USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. II > Part 19
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There is a Case in Poll. 645. Price ag't Hunt that I suppose will be much relied on on the other Side The Case is a devise to a Son & his Heirs And if he die before he attain to 21. or have Issue of his Body living Rem'r over to Francis Cowley The Son lived to 28. & then died without Issue The Question is between Cowley the Rem'r man & the Heir of the Son Not whether it was an Estate tail in the Son as indeed it was not
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but whether the Rem'r could take Effect . One of the. Con- tingencies upon which it was limitted having happened viz the Sons attaining 21 And adjudged it should not
Now the Difference between this Case & ours is very obvious the Rem'r there is to commence upon the Sons dying without Issue living which is certainly a Contingency & differs very much from a Limitation upon a dying without Issue generally as our Case is I have already taken this Difference & allowed that where the dying without Issue is attended or coupled with any contingent Circumstance there it makes no Estate tail but is a Fee simple contingent But in our Case the dying without Issue stands singly & is disjoined from the Contingencies of dying before Age or Marriage
This Case then of Price & Hunt proves no more than this that where a Rem'r is limitted to Commence upon 2 Contingencies in the Disjunctive If either of them happen the Rem'r cannot take Effect w'ch I shall readily grant but conceive it is nothing to this Purpose
[186] Besides to construe this a contingent Fee will be to make the Rem'r to the Survivor vain & idle for then in that Case the Use of such a Rem'r must be to prevent the Estate from going to the Heir of the 1. Devisee in Case he sho'd die before 21. or without Issue but it can never be supposed the Testor had any such Intent in this Case because he has limitted the Rem'r to that very Person who was & would have been Heir to the Devisee in Case he died before 21 or without Issue And so if this is con- strued a contingent Fee the Rem'r must be useless Certainly then this was not his Intent but his Intention in limitting this Rem'r was to exclude his own Heir from taking upon the Deter- mination of the Estate given to the 1. Devisee as he would have done upon the Death of the Devisee without Issue in Case this Rem'r had not been The Inference from this is clear he did not intend a contingent Fee but an Estate tail 1. Sal. 233. 1. Ro. A. 836.
It is a Rule in the Construction of Wills that such Construction should be made as will make the whole Will consistent But to construe this a contingent Fee is inconsistent with the Rem'r over as this Case is Therefore it must be an Estate tail
The Construction I contend for is not only supported by the Words of the Will but by the clear Intention of the Testator as I conceive He certainly intended the Rem'r should take Effect whenever there was a Failure of Issue & not only upon
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the Contingency of dying without Issue within Age &c. as I hope is in some Measure evident from what has been sayed but will appear still more clearly if we consider the latter Part of the Devise Upon which the present Question properly depends The Words are " Then I give the whole to the Survivor And in " Case both die before they do accomplish their respective "Ages or without Issue of their or one of their Bodies lawfully " begotten Then I give & bequeath the said Plantation to the " right Heirs of me the sd. David Fox "
The first Words "Then I give the whole to the Survivor " carry no Estate of Inheritance but the Surviv'r by Force of those Words without more would have only an Estate for Life in a Moiety 1. Ro. A. 835. 836. We must of Necessity have Recourse to the latter Part of the Clause to make it a greater Estate And by that indeed it is clear he intended an Estate of Inheritance and what kind of Inheritance the Word Issue shews viz an Estate tail There is no other Word in the whole Clause to carry an Estate of Inheritance but that And therefore it must either be an Estate for Life or an Estate tail But if it should be taken as [187] an Estate for Life And the Words " In Case both die without Issue &c." are taken as Words of Determination i.e. to shew when the Estate given by the first Words should deter- mine this Absurdity will follow that the Survivor had an Estate for Life determinable upon his dying without Issue And it is not to be supposed the Testator intended such an Absurdity In Order therefore to satisfie the Words of the Will & make the Testators Meaning consistent with Reason & good Sense the Will must be construed as I would have it viz. that the Survivor was to have an Estate tail in the whole Which I hope appears clearly to be the Testators Intention If the Court is of another Opinion Then I insist the Survivor had only an Estate for Life in one Moiety And we as Heir at Law are well intitled to that Moiety Q. & vide Skin. 339.
