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1825. relief on a more general ground than the receipt
my of usury, or the avoidance of the contract under De Wolf
v. statute. He insists, that it is enough for this Johnson. Court to refuse its aid, that the contract of 1815 How far a was prohibited by law, although not avoided by Court of equi
ty will lend its law.
That a Court of equity will not lend its aid to se- an illegal or unconscionable bargain is true. But o the argument carries this principle rather too far
as applied to this case. The law of Rhode Island certainly forbids the contract of loan for a greater interest than six per cent., and so far no Court would lend its aid to recover such interest. But the law goes no farther; it does not forbid the contract of loan, nor preclude the recovery of the principal under any circumstances. The sanctions of that law are the loss of the interest, and a penalty to the amount of the whole interest, and one third of the principal if sued for within a year. On what principle could this Court add another to the penalties declared by the law
itself? In the pre- But the case does not rest here. The subsesent case, even if the original quent legal contract of 1817, rescued the case
6 from the frowns of the law. Courts of justice sequent agree will not shut the door in the face of the penitent; it from the and hence it has been decided, in a case very rendered it va- analogous to the present, that although a con
tract be in its inception usurious, a subsequent agreement to free it from the illegal incident shall make it good. (1 Campb. Rep. 165. note. 2 Taunt. Rep. 184.
According to the views, then, which we have
exhibited of the case, the principal sum of the 1825. loan of 1815 was a subsisting debt at the date of
De Wolf the contract of 1817, and unaffected by any of
Johnson. the deductions contended for in the several items which we have considered. There was, then, a good consideration for the contract of 1817, and it is legally valid to the amount which it purports on the face of it.
But, if it were otherwise, there are two views of this subject, upon which the Court below ought to have sustained the bill.
It is very clear, that, the Kentucky contract must be considered as a new and substantive contract. It is governed by a distinct code of laws from the Rhode-Island contract, and cannot be affected by the taint of usury which might have been transmitted to it under some circumstances, had it taken place in Rhode-Island. It was, then, equivalent to a payment and reloan; and no one can doubt, that money paid on an usurious contract, is not recoverable back beyond the amount of the usury paid. Again, it is perfectly established, that the plea The assignee
of an equity of of usury, at least as far as to landed security, is redemption
cannot set up personal and peculiar; and however a third per-usury as a de
fence to a bill son, having an interest in the land, may be af- by the mortfected incidentally by a usurious contract, he foreclosure. cannot take advantage of the usury. Some exceptions may exist to this rule under bankrupt systems, but they are statutory and peculiar.
Here, then, the case presents a third person, the assignee of an equity of redemption, setting up a defence, which, in one aspect, Prentiss him
1825. self cannot set up; and which, in another aspect,
My he has not set up; but, on the contrary, under De Wolf
the state of the pleadings, must be supposed to Johnson,
have refused to set up, or have abandoned. These views are independent of the effect of notice, or of the peculiar circumstances of the notice in this case.
It is true, the Johnsons deny the notice prior to the deed of trust. But previous notice is immaterial, since the notice with which the law affects them, is that which the deed to Barry, under which they claim, communicates to him as assignee. In the actual case, the notice is peculiarly strong and pointed, since the only description of the lands in question, in the deed to Barry, is contained in a reference for description to the mortgage to De Wolf, and the purpose is explicitly declared to give priority to that mortgage. Technically and morally, therefore, they required no more than what should remain after satisfying De Wolf. But had they purchased from Prentiss, in the most absolute and general manner, and altogether without notice actual or constructive, they still could have acquired no more than the equity of redemption, and that would not have transferred to them the right of availing themselves of the plea of usury. We have examined the cases quoted to this point, and are satisfied with their application and correctness. It would, indeed, be astonishing, were it otherwise, for the contrary rule would hold out no relief to the borrower; it would be only transferring his money from the pocket of the
lender to the pocket of the holder of the equity 1825.
Upon the whole, we are of opinion, that the v. decree must be reversed, and the cause sent * back to have a decree of foreclosure entered, and carried into effect, according to the exigencies of the case.
The scheme of a lottery contained a stationary prize for the first drawn number on each of twelve days, during which the draw. ing was to continue, and the first drawn number on the tenth day was to be entitled to 30,000 dollars, payable in part by three hundred tickets, from Nos. 501 to 800, inclusive. No. 623, one of the 500 tickets to be given in part payment of the said prize, was drawn first on that day, and decided to be entitled to the prize of 30,000 dollars. After the drawing for the day was concluded, the managers reversed this decision, and awarded the prize to No. 4,760, which was drawn next to No. 623, and had drawn a prize of twentyfive dollars, which they decreed to No. 623.
In drawing the same lottery, it was discovered on the last day, that the wheel of blanks and prizes contained one blank less than ought to have been put into it; and to remedy this mistake an additional blank was thrown in.
In an action brought by the managers against a person who had purchased the whole lottery, for the purchase money, it was held, that these irregularities did not vitiate the drawing of the lottery, the conduct of the managers having been bona fide, and the affirmance of their acts not furnishing any inducement to the repetition of the same mistake, nor any motive for misconduct of any description.
Quatre, Whether the ticket No. 623, or No. 4,760, was entitled to the prize of 30,000 dollars 2
1825. ERROR to the Circuit Court for the District w of Columbia. Brent
This cause was argued by Mr. Key, for the March 14th. plaintiffs, and by Mr. Swann and Mr. Jones, for
March 17th. Mr. Chief Justice MARSHALL delivered the opi
nion of the Court.
The defendant was the purchaser of the first class of a lottery to be drawn in the city of Washington, conformably to a scheme agreed on between the plaintiffs, who had been appointed managers, and himself; and the declaration is on the penalty of the bond given for the sum of 10,000 dollars, conditioned for the performance of articles entered into between them, one of which was, that he should pay the said sum of 10,000 dollars to the plaintiffs within sixty days after the lottery should be completed.
The defendant prayed oyer of the bond, and of the condition; after which the following entry is made: “ Non damnificatus pleaded, and issue, with leave to give the special matter in evidence on both sides."
A jury was impanelled, who found a special verdict, which states at large the by-law of the corporation authorizing the lottery, the appointment of the managers, their sale of the first class to Davis, the scheme of the lottery, and the agreement entered into by him with them.
The verdict then states, that the managers, and the said Davis, proceeded to draw the said