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comport perfectly with the general views of the borrower to make such a purchase, or to take the article even in preference to money. I would illustrate this by the case of a merchant who proposes to borrow a capital to adventure in trade, and who, instead of money, receives an assortment, at a fair price, adapted to that trade. There would be no ground for attributing to such a transaction a design to evade the statute. But in what does the present case vary from that? Prentiss had embarked in a manufactory, of the prospects of which he entertained the highest hopes. He either believed, or endeavoured to persuade others, that it would yield fifty per cent. The De Wolfs had embarked, on his representations, 30,000 dollars in the enterprise. No experiments had been yet made from which any doubts could be excited, nor is there any proof that the stock was falling. Under these circumstances, he proposes to take back the shares if he could procure money to complete the establishment. The connexion between the actual loan, and taking the shares as part of the loan, was easy and natural, and the interest of twelve per cent., with other incidental advantages held out for the loan, may well be estimated as the actual inducement, without supposing that De Wolf was conscious of passing this item upon Prentiss at an inflated price. Prentiss had himself put a value upon these shares but a short time before, in the sale to De Wolf, at nearly the same price, and De Wolf was either his dupe, or the shares were resold at their value. Prentiss's continuing
1825. confidence in their value is positively deduced
from the efforts he made to complete, at every D. Wolf
hazard and sacrifice, the establishment to which Johnson.
those shares appertained. He still thought it a profitable investment, and so had De Wolf thought it, or he would not have made so large an investment without an atom of security but what was to be found in his anticipations from the establishment itself. It is conclusive, that this was no heterogeneous disconnected article forced into the negotiation, but intimately connected with, if not the primary object of, the loan ; that the price, however inflated, was that which both parties had, by previous unequivocal acts, set upon it; and if it could be said to have a market value, there is no evidence that it was above its market value; and, finally, that it was an actual transfer of interest with a view to acquire the article, and not merely to throw it upon the market in order to raise money. It was a real transaction, and not a subterfuge.
On the subject of the treasury notes and bills drawn on Philadelphia, we can perceive nothing usurious, or even unconscionable, in this part of the transaction. As to treasury notes, they were thrown into circulation as money, and it is an historical fact, that they were worth all they purported to be worth, notwithstanding the casual depreciation which the embarrassments of the country, and the scarcity of gold and silver, may have produced ; and as to the bills on Philadelphia, we are induced to believe that payment in that form was a benefit conferred on the borrower. From the well known course of trade between 1825. Kentucky and Philadelphia, it would scarcely
De Wolf have been possible, at that time, or perhaps atv.
Johnson. any time, to have suited them better in making a payment of money intended to be transported to, and used in, Kentucky. With regard to the bills, it is in evidence, that there was no loss incurred; and, on the treasury notes, not as much as the transportation of gold and silver would have cost, calculating all the incidents to actual transportation. But what if these payments had been made in Rhode-Island bank bills ? Would there have been a pretext of lurking usury in such a payment ? Yet who can doubt that the payment would have been less convenient than that actually made? In all probability, with reference to gold and silver, and the exchange or depreciation in Kentucky, the paper of RhodeIsland would have been equally, if not more disadvantageous. It is not on such vague and equivocal grounds, that Courts infer the presence of usury. : But there is one consideration with reference to this part of the cause, which is conclusive. There is no evidence in the record that these payments were in any way forced upon Prentiss. On the contrary, for any thing that appears in the evidence, it may have been, in both instances, the payment of his own choice. In a letter not long before the loan, he actually quotes bills on Philadelphia from four to six per cent. advance. Nothing of that chaffering appears in the cause, which distinguishes all the cases in which attempts are made to evade usury laws,
at the moment of extorting extravagant profits on
afford an easy solution of the question upon what principle that addition was made.
But why, for so inconsiderable a sum, should we perplex ourselves with difficulties in so large a transaction ? ' It could, at most, in common with all the items we have been examining, have furnished only a ground for a deduction, certainly not for dismissing the bill. Nor should we have proceeded to examine these items in detail, were it not that the Court below will have to make a decree upon which it will be necessary to allow or disallow these items. Nor, when it is considered under what circumstances this second contract was entered into, would this Court, upon slight grounds, be induced to open it.
The parties had previously entered into a contract avowedly usurious with relation to the interest reserved. The defendant intimates his intention to avail himself of the defence of usury, and the parties sit down together for the sole and express purpose of purging it of all usurious taint, and to arrange a new contract respecting the same loan which should be legally obligatory.
Is it, then, probable, that any deduction would have been withheld, which, by being retained, could affect the new contract with usury, or with any of the incidents of usury? Would De Wolf have trusted himself again in the hands of Prentiss, by mixing up any thing with this contract on which a legal exception.could be sustained ? We think not.
But one of the counsel for the appellees has placed the objection to the complainant's right to