Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of Title by Gift, Grant, and Contract
WE are now to proceed, according to the order marked out, to the discussion of two of the remaining methods of acquiring a title to property in things personal, which are much connected together, and answer in some measure to the conveyances of real estates; being those by gift of grant, and by contract: whereof the former vests a property in possession, the latter a property in action.
VIII. GIFTS then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent: and they may be divided, with regard to their subject matter, into gifts or grants of chattels real, and gifts or grants of chattels personal. Under the head of gifts or grants of chattels real may be included all leases for years of land, assignments, and surrenders of those leases; and all the other methods of conveying an estate less than freehold, which were considered in the twentieth chapter of the present book, and therefore need not be here again repeated: though these very seldom carry the outward appearance of a gift, however freely bestowed; being usually expressed to be made in consideration of blood, or natural affection, or of five or ten shillings nominally paid to the grantor; and, in case of leases, always reserving a rent, though it be but a peppercorn: any of which considerations will, in the eye of the law, convert the gift, if executed, into a grant; if not executed, into a contract.
GRANTS or gifts, of chattels personal, are the act of transferring the right and the possession of them; whereby one man renounces, and another man immediately acquires, all title and interest therein: which may be done either in writing, or by word of mouth1 attested by sufficient evidence, of which the delivery of possession is the strongest and most essential. But this conveyance, when merely voluntary, is somewhat suspicious: and is usually construed to be fraudulent, if creditors or others become sufferers thereby. And, particularly, by statute 3 Hen. VII. c. 4. all deeds of gift of goods, made in trust to the use of the donor, shall be void; because otherwise persons might be tempted to commit treason or felony, without danger of forfeiture; and the creditors of the donor might also be defrauded of their rights. And by statute 13 Eliz. c. 5. every grant or gift of chattels, as well as lands, with intent to defraud creditors or others,2 shall be void as against such persons to whom such fraud would be prejudicial; but, as against the grantor himself, shall stand good and judicial; but, as against the grantor himself, shall stand good and effectual: and all persons partakers in, or privy to, such fraudulent grants, shall forfeit the whole value of the goods, one moiety to the king, and another moiety to the party grieved; and also on conviction shall suffer imprisonment for half a year.
A TRUE and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately; as if A gives to B 100£ or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor’s power to retract it; though he did it without any consideration or recompense:3 unless it be prejudicial to creditors; or the donor were under any legal incapacity, as infancy, coverture, duress, or the like; or if he were drawn in, circumvented, or imposed upon, by false pretenses, ebriety [intoxication], or surprise. But if the gift does not take effect, by delivery of immediate possession, it is then not properly a gift, but a contract: and this a man cannot be compelled to perform, but upon good and sufficient consideration; as we shall see under our next division.
IX. A CONTRACT, which usually conveys an interest merely in action, is thus defined: “an agreement, upon sufficient consideration, to do or not to do a particular thing.” From which definition there arise three points to be contemplated in all contract; 1. The agreement: 2. The consideration: and 3. The thing to be done or omitted, or the different species of contracts.
FIRST then it is an agreement, a mutual bargain or convention; and therefore there must at least be two contracting parties, of sufficient ability to make a contract: as where A contracts with B to pay him 100£ and thereby transfers a property in such sum to B. Which property in however not in possession, it could not be transferred to another person by the strict rules of the ancient common law: for no chose in action could be assigned or granted over,4 because it was though to be a great encouragement to litigiousness, if a man were allowed to make over to a stranger his right of going to law. But this nicety is now disregarded: though, in compliance with the ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And therefore, when in common acceptation a debt or bond is said to be assigned over, it must still be sued in the original creditor’s name; the person, to whom it is transferred, being rather an attorney than an assignee. But the king is an exception to this general rule; for he might always either grant or receive a chose in action by assignment:5 and our courts of equity, considering that in a commercial country almost all personal property must necessarily lie in contract, will protect the assignment of a chose in action, as much as the law will that of a chose in possession.6
THIS contract or agreement may be either express or implied. Express contracts are where the terms of the agreement are openly uttered and avowed at the time of the making, as to deliver an ox, or ten load of timber, or to pay a stated price for certain goods. Implied are such as reason and justice dictate, and which therefore the law perfumes that every man undertakes to perform. As, if I employ a person to do any business for me, or perform any work; the law implies that I undertook or contracted, to pay him as much as his labor deserves. If I take up wares from a tradesman, without any agreement of price, the law concludes that I contracted to pay their real value. And there is also one species of implied contracts, which runs through and is annexed to all other contracts, conditions, and covenants; viz. that if I fail in my part of the agreement, I shall pay the other party such damages as he has sustained by such my neglect or refusal. In short, almost all the rights of personal property (when not in actual possession) do in great measure depend upon contracts of one king or other, or at least might be reduced under some of them: which indeed is the method taken by the civil law; it having referred the greatest part of the duties and rights, which it treats of, to the head of obligations ex contractu [from a contract] and quasi ex contractu [like a contract].7
A CONTRACT may also be either executed, as if A agrees to change horses with B, and they do it immediately; in which case the possession and the right are transferred together: or in may be executory, as if they agree to change next week; here the right only vests, and their reciprocal property in each other’s horse is not in possession but in action: for a contract executed (which differs nothing from a grant) conveys a chose in possession; a contract executory conveys only a chose in action.
