ingly did lend her a certain fum, for which this action was brought.

It was objected by Serjeants Davy and Walker in arreft of judgment, that a husband cannot be indebted for money lent to his wife, that the cannot contract, or borrow money; but they faid, if it had been alleged that the defendant was indebted in fo much money advanced by the plaintiff to Ann the wife of the defendant, at his inftance and request, it would have been right enough; but argued that the word lent is a technical term, the legal idea or meaning whereof is fo certainly established and fixed, that it is as impoffible for the husband to be indebted for money lent to his wife, as it is for A. to be indebted to B. for money lent to C. a third perfon, and cited Mariott verfus Lifter. i Wilson 141. and 1 Salk. 23. 2 Vent. 36.

Serjeant Burland for the plaintiff-In answer to the objection, faid, that money lent to a wife at the inftance and request of a hufband is the very fame as if it was alleged to have been lent to the husband himfelf; a wife may make an inchoate contract, which the hufband may afterwards confirm or difaffirm; here the contract is made at his requeft before, the is only the hand which he makes ufe of to take and receive the money; the cafes cited are very different from this, thofe were cafes of money lent to a third perfon, this cafe is money lent to the hufband himfelf, at his requeft [to the plaintiff] to deliver it into the hands

of the wife.

Lord Chief Juflice De Grey-This is a very poor fhift of the defendant to delay the payment of a juft debt; if goods are de livered to the wife at the inftance and request of the husband, he is bound by a contract expreffed; if a hufband turns his wife out of doors unjustly, and the buys neceffarics of life, he is bound to pay for the fame by an implied premife; he is alfo bound by all her contracts for neceffary goods during cohabitation, and although the goods be actually delivered to her, yet they are goods fold and delivered to him; you cannot make a contract with an infant, but you may plead that you lent an infant money to buy neceffaries according to his ftate and quality, and that the money was laid out in neceffaries; it is admitted that if the word advanced had been inferted in the count instead of the word lent, it would have been good; I think [in this cafe] the word lent is the fame as the word advanced; and that this is not like the cafes cited, which are good law; I think that a loan to the wife at the request of the husband, is the fame, in law, as if the loan had been to the hufband himself. And of the fame opinion were all the other juftices; and Blackflone Juflice obferved, that it

was

2 Black. Rep. 859. S. C.

was truly faid by my Brother Burland, that a wife might make an inchoate contract, which the husband might afterwards, con. firm or difaffirm, and that here he had (if the expreffion may allowed) previously confirmed the contract for the loan.

Judgment for the plaintiff, per totam curiam,

[Purchase of TH

an annuity for the life of the vendor

(32 years old)

at fix years' purchafe is

redeemable át

the Vendor

Murray verfus Harding junior, Clerk. C. B.

be

HE defendant Harding in June 1766, being rector of Grafton, and having occafion to borrow 100l. applied to one Markham an attorney to procure that fum for him upon his perfonal fecurity; Markham told him he might (perhaps) be able to get him the money if he would grant an annuity out of not ufurious: his rectory and tithes for fix years' purchase; Harding being in notwithstand diftrefs, was willing to do this; Markham applied to the plaining it is made tiff Mrs. Murray, to advance to the defendant Harding 120). the option of and told her that, in confideration thereof, Harding proposed to grant her an annuity of 20l. per annum out of his rectory, during his life, and that if he fhould have any other benefice, the fame fhould alfo be a fecurity to her for the annuity; with a provifo or on condition that if Harding fhould pay the plaintiff 120l. at the end of five years the annuity should cease; and bein the recital fides, that Harding was willing to give her his bond in the of the deeds.] penalty of 240l. to perform the terms and conditions aforesaid, and a warrant of attorney to confefs judgment thereon; and to pay the expences of making the deeds and fecurities; to this propofal the plaintiff Murray agreed with Markham the defendant's attorney or agent.`

at the end of

five years, and by miftake of the Scrivener is ftiled a Loan

*[and the should give

him thereout

10. 10. sd. See 2 Black. Rep. 860.]