I will beg Leave to add one Case in Law which I believe will not be denied If Lands are devised to a Man without saying more And in Case he die without Issue Rem'r over this is clearly an Estate tail I must submit whether that be not the Case here The Survivor is to have the whole And in Case he die within Age or without Issue Rem'r over
To conclude We are Heir at Law And if there is any Doubt about the Construction of this Will such Construction should
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be made as is most in our Favour The Law is favourable to the Heir upon many Accounts Before the Stat. 31. H. 8. the An- cestor could not devise away his Land from him And since that Statute Devises that tend to deprive him of his Inheritance are always construed as much in his Favour as may be It is indeed a known & established Maxim that in doubtful Constructions the Heir is to be favoured Wherefore if the Testors Intention was not so evident as I hope it appears Judgment ought to be for the Plt.
Case of Barber & Timson in this Court ab't 20 Years Where the Will was in the same Words & adjudged an Estate tail
Needler for the Deft. insisted much on the Word Assigns in the first Part of the Devise which he sayed shewed the Testor intended a Fee 2 Sal. 622. That if it should be construed an Estate tail that Estate is determinable by the Death of the Devisee before 21. And then it will follow that if the Devisee had died before 21. & left Issue that Issue must be disinherited which can never be thought the Testors Meaning Therefore (Or) here must be taken for (and) & then it is clearly a contingent Fee He cited 1. Ro. Abr. 835. 4. Henbury & Cockerell. Hard. 148. Hall & Deering 1. Sid. 148. Collenson & Wright but principally relied on Price & Hunt Poll. 645. Vid. 2. Vern. 86. 151. Skinn. 144. Pell & Brown Cro. Ja. 590. [188] Apr. 1736.
Judgment for the Deft (viz. that it was a contingent Fee) by the Opinion of
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Needler Cont 15
That this is rightly adjudged See 2 Strange Barker v Sureties
ANDERSON qui-tam ag't WINSTON
Debt on the Act 3 & 4. Geo. 2. 12. ag't taking excessive Usury The Plt. declares that the Deft. after the 29. Sept. 1730. viz ulto July 1731 at &c. upon a certain Contract between the Deft. & one John White made did receive of the said White by Way of corrupt Bargain & Loan 36 Current for Gain Use Interest &
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giving Day of Paiment of 20£ Curr't by the Deft. to the s'd White lent over & besides the lawful Interest of 6 per Cent ag't the Form of the Act of Assembly &c. And in another Action declares in like Manner for taking 36. s. for Interest & giving Day of Paiment of 12£. In which Action the Jury find specially
That White some time in June 1730 borrowed of the Deft. 20£ Curr't And in July 12£ more And gave separate Bonds for Paim't of 206. & 126. Sterl. at the End of a Year In April 1732. White & the Deft. made a Settlement & for the first year White was charged for principal Money on both Bonds 366. 16s. Curr't & in Oct'r fall White paid the sd. 36.16 .- & Interest at 6. per Cent from the respective Days of Paim't in the Bonds & the Deft. received it And if the Court adjudge the Deft. guilty they find him guilty of taking the said 4.16 .- above six per Cent upon the sd. Bonds
And I take it upon the Matter found the Deft. is not guilty of any Breach of the said Act Before the making of which there was no Law here that settled the Rate of Interest nor were Men subject to any Penalty tho' they took 20 or even [189] 50 per Cent. Now this Act provides "That no Person after the 29- " Sept. 1730 upon any Contract to be made after that Time for " Loan of any Monies Wares &c. shall take above 6 p cent per "Ann. for Forbearance And all Bonds &c. made after that " Time where More is reserved shall be void And any Person " who after the Time aforesaid upon any Contract to be made " after the said 29. Sept. shall receive above 6. p Cent. shall " forfeit double the Value of the Mony &c. lent &c.
It is plain this Act was intended to refer only to Contracts made after the 29. Sept. 1730. The Penning of it is very strong to exclude all Contracts made before After the 29. Sept. & after the Time aforesaid is repeated no less than 4 Times Indeed it would be very strange to subject Men to such severe Penalties when they transgressed no Law then in being I suppose it won't be pretended that any Bond taken before 29. Sept. 1730. where more than 6. p. Cent is reserved is void Then neither can the receiving the Money upon such Bond subject the Obligee to the Forfeiture of the double Value for it is receiving upon a Contract made after 29. Sept. [sic] is made penal by this act
This I take to be very clear upon the Words of the Act as well as evident from the Reason & Justice of the Thing And there- fore it may be needless to mention the Authorities upon this
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head But as there are Cases directly in Point adjudged upon the Statutes of Usury in England I will beg Leave to mention 2 or 3 Hawkins 1. P. C. 244. is express that a Contract made before the Act 12. Ann. which reduces Interest to 5 p Cent is not within that Statute But that it is lawful to receive 6 p. Cent (the legal Interest before) upon such Contract See Dal. 13. Ray. 195.