HAVING thus shown the general nature of a contract, we are, secondly to proceed to the consideration upon which it is founded; or the reason which moves the party contracting to enter into the contract. “It is an agreement, upon sufficient consideration.” The civilians hold, that in all contracts, either express or implied, there must be something given in exchange, something that is mutual or reciprocal.8 This thing, which is the price or motive of the contract, we call the consideration: and it must be a thing lawful in itself, or else the contract is void. A good consideration, we have before seen,9 is that of blood or natural affection between near relations; the satisfaction accruing from which the law esteems an equivalent for whatever benefit may move from one relation to another.10 This consideration may sometimes however be set aside, and the contract become void, when it tends in its consequences to defraud creditors or other third persons of their just rights. But a contract for any valuable consideration, as for marriage, for money, for work done, or for other reciprocal contracts, can never be impeached at law; and, if it be of a sufficient adequate value, is never set aside in equity: for the person contracted with has then given an equivalent in recompense, and is therefore as much an owner, or a creditor, as any other person.
THESE valuable considerations are divided by the civilians11 into four species. 1. Do, ut des [I give, so you give]: as when I give money or goods, on a contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond, or promise of repayment; and all sales of goods, in which there is either an express contract to pay so much for them or else the law implies a contract to pay so much as they are worth. 2. The second species is, facio ut facias [I do, so you do]: as when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together; or to do any other positive acts on both sides. Or, it may be to forbear on one side in consideration of something done on the other; as, that in consideration A, the tenant, will repaid his house, B, the landlord, will bot sue him for waste. Or, it may be for mutual forbearance on both sides; as, that in consideration that A will not trade Lisbon, B will not trade to Marseilles; so as to avoid interfering with each other. 3. The third species of considerations is, facio, ut des [I do, so you give]: when a man agrees to perform any thing for a price, either specifically mentioned, or left to the determination of the law to set a value on it. As when a servant hires himself to his master, for certain wages or an agreed sum of money: here the servant contracts to do his master’s service, in order to earn that specific sum. Otherwise, if he be hired generally; for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4. The fourth species is, do ut facias [I give, so you do]: which is the direct counterpart of the other. As when I agree with a servant to give him such wages upon his performing such work: which, we see, is nothing else but the last species inverted; for servus facit, ut herus det [the servant does, so the heir gives], and herus dat, ut servus faciat [the heir gives, so the servant does].
A CONSIDERATION of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum [naked contract] or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law; and a man cannot be compelled to perform it.12 As if one man promises to give another 100£ here there is nothing contracted for or given on the one side, and therefore there is nothing binding on the other. And, however a man may or may not be bound to perform it, in honor or conscience, which the municipal laws do not take upon them to decide; certainly those municipal laws will not compel the execution of what he had no visible inducement to engage for: and therefore our law has adopted13 the maxim of civil law,14 that ex nudo pacto non oritur actio [a naked contract cannot support an action]. But any degree of reciprocity will prevent the pact from being nude: nay, even if the thing be founded on a prior moral obligation, (as a promise to pay a just debt, though barred by the statute of limitations) it is no longer nudum pactum. And as this rule was principally established, to avoid the inconvenience that would arise from setting up mere verbal promises, for which no good reason could be assigned,15 it therefore does not hold in some cases, where such promise is authentically proved by written documents. For if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of a consideration in order to evade the payment: for every bond from the solemnity of the instrument,16 and every note from the subscription of the drawer,17 carries with it an internal evidence of a good consideration. Courts of justice will therefore support them both, as against the contractor himself; but not to the prejudice of creditors, or strangers to the contract.
WE are next to consider, thirdly, the thing agreed to be done or omitted. “A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing.” The most usual contracts, whereby the right of chattels personal may be acquired in the laws of England, are, 1. That of sale or exchange. 2. That of bailment. 3. That of hiring and borrowing. 4. That of debt.
1. SALE or exchange is a transmutation of property from one man to another, in consideration of some recompense in value: for there is no sale without a recompense; there must be quid pro quo.18 If it be a commutation of goods for goods, it is more properly an exchange; but, if it be a transferring of goods for money, it is called a sale: which is a method of exchange introduced for the convenience of mankind, by establishing an universal medium, which may be exchanged for all sorts of other property; whereas if goods were only to be exchanged for goods, by way of barter, it would be difficult to adjust the respective values, and the carriage would be intolerably cumbersome. All civilized nations adopted therefore very early the use of money; for we find Abraham giving “four hundred shekels of silver, current money with the merchant,” for the field of Machpelah;19 though the practice of exchanges still subsists among several of the savage nations. But with regard to the law of sales and exchanges, there is no difference. I shall therefore treat of them both under the denomination of sales only; and shall consider their force and effect, in the first place where the vendor has in himself, and secondly where he has not, the property of the thing sold.
