ysabel Boza, La Yuba, The

661 356'

794735

Williamson v. McClnro. Willonghby v. ComstockWillsT.

Murray.

670 471

z.Zephyr, The781

Wilmot

Manson

The Law

of Usury,

or Pledges, and Maritime Loans.

Pawns

I*ART

I.

OF THE LAW OF USURY.

CHAPTEE

I.

THE WOEDS DIFFBE IN THEIE DEFINITIONS OF USUET AND INTEREST OPINIONS EESPECTING THE MOEALITT OF TAKING INTBMEANING AT PEESENT, IT ANCIENTLY, THE PEAOTICE CONDEMNED EE8T

IS

APPEOTED.

UsuEY has been variously defined. The definition given to it by lexicographers is, "money paid for the use of money," or " interest ;". and such was the original signification of the word. The etymology of the words usury and interest is the same but, in modern law, the two words are quite difierent in their meaning.;

Interest

while Usury

premium allowed bylaw for the use of money; more for the use of money than the law allows, or the extortion of a sum beyond what is legal. Lord Bacon, in his able work on " Civil History," pronounces usury tois

the

is

the taking of

be " the bastard use of money."

Judge Blackstone

says

it is

" an

unlawful contract, upon the loan of money, to receive the same=again with exorbitant increase."(4 Black. Com., 156.).

Matthew

Bacon says, " Usury, in a strict sense, is a contract, upon the loan of money, to give the lender a certain profit for the use of it, upon all events, whether the borrower made any advantage of it, or the lender suffered any prejudice for the want of it, or whether it be paid on the day appointed or not" (6 Bac. Abr., Ut. ''Of Usury") and Judge Bouvier says, "Usury is the illegal profit which is required by the lender of a sum of money, from the borrower, for its use." The definitions by Blackstone (1 Bouv. Inst., 299.) and Bouvier give a fair idea of the meaning of the word according to its present use, though no more satisfactory, perhaps, than the;

one

first

above given.

The

true spirit of usury lies in taking an

unjust advantage of the necessities of the borrower.of simple interestis

The receiving

day

;

regarded both legal and moral at the present -while the taking of usury is considered by all ChristianIt is

nations an offense against the laws of morality and right.true that, in former times,

many good and

learned

men

pei:plexed

themselves and other people by raising doubts as to the propriety of requiring any eompeqsation for the use of money loaned.

" ;

3(5

LAW

OF VSURT.

These men made no distinction between this practice and usury; holding any increase of money to be indefensibly usurious. This view of the subject was taken at an early day by ecclesiasticalstigmatized the taking of interest as contrary to the divine law, and by the canons of the church it was forbidden and punished as sinful and against Scripture. Especially, in the darkwriters,

who

'

ages, when learning was confined to the monastery, and commerce was almost unknown, the severest denunciations were thundered by the church against the taking of simple interest, as a " horrible and damnable sin ;" and it was ranked with heresy, schism, incest and adultery, and punished by expulsion from the fold of the flock. This position was based upon the construction which they gave to the law of Moses among the Jews " If thy brother be waxen:

poor, and fallen in decay with thee, then thou shalt relieve

him

yea, though heie a, stranger, or a sojourner, that he may live with Take thou no usury of him, or- increase, but fear thy God, thee.

with thee. Thou shalt not give him " nor lend him thy victuals for increase thy money upon usury, "Thou shalt not lend upon usury to thy {Lev. XXV, 35-37).that thy brother

may

live

brother; usury of money, usury of victuals, usury of anything'

that

is

lent

upon usury.20).

Untoit

a stranger thou

usury, but unto thy brother thou shalt not lend

mayest lend upon upon usuryit

{Deut.

xxiii, 19,

But

has been observed, that the Mosaical

precept was clearly a political, and not a moral mandate, since

only prohibited the Jews from taking usury from their brethren, the

Jews, while, in express words,stranger;

it

permitted them to take

it

of a

proving that the taking of moderate usury, or a reward(for so the word signifies), is not, ipso facto, was allowed where any but an Israelite was Besides, many pious and learned men and commentait

for the use of

money

an oflcnse, sinceconcerned.tors

have expressed the opinion that usury, in the

strict

sense of

the word, was only unlawful, even

nated by oppression, crueltylittle

among the Jews, when contamior extortion. The Israelites were but

engaged in commerce, and their law was not only calculated, but intended, to keep them from mingling by any means withother nations.

Their land also was divided by

lot,

and they were

not allowed to alienate their inheritances.fore,

much

in the

way

of lending or

They were not, theretaking money upon interest,whichcases,

to

employ

in trade or

expend init

estates, in

and in

those of the like nature,

does not appear inconsistent with either

OPINIONS C0NCJSBNIN9 INTMBEST.