On the 24th of June 1766, the propofal, fo agreed and confented to as above, was carried into execution by a deed made between the parties, reciting, that whereas R. Harding had occafion to BORROW 100l. and propofed to grant an annuity out of the faid rectory and tithes in confideration thereof, and that Mrs. Murray had agreed to lend him the fame; therefore the deed witneffed that in confideration of 120/. paid by Murray to Harding, he thereby granted her an annuity of 20l. out of his rectory with power of diftrefs; provided that if he paid her 120/. at the end of five years, viz. the 24th of June 1771, then the annuity to ceafe, otherwife the deed to remain in force during Harding's life; and that if he should have any other benefice, the fame fhould be a fecurity for the annuity; he allo executed a bond in the penalty of 240. conditioned for the performance of the premises contained in the deed, and also a warrant of attorney to confefs judgment thereon, and paid 7.

for

for preparing the fecurities, and two guineas to Markham for commiflion. The judgment upon the bond and warrant of attorney was entered upon record in Trinity term, 6 Geo. 3. 1766, and the annuity has been paid up till June 1771, but the 120l. was not then paid, fo the deed is become abfolute; and two quarters of the annuity being due and unpaid at Lady-day 1772, the plaintiff, in May 1772, took out a fieri facias against the defendant, and indorfed the fame for the fheriff to levy 135/. thereupon, which the fheriff did; and Markham the attorney fays in his affidavit, that the reafon for levying the whole, was, because he apprehended the judgment, being upon the bond, would be at an end, or elfe he would only have marked the writ for the fheriff to have levied what was due upon the annuity at Ladyday 1772, with poundage and cofts.

Upon affidavits of the facts above ftated, and fuppofing that this was an ufurious contract, it was moved, in Trinity term laft, that the judgment might be fet afide, and the money levied upon the fieri facias in the hands of the fheriff be returned to the defendant; when the court made a rule to fhew cause in Michaelmas term laft, and in the interim, ordered the money levied to remain in the hands of the fheriff.

Serjeant Burland fhewed caufe for the plaintiff-The ground of Michaelmas this application to the court to fet afide and vacate the judgment term, 13 Geo. and execution, is, that this is an ufurious contract, as being a loan 3.1772. money to be repaid to the lender in all events, with more

of

than lawful intereft for the use thereof.

I fubmit to the court, that upon the face of this deed the contract is not ufurious; fix years' purchase is a good confideration for this annuity, for the life of the vendor; but here, the fecurity is not co-extenfive with the life of Harding the vendor; he may be deprived of, or refign his benefice; courts of juftice do not weigh in golden fcales, what is the exact value of an annuity; and in a contract of this kind, where the lender rifks the lofs of the whole, every one has a right to make the beft and most advantageous bargain he can. See the cafe of the Earl of Chesterfield verfus Janfon. 1 Atkins 301. 1 Wilfon

206. S. C.

The cafe of the King verfus Drury, 2 Lev. 7. is very like the cafe at bar. Drury was indicted upon the ftatute of ufury, for taking 7. 10s. for the ufe of 3ool. for a quarter of a year; upon not guilty, it was tried before Hale Chief Justice at GuildHall; where, upon the evidence, the cafe appeared to be thus; Brown had a lease of a house of the Earl of Suffolk for forty years