WHERE the vendor has in himself the property of the goods sold, he has the liberty of disposing of them to whomever he pleases, at any time, and in any manner: unless judgment has been obtained against him for a debt or damages, and the writ of execution is actually delivered to the sheriff. For then, by the statute of frauds,20 the sale shall be looked upon as fraudulent, and the property of the goods shall be bound to answer the debt, from the time of delivering the writ. Formerly it was bound from the teste, or issuing, of the writ,21 and any subsequent sale was fraudulent; but the law was thus altered in favor of purchasers, though it still remains the same between the parties: and therefore, if a defendant dies after the awarding and before the delivery of the writ, his goods are bound by it in the hands of his executors.22
IF a man agrees with another for goods at a certain price, he may not carry them away before he has paid for them; for it is no sale without payment, unless the contrary be expressly agreed. And therefore, if the vendor says, the price of a beast is four pounds, and the vendee says he will give four pounds, the bargain is struck; and they neither of them are at liberty to be off, provided immediate possession be tendered by the other side. But if neither the money be paid, nor the goods delivered, nor tender made, nor any subsequent agreement be entered into, it is no contract, and the owner may disposed of the goods as he pleases.23 But if any part of the price is paid down, if it be but a penny, or any portion of the goods delivered by way of earnest (which the civil law calls arrha, and interprets to be “emptionis-venditionis contractae argumentum” [“a token of a contract for purchase and sale”],24 the property of the goods is absolutely bound by it: and the vendee may recover the goods by action, as well as the vendor may the price of them.25 And such regard does the law pay to earnest as an evidence of a contract, that, by the same statute 29 Car. II. c. 3. no contract for the sale of goods, to the value of 10£ or more, shall be valid, unless the buyer actually receives part of the goods sold, by way of earnest on his part; or unless he gives part of the price of the vendor by way of earnest to bind the bargain, or in part of payment; or unless some note in writing be made and signed by the party, or his agent, who is to be charged with the contract. And, with regard to goods under the value of 10£ no contract of agreement for the sale of them shall be valid, unless the goods are to be delivered within one year, or unless the contract be made in writing, and signed by the party who is to be charged therewith. Anciently, among all the northern nations, shaking of hands was held necessary to bind the bargain; a custom which we still retain in many verbal contracts. A sale thus made was called handsale, “venditio per mutuam manuum complexionem” [“a sale by the mutual joining of hands”];26 till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof.
AS soon as the bargain is struck, the property of the goods is transferred to the vendee, and that of the price to the vendor; but the vendee cannot take the goods, until he renders the price agreed on.27 But if he tenders the money to the vendor, and he refuses it, the vendee may seize the goods, or have an action against the vendor for detaining them. And by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A sells a horse to B for 10£ and B pays him earnest, or signs a note in writing of the bargain; and afterwards, before the delivery of the horse or money paid, the horse dies in the vendor’s custody; still he is entitled to the money, because by the contract, the property was in the vendee.28 Thus may property in goods be transferred by sale, where the vendor has such property in himself.
BUT property may also in some cases be transferred by sale, though the vendor has none at all in the goods: for it is expedient that the buyer, by taking proper precautions, may at all events be secure of his purchase; otherwise all commerce between man and man must soon be at an end. And therefore the general rule of law is,29 that all sales and contracts of any thing vendible, in fairs or markets overt, (that is, open) shall not only be good between the parties, but also be binding on all those that have any right or property therein. And for this purpose, the mirrour informs us,30 were tools established in markets, viz. to testify the making of contract; for every private contract was discountenanced by law. Wherefore our Saxon ancestors prohibited the sale of any thing above the value of twenty pence, unless in open market, and directed every bargain and sale to be contracted in the presence of credible witnesses.31 Market overt in the country is only held on the special days, provided for particular towns by charter or prescription; but in London every day, except Sunday, is market day.32 The market place, or spot of ground set apart by custom for the sale of particular goods, is also in the country the only market overt;33 but in London every shop in which goods are exposed publicly to sale, is market overt, for such things only as the owner professes to trade in.34 But if my goods are stolen from me, and sold, out of market overt, my property is not altered, and I may take them wherever I find them. And it is expressly provided by statute 1 Jac. I. c. 21. that the sale of any goods wrongfully taken, to any pawnbroker in London or within two miles thereof, shall not alter the property. For this, being usually a clandestine trade, is therefore made an exception to the general rule. And, even in market overt, if the goods be the property of the king, such sale (though regular in all other respect) will in no case bind him; though it binds infants, feme coverts, idiots or lunatics, and men beyond sea or in prison: or if the goods be stolen from a common person, and then taken by the king’s officer from the felon, and sold in open market; still, if the owner has used due diligence in prosecuting the thief to conviction, he loses not his property in the goods.35 So likewise, if the buyer knows the property not to be in the seller; or there be any other fraud in the transaction; if he knows the seller to be an infant, or feme covert, not usually trading for herself; if the sale be not originally and wholly made in the Sir or market, or not at the usual hours; the owner’s property is not bound thereby.36 If a man buys his own goods in a fair or market, the contract of sale shall not bind him so as that he shall render the price, unless the property had been previously altered by a former sale.37 And, notwithstanding any number of intervening sales, if the original vendor, who sold without having the property, comes again into possession of the goods, the original owner may take them, when found in his hands who was guilty of the first breach of justice.38 By which wise regulations the common law has secured the right of the proprietor in personal chattels from being divested, for far as was consistent with that other necessary policy, that purchasers, bona fide, in a fair, open, and regular manner, should not be afterwards put to difficulties by reason of the previous knavery of the seller.