37

equity or law for the lender to receive a proportion of the profits from the borrower. And as the Jews were expressly permitted to

take interest of the gentiles,

it is

evident that increase on lent

money

is

not in

itself unjust, or

contrary to the divine law,

when

not attended by oppressive circumstances.interest

Besides, the taking of

would seem;

to

be sanctioned,it

or, rather,

not forbidden, in

remembered that our Lord, in the parable of the nobleman, declares to the servant that had received one talent and had hid it in the earth, so that it gainedthe ISTew Testamentfor

will be

nothing, "

Thou"

oughtest, therefore, to have put

my money to

the

exchangers, and then at

my

coming I should have received mine).

own with usurythis injunction

{Mat. xxv, 27

It is reverently suggested that

would not have been given, even parabolically, if it were immoral, or contrary to the law of Moses. In the middle ages, during the dark period of monkish superstition and civil tyranny, when commerce was at its lowest ebb on the continent of Europe, and in England itself, and what little there was of it was monopolized by the Jews and the Lombards, so enormous was the interest demanded for the use of money, that the business of the broker or money-lender was considered detestable, and this feeling gave rise to the maxim, ^'JJsuria " It is called usury, as though it dieiPur quasi ignus v/rens :",

were a consuming fire." The brokers, or usurers, during this period, were so cruel and oppressive that all interest on moneywas laid under a total interdict, and the traffic of the Lombards and Jews was everywhere considered odious and cruel. But when'men's minds began to bereal liberty revived,

more enlarged, when true religion and commerce grew again into credit, and againits

introduced with itselfloans

inseparable companion, the doctrine of

upon

interest.it

Anciently,

was held

in

England

to be absolutely unlawful for

a Christian to take any kind of usury or interest for the use of

money, and whoever was found guilty of so doing was liable to be punished by the censures of the church in his lifetime, and if after death it was found that the deceased had been a usurer while living, all his chattels were forfeited to the king and his landsescheated to the lord of the fee (5 Bac. Air.,tit.

"

Of Usury

at

Com.ful

Law ")

;

and even3*5.,

so late as the latter part of the sixteenth cen-

tury, the great English jurist.(2 Inst., 89;

Lord Coke, declared all usury unlaw-

151

).

But

fifty

years later. Sir

Matthew

38

I^-AW OJP

USURY.

Hale, another eminent English jurist, says that at common law tlie Jewish usury, which was forty per cent, was prohibited, and noother {Hard., 420); and very soon after the time of Sir Matthew it was generally agreed that the taking of a reasonable interest for the use of

Hale,

money wasit,

in itself lawful,

and that a covenant

or promise to pay

in consideration of the forbearance of a debt,

on the principle that one having an estate in money should be allowed to make a profit by it, as well as another having an estate in land, and that there was no reason why the might beinferred,

lender of

money should not make an advantage ofa statute

it

as well as

the borrower.

Indeed, in the thirteenth year of the reign of

Queen Elizabeth,

ing of interest, but restrained

was passed, which tolerated the receivit to ten pounds per cent and near;

the close of the last century. Dr. Paley, in his excellent and

standard treatise upon the Principles of Moral and Political Philosophy, emphatically declares that no reason exists in the law of

nature

why

a

man

should not be^paid for the lending of his

money

any other property into which the money might be conThe ancient verted (1 Paley' s Phil., Boston soh. ed., 108 )f Athenians held usury in great abhorrence, but they tolerated the taking of interest, which they fixed at rates deemed sufficient toas well as

money loaned, having respect which the money was to be applied.f Among the Eomans, during the Empire, the most simple interest was condemned by the clergy of the east and west. Cyprian, Lactantius, Ohrysostom, Gregory of Nyssa, Ambrose, Jerome, Augustine, and a host of councils and casuists, were unanimous in theirafford a fair profit for the use of the

to the object to

declarations against the practice

;

but the condemnation of the

statesmen, like Cato, Seneca and Plutarch, was of usury than of the practiceitself.

X

more of the abuse Usury was the inveterate" In 1546 a law was made for known in England. Forpreamble of this very law treats:

*Hume,merly+all

in his thirty-third oliapter of the History of England, says

fixing the interestiof

money

at ten per cent, the first legal interest

loans of that nature were regarded as usurious.

The

the interest of

money

as illegal

and criminal.";

by Plutarch, no restrictions upon the trade in money seem to have been enacted and Boeckh, the German philologist, in his graphic treatise upon ancient Athens, says " It is a glorious monument of the enlightened and commercial character of Greece, that she had no laws on the subject of usury that her trade in money, like the trade in everything else, was left wholly without legal restriction." X Calvin, Melancthon, Beza and other eminent reforiners, all give their views upon the practice of usury, that is, an oppressive or extortionate interest, which they severely condemn but nevertheless they express the opinion that the taking of a fair compensation for the use of money is both reasonable and lawful. (Ylde Calvin's Epist. "J)e Uswre ").Solon, the great lawgiver of Athens, recorded:

Among the laws of

;

;

OPINIONS CONCERNING INTMBEST,

39

grievance of the Eepublic, and was therefore discouraged by the Twelve Tables, and finally abolished by the clamors of the people.