But we need go no further than to the last Act ag't Usury 8. G. 2. 5. to prove such Contracts are not within the first Act upon which this Action is founded The Title of it is To make void certain Contracts for paying excessive Usury It recites that there were sev'l Contracts subsisting made before passing of the 1. Act or between the Passing & Commencement And tho' there was no Law in being to punish such unreasonable Lenders Yet such Contracts which were always unrighteous ought not to be binding It is therefore Enacted that all Bonds &c. made before 29. Sept. 1730. where any Interest above 6 p Cent is agreed to be paid shall be void as to all Interest above 6 p Cent.
Here is the Judgment of the Legislature that Contracts made before the 1. Act or between the Passing & Commencement are not punishable by any Law And all the Punishment inflicted [190] by this Act is only to make such Contracts as were then sub- sisting void as to all Interest above 6. p Cent but there is no Penalty for receiving the Money upon such Contracts If there was the Deft. would not be within it the Matter for which this Prosecution is set on Foot being transacted long before the making of this Act & was not a Contract then subsisting
If then the Deft. did not take above 6. per Cent upon a Con- tract made after the 29. Sept. 1730 I conceive he is not guilty of the Breach of any Law And that there is nothing found in this Verdict to prove he did is very clear In June & July 1730 he let White have 20£. &12£. Curr't & took his Bond for Pai- ment of the like Sum Sterling at the End of a Year This I hope was a Contract before the 29. Sept. 1730. It was lawful then for the Deft. to receive the Money due upon these Bonds I mean without being subject to any Penalty In April 1732. White & the Deft. made a Settlement At this Time the Deft. might lawfully receive the Sterling Money reserved on the Bonds as I sayed and he might also lawfully receive 6 per Cent Interest upon this Mony from the Time it ought to have been paid And this is all he did do The Sterling Money is paid in Cash at
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15 p Cent the lowest Exch'a w'ch makes 36. 16. the Mony. reced upon this Settlem't tog'r with Interest upon it from the Time it was paiable by the Bonds at 6 per cent.
If there is any Pretence of a Contract after the 29. Sept. 1730. in all this it must be when this Settlement was made but upon that he took no more than 6 per Cent And however unreason- able it might be to take 15 per cent upon the first Contract which was before the Law it is plain he has not taken more than is allowed by the Law on any Contract since And therefore he is not guilty of any Breach of the Act of Assembly Unless it is construed that the receiving Mony after the 29. Sept. 1730. upon a Contract before that Time where more than 6. per cent is reserved is within the Act But I humbly conceive such a Construction can never prevail Being ag't the express Words as well as the Intention of the Act which as I have observed is penned in the strongest Terms to exclude all Contracts before It is against the Sense of the Legislature here since the making of it as I have shewed from the 2 Act ag't Usury Against the Rule of Construction in such Cases as appears from the Cases I have read adjudged upon this Point in England Against the private Sentiment as we may suppose of Sir J. R. who we all know had the Penning of the 2. Act & was very active in pro- moting it [191] And also ag't natural Justice to punish any Man for an Action innocent in itself with respect to human Laws by a Law made ex post facto Which kind of Laws have been always condemned as unjust And therefore to make such a Construction of a Law against the express Words of it I appre- hend can never be thought right
And I hope the Consequence of such a Determination will be considered It must affect a great Number of People who thought they might lawfully take more than 6 per Cent before the Act & perhaps in Conscience might do so For with Defer- ence to the learned Gentlemans Opinion I think some Men under some Circumstances may as lawfully take 10 per Cent as others may 5 I mean foro conscientia & abstracted from positive Laws And this most of the Writers of the Law of Nature agree I own that Usury seems to have been always condemned by the ancient Laws of England tho' an Usurer was only punishable by Ecclesiastical Censures in his Life time But if it was found by 12 Men after his Death that he died an Usurer he was com- pared to a Thief His Goods were forfeited to the King & his
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Lands escheated 3. Inst. 151. And as Usury was an Offence punishable by the Law of the Church We frequently find it sayed to be ag't the Law of God Not that it is prohibited by the Gospel tho' it might be so by the Canons & Decrees of the Pope which last in the Times of Superstition the artful Priest taught the World to believe were as much the Law of God as the Gospel itself But now Mankind are more enlightened and Protestants at least allow nothing to be ag't the Law of God but what is prohibited in Holy Writ 1. Hawk. 245.