BUT there is one species of personal chattels, in which the property is not easily altered by sale, without the express consent of the owner, and those are horses; the sale of which, even in fairs or market covert, is void in many instances, where that of other property is valid: because a horse is so fleet an animal, that the stealers of them may flee far off in a short space,39 and be out of the reach of the most industrious owner. All persons therefore that have occasion to deal in horses, and are therefore liable sometimes to buy stolen ones, would do well to observe, that whatever price they may give, or how long soever they may keep possession before it be claimed, they gain no property in a horse that has been stolen, unless it be bought in a fair or market overt: nor even then, unless the directions be pursued that are laid down in the statute 2 P. & M. c. 7. and 31 Eliz. c. 12. By which it is enacted, that every horse, so to be sold, shall be openly exposed, in the time of such fair or market, for one whole hour together, between ten in the morning and sunset, in the open and public place used for such sales, and not in any private yard or stable: that the horse shall be brought by both the vendor and vendee to the tollgatherer or bookkeeper of such fair or market: that toll be paid, if any be due; and if not, one penny to the bookkeeper, who shall enter down the price, color, and marks of the horse, with the names additions, and abode of the vendee and the vendor; the latter either upon his own knowledge, or the testimony of some credible witness. And, even if all these points be fully complied with, yet such sale shall not take away the property of the owner, if within six months after the horse if stolen he puts in his claim before the mayor, or some justice, of the district in which the horse shall be found; and within forty days after that, proves such his property by the oath of two witnesses before such mayor or justice; and also tenders to the person in possession such price as he bona fide paid for him in market overt. But in case any one of the points beforementioned be omitted, or not observed in the sale, such sale is utterly void; and the owner shall not lose his property, but at any distance of time may seize or bring an action for his horse, wherever he happens to find him. Wherefore Sir Edward Coke observes,40 that, both by the common law and these two statutes, the property of horses is so well preserved, that if the owner be of capacity to understand them, and be vigilant and industrious to pursue the same, it is almost impossible that the property of any horse, either stolen or not stolen, should be altered by any sale in market overt by him that is malae fidei possessor [bad faith possessor].
BY the civil law41 an implied warranty was annexed to every sale, in respect to the title of the vendor: and so too, in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose.42 But, with regard to the goodness of the wares so purchases, the vendor is not bound to answer; unless he expressly warrants them to be found and good,43 or unless he knew them to be otherwise and has used any art to disguise them,44 or unless they turn out to be different from what he represented to the buyer.
2. BAILMENT, from the French bailer, to deliver, is a delivery of goods in trust, upon a contract expressed or implied, that the trust shall be faithfully executed on the part of the bailee. As if cloth be delivered, or (in our legal dialect) bailed, to a tailor to make a suit of clothes, he has it upon an implied contract to render it again when made, and that in workmanlike manner.45 If money or goods be delivered to a common carrier, to convey from Oxford to London, he is under a contract in law to pay, or carry, them to the person appointed.46 If a horse, or other goods, be delivered to an inn-keeper or his servants, he is bound to keep them safely, and restore them when his guest leaves the house.47 If a man takes in a horse, or other cattle, to graze and depasture in his grounds, which the law calls agistment, he takes them upon an implied contract to return them safe to the owner.48 if a pawnbroker receives plate or jewels as a pledge, or security, for the repayment of money lent thereon at a day certain, he has them upon an express contract or condition to restore them, if the pledgor performs his part by redeeming them in due time:49 for the due execution of which contract many useful regulations are made by statute 30 Geo. II. c. 24. And so if a landlord distrains goods for rent, or a parish officer for taxes, these for a time are only a pledge in the hands of the distrainors, and they are bound by an implied contract in law to restore them on payment of the debt, duty, and expenses, before the time of sale; or, when sold, to render back the overplus. If a friend delivers any thing to his friend to keep for him, the receiver is bound to restore it on demand: and it was formerly held that in the mean time he was answerable for any damage or loss it might sustain, whether by accident or otherwise;50 unless he expressly undertook51 to keep it only with the same care as his own goods, and then he should not be answerable for theft or other accidents. But now the law seems to be settled upon a much more rational footing;52 that such a general bailment will not charge the bailee with any loss, unless it happens by gross neglect, which is construed to be an evidence of fraud: but, if the bailee undertakes specially to keep the goods safely and securely, he is bound to answer all perils and damages, that may befall them for want of the same care with which a prudent man would keep his own.53
In all these instances there is a special qualified property transferred from the bailor to the bailee, together with the possession. It is not an absolute property in the bailee, because of his contract for restitution; and the bailor has nothing left in him but the right to a chose in action, grounded upon such contract, the possession being delivered to the bailee. And, on account of this qualified property of the bailee, he may (as well as the bailor) maintain an action against such as injure or take away these chattels. The tailor, the carrier, the innkeeper, the agisting [grazing] farmer, the pawnbroker, the distrainor, and the general bailee, may all of them vindicate, in their own right, this their possessory interest, against any stranger or third person.54 For, as such bailee is responsible to the bailor, if the goods are lost damaged by his willful default or gross negligence, or if he do not deliver up the chattels on lawful demand, it is therefore reasonable that he should have a right to recover either the specific goods, or else a satisfaction in damages, against all other persons, who may have purloined or injured them; that he may always be ready to answer the call of the bailor.