But it was soon revived by their wants and their idleness, tolerated by the discretion of the praetors, and ultimately, in the Empire, it was determined by the Code of Justinian, in which the necessary rules {Vide 4 Gib. and restrictions in regard to it were inserted Rome, ly Mihnam,, 368 ). In the American States, it has never been against the policy ofthe country,or, at least, it

has not been for

many

generations, for

the lender to take simple interest for the use of the

money

loaned,

and the rate has been universally regulated by law. It must be' admitted, however, that at the present day there is a class of pseudo reformers, diminutive in numbers as yet, who advocate the doctrine that interest on money lent is extortion, and consequently Following the example of the comillegitimate and immoral.munists of Europe, these

men

declare that capital

is

of itselfprinci-

unproductive, and that labor alone has rights.

The same

ple leads to the conclusion, to which they hold, that a person

whois

lends to another a chattel for his use, has no right to call upon the

borrower for pay for the loanthat the article be returned in

;

all that

he can justly require

good condition. They insist that whether capital be represented by property or money, it is equally unjust to take interest for the use of it. These doctrines, to be sure, are put forth in the main by a few demagogues and agitators who subsist by fermenting the passions and prejudices of the lower orders of the people and yet they not unfrequently create distrust and inconvenience, especially in the manufacturing and mining districts of the country. But there is no probability that these ideas will ever become a part of the settled policy of any;

of the States, for the reason that the mercantile and agricultural

The make borrowing unavoidable, and without some profit allowed by law, few persons will be found who will lend. The public conscience "will, most likely, continue to regard the taking a recompense for the use of moneyclasses

must always be

hostile to

such a state of things.

necessity of individuals will always

loaned as neither oppressive nor immoral, and laws will continue to exist regulating the rate to be paid, in the absence of anyexpress bargain between the parties.

Though money wasit

origi-

nally used only for the purposes of exchange, yet the laws of everycivilized country

have for ages permitted

to be turned to the

: ;

40purposes ofprofit.

LAWAnd

Oil'

asuBy.of a moderate

that the allowance

in a interest tends greatly to the benefit of the public, especially from that generally trading country, is abundantly obvious acknowledged .principle, that commerce cannot subsist without

mutual and extensive credit. Unless money can be borrowed, trade cannot be carried on, and, as before hinted, if no premium be allowed for the hire of money, few persons can be found who will lend it, and the life of commerce will be entirely at an end.

But while the policy ofof

a reasonable

and

fair interest for the use

almost universally approved, the practice of usury, or the taking of more than the law allows for such use, is qiiite as The laws which regulate the rate of uniforinly condemned.

money

is

interest,

and prescribe the consequences of usury, are quitevarious, and a correct understanding of all their provisions is important to the legal profession, and to the interests of commerce in general.

CHAPTER

II.

DENUNCIATIONS HISTOBT OF trSHET IN ErEOPE AND GREAT BRITAIN BY THE EARLY WEITEKS OF USUREES AND THBIE_PEACTIOB.

Theall

occupation of the usurer has been bitterly denounced inChristiancountries

ages of the civilized world, and in most

'there

have been laws to suppress it. In respect to the usurer, St. Basil, one of the most learned theologians and illustrious orators of the early Christian church, uses this very extravagant language"

The griping usureris

sees,

unmoved,

his necessitous borrower at

his feet, condescending to every humiliation, professing everything

that

vilifying

;

he

feels

no compassionis

for his fellow-creatures

though reducedto his

he yields not he melts his tears "he swears and protests that he has no money, not at and that he is under necessity of borrowing himself; he acquires credit to his lies by superadding an oath, and aggravates histo this abject state of supplication,;

humble prayer;

he

inexorable to his entreaties

;

inhuman and

iniquitous trafiic with the grossest perjury.

Buthe

whenhis

the wretched supplicant enters upon the terms of the loan,is

countenance

changed

;

he smiles with complacency

;

reminds him of his intimacy with his father, and treats him with

; :

MISTORT OF USUBT.the most flattering cordiality,'

41says he,'

Let

me

see,'

if

I have

ought to have some belonging not some to a friend who lent it to me on very hard terms, to whom I pay most exorbitant interest for it but I shall not demand anythinglittle cash in store, for I;

like that

from you.'

By

fair

words and promises, he seduces and;

completely entangles him in his snares

he then gets his hand to

paper and completes his wretchedness.