As to the Prohibition in the Jewish Law that is not at all obligatory upon Christians The Law of Moses was promulged to a particular People and only binding upon them to whom it was promulged It was not intended nor in [sic] any where sayed to be an universal Law to Mankind And that it is not binding upon Xtians that is the ritual & political Part of it We have the Authority of the Church viz the 7th of the 39. Articles It is true the moral Part is there sayed to be binding And so it would be if it was not in the Law of Moses. The moral Law being entirely & universally obligatory upon Mankind
But in Truth this Prohibition is not a general but a partial Prohibition respecting the Jewish Nation only for they are permitted to take Usury of a Stranger tho' not of one another which is a plain Proof that Usury is not ag't the moral Law for if it had [sic] the Jews who were the sanctified & chosen People of God would never have been permitted the Practise of it at all. Indeed it is impious to suppose that God would tolerate the practise of a Thing simply [192] & naturally unlawful This Prohibition then to the Jews was meerly political 1. To obviate the avaritious Disposition observable in that People and to prevent it from running out into Oppression of one another And 2. thereby to cement them into a closer Bond of Amity to each other 3. To secure & strengthen that Democratical Gov- ernment Moses intended to institute by preserving some kind of Equality in Property Upon which Principles the Laws of Jubilee & ag't alienating Land for ever were also instituted It must however be owned the primitive Xtians took no Usury probably out of a Superstit ous Reverence to the Mosaic Law which might be the first Occasion of its being condemned by the Church tho' afterwards abused by the Clergy who made a Market of that as well as other Offences by the Practise of commuting for Penance.
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Whoever has a Mind to be further convinced that Usury is not ag't natural Justice let him read Puffendorfs Law of Nature B. 5. c. 7. s. 8. ad finem & Barbeyrack's Notes thereupon where he may see it proved to a Demonstration that it is neither ag't the Law of God nor of Nature but even necessary in the present State of human Affairs & of great Use in all trading Countries
Grotius who seems to candemn the Name allows the Thing He says L. 2. c. 12. there are some Things that look like Usury but are Pacts of another Nature as the Amends that ought to be made a Cred'r for the Loss he is at in being out of his Money &c. which is allowing the very Thing contended for viz If I lend Mony or Mony is owing to me I ought to have something for the Use of my Mony & the Loss I sustain for Want of it This is the very principle upon which Usury is proved to be consistent with natural Justice. It is no matter whether you call it Usury or Interest Amends or Damages the Thing is the same And certainly in the present State of human Affairs where many Persons Estates consist all in Money And they cannot say it would be inconvenient that they should employ it in Trade & Husbandry No just Reason can be given why they should not make a Profit of their Estate as well as those who have Lands & rent them out Especially when their Money is as useful to the Commonwealth for no considerable Trade could be carried on without it
Usury was allowed by the Roman Law Puff. 276. Note 4. & is practised in almost all civilized Nations at least in all Christen- dom It is indeed prohibited by the Alcoran: but even [193] the Professors of that Religion evade it by lending Money to have a certain Share as a 4 or 5 Part of the Gain made by it which is the same Thing for in Equity there is no Difference whether I agree for a certain Gain before hand or run the Risque of an uncertain one Puff. pag. 276.