3. HIRING and borrowing are also contract by which a qualified property may be transferred to the hirer or borrower: in which there is only this difference, that hiring is always for a price, a stipend, or additional recompense; borrowing is merely gratuitous. But the law in both cases is the same. They are both contracts, whereby the possession and a transient property is transferred for a particular time or use, on condition and agreement to restore the goods so hired or borrowed, as soon as the time is expired or use performed; together with the price or stipend (in case of hiring) either expressly agreed on by the parties, or left to be implied by law according to the value of the service. By this mutual contract, the hirer or borrower gains a temporary property in the thing hired, accompanied with an implied condition to use in with moderation and not abuse it; and the owner or lender retains a reversionary interest in the same, and acquires a new property in the price or reward. Thus if a man hires or borrows a horse for a month, he has the possession and a qualified property therein during that period; on the expiration of which his qualified property determines, and the owner becomes (in case of hiring) entitled to the premium or price, for which the horse was hired.55
THERE is one species of this price or reward, the most usual of any, but concerning which many good and learned men have in former times very much perplexed themselves and other people, by raising doubts about its legality in foro conscientiae [as a matter of conscience]. That is, when money is lent on a contract to receive not only the principal sum again, but also an increase by way of compensation for the use; which is generally called interest by those who think it lawful, and usury by those who do not so. It may not be amiss therefore to enter into a short inquiry, upon what footing this matter of interest or usury does really stand.
THE enemies to interest in general make no distinction between that and usury, holding any increase of money to be indefensibly usurious. And this they ground as well on the prohibition of it by the law of Moses among the Jews, as also upon what is laid down by Aristotle,56 that money is naturally barren, and to make it breed money is preposterous, and a perversion of the end of its institution, which was only to serve the purposes of exchange, and not of increase. Hence the school divines have branded the practice of taking interest, as being contrary to the divine law both natural and revealed; and the canon law,57 has proscribed the taking any, the least, increase for the loan of money as a mortal sin.
BUT, in answer to this, it may be observed, that the Mosaical precept was clearly a political, and not a moral precept. It only prohibited the Jews from taking usury from their brethren the Jews; but in express words permitted them to take it of a stranger:58 which proves that the taking of moderate usury, or a reward for the use, for so the word signifies, is not malum in se, since it was allowed where any but an Israelite was concerned. And as to Aristotle’s reason, deduced from the natural barrenness of money, the same may with equal force be alleged of houses, which never breed houses; and twenty other things, which nobody doubts it is lawful to make profit of, by letting them to hire. And though money was originally used only for the purposes of exchange, yet the laws of any state may be well justified in permitting it to be turned to the purposes of profit, if the convenience of society (the great end for which money was invented) shall require it. And that the allowance of moderate interest tends greatly to the benefit of the public, especially in a trading country, will appear from that generally acknowledged principle, that commerce cannot subsist without mutual and extensive credit. Unless money therefore can be borrowed, trade cannot be carried on: and if no premium were allowed for the hire of money, few persons would care to lend it; or at least the case of borrowing at a short warning (which is the life of commerce) would be entirely at an end. Thus, in the dark ages of monkish superstition and civil tyranny, when interest was laid under a total interdict, commerce was also at its lowest ebb, and fell entirely into the hands of the Jews and Lombards: but when men’s minds began to be more enlarged, when true religion and real liberty revived, commerce grew again into credit; and again introduced with itself its inseparable companion, the doctrine of loans upon interest.
AND, really, considered abstractedly from this its use, since all other conveniences of life may either be bought or hired, but money can only be hired, there seems no greater impropriety in taking a recompense or price for the hire of this, than of any other convenience. If I borrow 100£ to employ in a beneficial trade, it is but equitable that the lender should have a proportion of my gains. To demand an exorbitant price is equally contrary to conscience, for the loan of a horse, or the loan of a sum of money: but a reasonable equivalent for the temporary inconvenience the owner may feel by the want of it, and for the hazard of his losing it entirely, if not more immoral in one case than it is in the other. And indeed the absolute prohibition of lending upon any, even moderate interest, introduces the very inconvenience which it seems meant to remedy. The necessity of individuals will make borrowing unavoidable. Without some profit allowed by law there will be but few lenders: and those principally bad men, who will break through the law, and take a profit; and then will endeavor to indemnify themselves from the danger of the penalty, by making that profit exorbitant. Thus, while all degrees of profit were discountenanced, we find more complaints of usury, and more flagrant instances of oppression, than in modern times, when money may be easily had at a low interest. A capital distinction must therefore be made between a moderate and exorbitant profit; to the former of which we usually give the name of interest, to the latter the truly odious appellation of usury: the former is necessary in every civil state, if it were but to exclude the latter, which ought never to be tolerated in any well-regulated society. For, as the whole of this matter is well fumed up by Grotius,59 “if the compensation allowed by law does not exceed the proportion of the hazard run, or the want felt, by the loan, its allowance is neither repugnant to the revealed nor the natural law: but if it exceeds those bounds, it is then oppressive usury; and though the municipal laws may give it impunity, they never can make it just.”