CC 4

years at 51. per annum rent. Brown agreed with one Drue to align the term to him for 300l. but Drue not having the money, Drury by agreement with Drue paid the gool. and took the affignment to himself; and then Drury demised the house to Drue for thirty-nine years and three-quarters of a year, at the rent of 351. whereof 51. to be paid to the Earl of Suffolk, and the 30l. refidue to Drury to his own ufe, Drue covenants to pay the rent, and to perform the other ufual covenants in leafes for repairs, &c. and Drury covenants, that if, at the end of four years, Drue pays to him 300l. then the rent fhall cease, and that then he will convey the refidue of the term to Drue. And by Hale Chief Juftice this was not ufury within the statute; for Drue was not obliged to pay the 300l. to Drury; but at his election he might pay it if he would, and thereby determine the rent and have the term; fo that, in effect, it is nothing but a bargain for an ANNUITY of 30l. per annum for thirty-nine years and three quarters for gool. to be fecured in this manner, but determinable fooner if the grantor pleased, but the grantee had not any remedy to have again the 300l. if it did not please the grantor to pay it at the end of the four years, and fo the taking of the 7. 10s. is not ufury: -But if Drury had had any fecurity to be repaid the gool. or by any collateral agreement it was to have been repaid, and this manner of contract had been contrived to avoid the ftatute, it would have been otherwife; but as it is here, it is only a purchase of an annuity of gol. for thirty-nine years and three quarters for 300l. determinable by the grantor, at the end of four years if he pleafed, And accord ingly the jury found the defendant not guilty.

So in the cafe at bar, Harding was not obliged to pay the 120. but at his election he might pay it if he would, and thereby determine the annuity; fo that, in truth, it is nothing but a bargain for an annuity of 20l. per annum, fecured as above upon the rectory and tithes of Grafton, but determinable fooner if See Cro. Jac. Harding the grantor pleafed, and is not a loan of money, to be re507.508. paid in all events, and where there is not a loan of money or fome thing elfe to be repaid, or returned again, in all events, there can be no ufury-Wherever the principal money is at risk and hazard, and not to be repaid in all events there cannot be ufury; the grant of an annuity for lives not only exceeding the rate allowed for intereft, but alfo exseeding the known proportion for contracts of this kind, in confideration of a certain fum of money, is not within the meaning of the ftatute of ufury, unless there were fome underhand bargain for the fecurity of the repayment of the principal confideration-money. 1 Hawk. pl. coron. 247. fect. 15:

Although

Although the original converfation was concerning a loan of money, yet, if that loan is not carried into execution, but in ftead thereof an annuity is granted in confideration of fo much money advanced and paid by the plaintiff to the defendant, and which he might never be obliged to repay, it is no loan, but à fair contract for the purchase of an annuity.

The cafe of Tanfield verfus Finch, Cro. Eliz. 27. and 1 Anderfon 121. S. C. is very applicable to the prefent cafe; Finch gave to Tanfield 5661. for an annuity of 120l. per annum, during twenty-three years, it was held that this is clearly no ufury, when there was no communication between them to have any confideration for the loan of the 5661.; for this annuity was purchafed bonâ fide, without any corrupt intent or bargain; and if it had been 40l. per annum for forty years for 100l. it had been no ufury, no more than if one for 100l. purchases lands worth 40l. per annum. Another matter was in this cafe; that after the grant of the annuity of 120l. for twenty-three years for the 5661. in hand paid, Tanfield for the affurance of the annuity, in- Vide 5 Repe feoffed Finch of land worth 100l. per annum, to the use of Tan- 69 Burton's field and his heirs, upon condition that if the money were not paid, it fhould be to the use of Finch in fee; and all the juftices held it was no ufury, for the mortgage was only for the assurance of the annuity.

It was holden by the whole court in Fuller's cafe 4 Leon. 208. that if one gives 300l. to another to have an annuity of 50l. affured to him for one hundred years, if he, his wife and four of his children fhall fo long live, that this is not ufury; fo, if there had not been any condition; but care is to be taken that there is no communication of borrowing any money before. Cro, Jac. 252. S. P.

Although there is a recital in the deed, in the prefent case of a lending, yet it clearly appears, that it was a contract for the purchase of an annuity: Harding the defendant, in his affidavit which has been read, fays it was an annuity; he fays, to the best of his remembrance, the agreement was that he might repay the principal to the plaintiff within five years, if he thought proper; fo that it certainly was in the option of the defendant whether he would pay the principal back again or not,

It appears clearly from the cafes cited, that if the contract had been an abfolute grant of an annuity, it would not have been ufurious, and fhall the provifo which is for the grantor's benefit, make that contract ufurious which would not have been fuch

without

cafe.