How

so

?

By

dismissing

himsell

bereft of liberty."

And

he closes by giving the advicestuff,

" Sell thy cattle, thy plate, thy household

thine apparel

anything rather than thy liberty

;

never

fall

under the slavery

of that monster, usury."usurer^

This language, to excite disgust of the;

was used in the fourth century but equally strong language has been frequently used since. In the seventeenth century, John Blaxton, an English writer of some eminence, gave a description of the usurer, saying, " The usurer is known, by his very looks often, by his speeches commonly, by his actions ever he hath a lean cheek, a meager body, as if he were fed by the his eyes are almost sunk to the backside of his devil's allowance head with admiration of money, his ears are set to tell the clock, his whole carcass is a mere anatomy " ( Vide Blaxtoii's ^'English Usurer "). And the learned Dr. Fenton says, " The testimony of all authority, civil and humane, ecclesiastical and profane, natural and moral of all ages, old, new, middling of all churches,; ; ;

primitive, superstitious, reformedChristian, heathenish;

;

of

all

common

creeds, Jewish,

of

all

lands,

foreign and domestic, are

againstfifteen

usury

;

*

*

*

usury was never

even defended for

hundred years

after Christ."

Volumes have been pub-

lished at different times, purporting to give an authentic history

of the laws to prevent usury from the earliest period, but a verybrief outline of the subject

must

suflice

for the purposes of this

work.

In the year 1819, over

fifty

years ago, there was an importatit

case in the Court of Errors of the State of

New

Tork, involving

the question of usury, and the counsel for one of the parties

made

a violent assault upon the usury laws then in force in the Stateso

much

so,

that the eminent Kent, then chancellor, and afelt justified

mem-

ber of the court,defense,

in spending a little time in theirhis

and in the course of" If

remarks he gave some very

interesting items of history in respect to usury laws in general.

He

said

:

we

look back upon history,6

we

shall find that there

42is

LAWI believe there

OF USURY.

scarcely

laws.

any people, ancient or modem, that have not had usury is not a nation in Europe at this day with-

In ancient Eome, according to Tacitus {Ann., lil). 6, usury was discouraged in the early period of the Republic by the Twelve Tables, which reduced interest to one per cent. It was afterward lowered to one-half per cent, and finally abolout them.ch. 16),

ished by the clamors of the people.

It

was revived in the ageseight per cent was

of commerce Four or six per cent was the ordinary

and luxury, but placed under necessary restrictions.interest;

allowed for the convenience of commerce, and twelve per cent

might be taken for maritime hazards by the laws of Justinian, but the practice of more exorbitailt interest was severely restrained. " The Romans, through the greater part of their history, had thedeepest abhorrence of usury.to usury

They

did not derive their objection

from the prohibitions in the Mosaic law, nor did they hold it sinful, as the learned Fathers of the early and middle ages of the church have done, for they knew nothing of that law. The Roman lawgivers and jurists acted from views of public policy. They found, by their own experience, that unlimited usury led to unlimited oppression, and the extortion of the creditor and the resistance of the debtor were constantly agitating and disturbing,

the public peace. " But it is not only the civilized and commercial nations of ern Europe, and the sage lawgivers of ancientregulated the interest of money.the laws of China, in theofIt will

modRome, that have be deemed a little sin-

gular that the same voice against usury should have been raised in

Hindoo Institutes of Menu, in the Koran Mahomet, and, perhaps we may say, in the laws of all nations that we know of, whether Greek or barbarian. " There is one exception, however, that I ought to notice, and which is supposed to be found in the laws of Solon, given to theAthenian republic.This celebrated lawgiver is said to have allowedparties to regulate the rate of interest

by

their

own

contracts.

When

Solon was called to make laws for Athens, the State was in complete anarchy and when he was asked if he had provided the;

best laws for the Athenians, he replied that hebest that their prejudices

had provided theof hisfirst

would admit;

of.

One

steps

was

to cancel all existing debts

though, according to Plutarch

[Life of Solon), it is not certain that he proceeded to this violent measure, for many said that he did not cancel debts, but only

BISTORT OF USURY.moderated theinterest.

43

And

the result of his laws allowing

interest to regulate itself, I shall give in the

words ofJLeot.,

{Recherches Philosophique sur

les

Graces, 5

2).

De Pauws He says

that usage fixed the rate of interest at twelve per cent, in certain

and at eighteen per cent in others, and that the Athenians regarded all those who did not conform to this usage as usurers, that is, as the most vile and the most ignominious of mankind.eases,

The

public voice which cried against them, and the profound conto

which they were condemned, formed a punishment so great that the lawgiver did not deem it necessary to add any other punishment. The usage, in this case, formed the law. Now, according to this view of the fact, intere