WE see, that the exorbitance or moderation of interest, for money lent, depends upon two circumstances; the inconvenience of parting with it for the present, and the hazard of losing it entirely. The inconvenience to individual lenders can never be estimated by laws; the rate therefore of general interest must depend upon the usual or general inconvenience. This results entirely from the quantity of specie or current money in the kingdom: for, the more specie there is circulating in any nation, the greater superfluity there will be, beyond what is necessary to carry on the business of exchange and the common concerns of life. In every nation or public community there is a certain quantity of money thus necessary; which a person well skilled in political arithmetic might perhaps calculate as exactly, as a private banker can the demand for running cash in his own shop: all above this necessary quantity may be spared, or lent, without much inconvenience to the respective lenders; and the greater this national superfluity is, the more numerous will be lenders, and the lower ought the rate of the national interest to be: but where there is not enough, or barely enough, circulating cash, to answer the ordinary uses of the public, interest will be proportionably high; for lenders will be but few, as few can submit to the inconvenience of lending.
SO also the hazard of an entire loss has its weight in the regulation of interest: hence, the better the security, the lower will the interest be; the rate of interest being generally in a compound ratio, formed out of the inconvenience and the hazard. And as, if there were no inconvenience, there should be no interest, but what is equivalent to the hazard; so, if there were no hazard, there ought to be no interest, save only what arises from the mere inconvenience of lending. Thus, if the quantity of specie in a nation be such, that the general inconvenience of lending for a year is computed to amount to three per cent: a man that has money by him will perhaps lend it upon good personal security at five per cent, allowing two for the hazard run; he will lend it upon landed security, or mortgage, at four per cent, the hazard being proportionably less; but he will lend it to the state, on the maintenance of which all his property depends, at three per cent, the hazard being none at all.
BUT, sometimes the hazard may be greater, than the rate of interest allowed by law will compensate. And this give rise to the practice, 1. Of bottomry, or respondentia. 2. Of policies of insurance.
AND first, bottomry (which originally arose from permitting the master of a ship, in a foreign country, to hypothecate the ship in order to raise money to refit) is in the nature of a mortgage of a ship; when the owner takes up money to enable him to carry on his voyage, and pledges the keel or bottom of the ship (pars pro toto [part for the whole]) as a security for the repayment. In which case it is understood, that, if the ship be lost, the lender loses also his whole money; but, if it returns in safety, then he shall receive back his principal, and also the premium or interest agreed upon, however it may exceed the legal rate of interest. And this is allowed to be a valid contract in all trading nations, for the benefit of commerce, and by reason of the extraordinary hazard run by the lender.60 And in this case the ship and tackle, if brought home, are answerable (as well as the person of the borrower) for the money lent. But if the loan is not upon the vessel, but upon the goods and merchandise, which must necessarily be sold or exchanged in the course of the voyage, then only the borrower, personally, is bound to answer the contract; who therefore in this case is said to take up money at respondentia. These terms are also applied to contracts for the repayment of money borrowed, not on the ship and goods only, but on the mere hazard of the voyage itself; when a man lends a merchant 1000£ to be employed in a beneficial trade, with condition to be repaid with extraordinary interest, in case such a voyage be safely performed:61 which kind of agreement is sometimes called foenus nauticum [naval usury], and sometimes usura maritime [maritime usury].62 But, as this gave an opening for usurious and gaming contracts, especially upon long voyages, it was enacted by the statute 19 Geo. II. c. 37. that all monies lent on bottomry or at respondentia, on vessels bound to or from the East Indies, shall be expressly lent only upon the ship or upon the merchandise; that the lender shall have the benefit of salvage; and that, if the borrower has not on board effects to the value of the sum borrowed, he shall be responsible to the lender for so much of the principal as has not been laid out, with legal interest and all other charges, though the ship and merchandise be totally lost.