As to the Quantum that may be taken for Usury according to natural Justice Grotius ad Lucam 6. 35. proportions it not by the Gain of the Borrower but the Loss that accrues to the Lender & that so much ought to be paid by the Borrower as the Lender in the Way of his Calling usually makes of his Money Allowance being made for Hazard But because it would be difficuit to prove & adjust this exactly And such a Latitude would give an Opportunity to ill Men to insist upon too great an Interest The Policy of most Nations has reduced it to a
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certain Standard which is more or less according to the different Circumstances of each State In trading Countries as in Hol- land it is very low 21/2 or 3 per cent In Venice where there is no Trade it is 8 per Cent And Interest is high in all the Inland Parts of Germany The Rate of Interest in England has been reduced from Time to Time as Mony has grown more plenty & its Trade increased By the H. 8. It is prohibited to take more than 10 per Cent under a Penalty This is the first Law that made Usury cognizable in the Kings Court Thus it continued til Ja. 1. when Interest was reduced to 8. After the Restora- tion it was reduced to 6. & by the Ann to 5. In most of the English Plantations I am told it is now at ten 12. was per- mitted by the Roman Law till the Time of Justinian who re- duced it to 8. Puff. 276. Note 4. Thus it varies in different Countries & in the same Country according to the different Circumstances of it
To conclude where the Rate of Interest is settled by Law in any Country No good Man ought to take more tho' it was not prohibited under a Penalty But where there is no Law the Rule laid down by Grotius seems very equitable viz in Propor- tion to the Loss that accrues to the Lender And therefore a trading Person who usually makes a great Profit of his Money may with good Conscience require more than one whose Money lies dead upon his Hands From whence I would observe that the taking more than 6 per cent before there was any Law by some Men under some Circumstances was not so very criminal & unrighteous as is pretended Yet I should be sorry to be thought an Advocate for excessive Usury as it is certainly intro- ductory of great Oppression & I am heartily glad it is settled by Law All that I contend for is that a Man may not be punished for any Contract of this Sort before there was any Law to make it penal And I hope Judgment will be given for the Deft.
This Case was agreed by the Parties & so no Judgm't given
APRIL COURT MDCCXXXIX [194]
RICHARDSON ag't MOUNTJOY App'l Richmond
In Trespass on a Special Verdict the Case is
Joseph Belfield & Mary his Wife seised in Fee in Right of Mary by Deed Oct. 16. 1715. give & grant to Tho's Mountjoy
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oldest Son & Heir of Mary 1600 a of Land more or less the remaining Part of a Tract of 2500 A. To hold the Plantation & 1000 A. adjoining in Fee tail & the remaining 600 Acres be the same more or less in Fee
The said Mary Belfield & Tho's Mountjoy by Lease & Rel. 2 & 3. Apr. 1717. in Cons. of 836. sell & convey to W'm Wood- bridge 600 A. of Land Part of the sd. 1600 by certain Metes & Bounds described in the Deeds with gen'l Warranty ag't them & their Heirs
Mary at the Time of making these Deeds was a feme covert but lived separate from her Husband And upon her Marriage there were Articles that she should have Power to alien & dis- pose of her Lands without her Husband which he permitted her to do Upon a Survey it appears there are but 1000 Acres to satisfie the whole 1600 including that conveied to Woodbridge
Mary Belfield died before Tho's Mountjoy who is also dead without Issue The Plt. is Heir at Law to both W'm Wood- bridge enter'd into the 600 Acres & died seised & after his Death John Woodbridge his Son & Heir enter'd and the Deft. by his Command dug the Soil which is the Trespass supposed And if John Woodbridge has Title to the 600 A conveyed to his Father Then pro quer. If not pro. Def. The County Court were of Opinion that Woodbridge had not a good Title & gave Judg- ment for the Plt. But I conceive that Judgment is erroneous
I must observe the Plts. Title in this Case is as Heir to Mary the Donor the Estate tail being determined by the Death of Tho's Mountjoy the Donee without Issue And so he claims 1000 Acres in his Reversion The Defts. Title is under the Purchase from Mary Belfield to Tho's Mountjoy
In this Case there are 4 Points to be considered 1. Whether the Deed of a feme covert made alone & without her Husband but by his Consent & in Pursuance of Articles before Marriage will bind the feme & her Heirs And if so Then.2. Whether a Reversion in Fee expectant upon the Determination of an Estate tail may be conveied & will pass by Deeds of Lease & Release 3. Admitting no Estate passed out of Mary Belfield by the Lease & Release from her & Tho's Mountjoy Whether those Deeds may not at least operate & be taken as an Explanation of the first Grant from Belfield & his Wife to shew which was . [195] the Land intended to pass in Fee 4. Admitting the 600 Acres conveied to Woodbridge to be Part of the Land intailed
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Whether the Warranty of Thomas the Ten't in Tail descending upon the Plt. who is Heir to the Donor will not bar him
1. The Deed of a feme covert simply taken without all Doubt is void Bro. Faits enrolled 14. Cro. El. 700. Hob. 225. But the Question is How far the Husbands License & Consent will make it valid for the Rule is Modus et conventio Vincunt legem Et pacto aliquid licitum est quod sine pacto non admit- titur
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