SECONDLY, a policy of insurance is a contract between A and B, that, upon A’s paying a premium equivalent to the hazard run, B will indemnify or insure him against a particular event. This is founded upon one of the principles as the doctrine of interest upon loans, that of hazard; but not that of inconvenience. For if I calculate the chance that she performs her voyage to be twenty to one against her being lost: and, if she be lost, I lose 100£ and get 5£ Now this is much the same as if I lend the merchant, whose whole fortunes are embarked in this vessel, 100£ at the rate of eight per cent. For by a loan I should be immediately out of my money, the inconvenience of which we have computed equal to three per cent: if therefore I had actually lent him 100£ I must have added 3£ on the score of inconvenience, to the 5£ allowed for the hazard; which together would have made 8£ But as, upon an insurance, I am never out of my money till the loss actually happens, nothing is therein allowed upon the principle of inconvenience, but all upon the principle of hazard. Thus too, in a loan, if the chance of repayment depends upon the borrower’s live, it is frequent (besides the the usual rate of interest) for the borrower to have his life insured till the time of repayment; for which he is loaded with an additional premium, suited to his age and constitution. Thus, if Sempronius has only an annuity for his life, and would borrow 100£ of Titius for a year; the inconvenience and general hazard of this loan, we have seen, are equivalent 10 5£ which is therefore the legal interest: but there is also a special hazard in this case; for, if Sempronius dies within the year, Titius must lose the whole of his 100£. Suppose this chance to be as one to ten: it will follow that the extraordinary hazard is worth 10£ more; and therefore that the reasonable rate of interest in this case would be fifteen per cent. But this the law, to avoid abuses, will not permit to be taken: Sempronius therefore gives Titius the lender only 5£ the legal interest; but applies to Gaius an insurer, and gives him the other 10£ to indemnify Titius against the extraordinary hazard. And in this manner may any extraordinary or particular hazard be provided against, which the established rate of interest will not reach; that being calculated by the state to answer only the ordinary and general hazard, together with the lender’s inconvenience in parting with his specie for the time.
THE learning relating to marine insurances has of late years been greatly improved by a series of judicial decisions, which have now established the law in such a variety of cases, that (if well and judiciously collected) they would form a very complete title in a code of commercial jurisprudence. But, being founded on equitable principles, which chiefly result from the special circumstances of the case, it is not easy to reduce them to any general heads in mere elementary institutes. Thus much may however be said; that, being contracts, the very essence of which consists in observing the purest good faith and integrity, they are vacated by any the least shadow of fraud or undue concealment: and, on the other hand, being much for the benefit and extension of trade, by distributing the loss or gain among a number of adventurers, they are greatly encouraged and protected both by common law and acts of parliament. But, as a practice had obtained of insuring large sums without having any property on board, which were called insurances, interest or no interest; and also of insuring the same goods several times over; both of which were a species of gaming, without any advantage to commerce, and were denominated wagering policies: it is therefore enacted by the statute 19 Geo. II. c. 37. that all insurances, interest or no interest, or without farther proof of interest than the policy itself, or by way of gaming or wagering, or without benefit of salvage to the insurer, (all which had the same pernicious tendency) shall be totally null and void, except upon privateers, or ships in the Spanish and Portuguese trade, for reasons sufficiently obvious; and that no re-assurance shall be lawful, except the former insurer shall be insolvent, a bankrupt, or dead; and lastly that, in the East India trade, the lender of money on bottomry, or at respondentia, shall alone have a right to be insured for the money lent, and the borrower shall (in case of a loss) recover no more upon any insurance that the surplus of his property, above the value of his bottomry or respondentia bond. But, to return to the doctrine of common interest on loans:
UPON the two principles of inconvenience and hazard, compared together, different nations have at different times established different rates of interest. The Romans at one time allowed centesimae, or twelve per cent, to be taken for common loans; but Justinian63 reduced it to trientes, or one third of the as or centesimae, that is, four per cent; but allowed higher interest to be taken of merchants, because there the hazard was greater.64 So too Grotius informs us,65 that in Holland the rate of interest was then eight per cent in common loans, but twelve to merchants. Our law establishes one standard for all alike, where the pledge or security itself is not put in jeopardy; lest, under the general pretense of vague and indeterminate hazards, a door should be opened to fraud and usury: leaving specific hazards to be provided against by specific insurances, or by loans upon respondentia, or bottomry. But as to the rate of legal interest, it has varied and decreased for two hundred years past, according as the quantity of specie in the kingdom has increased by accessions of trade, the introduction of paper credit, and other circumstances. The statute 37 Hen. VIII. c. 9. confined interest to ten per cent, and so did the statute 13 Eliz. c. 8. But as, through the encouragements given in her reign to commerce, the nation grew more wealthy, so under her successors the statute 21 Jac. I. c. 17. reduced it to eight per cent; as did the statute 12 Car. II. c. 13. to six: and lastly by the statute 12 Ann. St. 2. c. 16. it was brought down to five per cent yearly, which is now the extremity of legal interest that can be taken. But yet, if a contract, which carries interest, be made in a foreign country, our courts will direct the payment of interest according to the law of that country in which the contract was made.66 Thus Irish, American, Turkish, and Indian interest, have been allowed in our courts, to the amount of even twelve per cent. For the moderation or exorbitance of interest depends upon local circumstances; and the refusal to enforce such contracts would put a stop to all foreign trade.
4. THE last general species of contracts, which I have to mention, is that of debt; whereby a chose in action, or right to a certain sum of money, is mutually acquired and lost.67 This may be the counterpart of, and arise from, any of the other species of contracts. As, in case of a sale, where the price is not paid in ready money, the vendee becomes, indebted to the vendor for the sum agreed on; and the vendor has a property in this price, as a chose in action, by means of this contract of debt. In bailment, if the bailee loses or detains a sum of money bailed to him for any special purpose, he becomes indebted to the bailor in the same numerical sum, upon his implied contract, that he shall execute the trust reposed in him, or repay the money to the bailor. Upon hiring or borrowing, the hirer or borrower, at the same time that he acquires a property in the thing lent, may also become indebted to the lender, upon his contract to restore the money borrowed, to pay the price or premium of the loan, the hire so the horse, or the like. Any contract in short whereby a determinate sum of money becomes due to any person, and is not paid but remains in action merely, is a contract of debt. And, taken in this light, in comprehends a great variety of acquisition; being usually divided into debts of record, debts by special, and debts by simple contract.
A DEBT of record is a sum of money, which appears to be due by the evidence of a court of record. Thus, when any specific sum is adjudged to be due from the defendant to the plaintiff, on an action or suit at law; this is a contract of the highest nature, being established by the sentence of a court of judicature. Recognizances also are a sum of money, recognized or acknowledged to be due to the crown or a subject, in the presence of some court or magistrate, with a condition that such acknowledgment shall be void upon the appearance of the party, his good behavior, or the like: and these, together with statutes merchant and statutes staple, etc, it forfeited by non-performance of the condition, are also ranked among this first and principal class of debts, viz. debts or record; since the contract, on which they are founded, is witnessed by the highest kind of evidence, viz. by matter of record.
DEBTS by specialty, or special contract, are such whereby a sum of money becomes, or is acknowledged to be, due by deed or instrument under seal. Such as by deed of covenant, by deed of sale, by lease reserving rent, or by bond or obligation: which last we took occasion to explain in the twentieth lecture of the present book; and then showed that it is an acknowledgment or creation or a debt from the obligor to the obligee, unless the obligor performs a condition thereunto usually annexed, as the payment of rent or money borrowed, the observance of a covenant, and the like; on failure of which the bond becomes forfeited and the debt becomes due in law. These are looked upon as the next class of debts after those of record, being confirmed by special evidence, under seal.
DEBTS by simple contract are such, where the contract upon which the obligation arises is neither ascertained by matter of record, nor yet by deed or special instrument, but by mere oral evidence, the most simple of any; or by notes unsealed, which are capable of a more easy proof, and (therefore only) better, than a verbal promise. It is easy to see into what a vast variety of obligations this last class may be branched out, through the numerous contracts for money, which are not only expressed by the parties, but virtually implied in law. Some of these we have already occasionally hinted at; and the rest, to avoid repetition, must be referred to those particular heads in the third book of these commentaries, where the breach of such contracts will be considered. I shall only observe at present, that by the statute 29 Car. II. c. 3. no executor or administrator shall be charged upon any special promise to answer damages out of his own estate, and no person shall be charged upon any promise to answer for the debt of default of another, or upon any agreement in consideration of marriage, or upon any contract or sale of any real estate, or upon any agreement that is not be performed within one year from the making, unless the agreement or some memorandum thereof be in writing, and signed by the party himself or by his authority.
BUT there is one species of debts upon simple contract, which, being a transaction now introduced into all sorts of civil life, under the name of paper credit, deserves a more particular regard. These are debts by bills of exchange, and promissory notes.
A BILL of exchange is a security, originally invented among merchants in different countries, for the more easy remittance of money from the one to the other, which has since spread itself into almost all pecuniary transactions. It is an open letter of request from one man to another, desiring him to pay a sum named therein to a third person on his account; by which means a man at the most distant part of the world may have money remitted to him from any trading country. If A lives in Jamaica, and owes B who lives in England 1000£ now if C be going from England of Jamaica, he may pay B this 1000£ and take a bill of exchange drawn by B in England upon A in Jamaica, and receive it when he comes thither. Thus does B receive his debt, at any distance of place, by transferring it to C; who carries over his money in paper credit, without danger of robbery or loss. This method is said to have been brought into general use by the Jews and Lombards, when banished for their usury and other vices; in order the more easily to draw their effects out of France and England, into those countries in which they had chosen to reside. The invention of them was a little earlier: for the Jews were banished out of Guinea in 1287, and out of England in 1290;68 and in 1236 the use of paper credit was introduced into the Mogul empire in China.69 In common speech such a bill is frequently called a draft, but a bill of exchange is the more legal as well as mercantile expression. The person however, who writes this letter, is called in law the drawer, and he to whom it is written the drawee; and the third person, or negotiator, to whom it is payable (whether specially named, or the bearer generally) is called the payee.
THESE bills are either foreign, or inland: foreign, when drawn by a merchant residing abroad upon his correspondent in England, or vice versa; and inland, when both the drawer and the drawee reside within the kingdom. Formerly foreign bills of exchange were much more regarded in the eye of the law than inland ones, as being thought of more public concern in the advancement of trade and commerce. But now by two statutes, the one 9 & 10 W. III. c. 17. the other 3 & 4 Ann. c. 9. inland bills of exchange are put upon the same footing as foreign ones; what was the law and custom of merchants with regard to the one, and taken notice of merely as such,70 being by those statutes expressly enacted with regard to the other. So that there is now in law no manner of difference between them.
PROMISSORY notes, or notes of hand, are a plain and direct engagement in writing, to pay a sum specified at the time therein limited to a person therein named, or sometimes to his order, or often to the bearer at large. These also by the same statute 3 & 4 Ann. c. 9. are made assignable and endorsable in like manner as bills of exchange.
THE payee, we may observe, either of a bill of exchange or promissory note, has clearly a property vested in him (not indeed in possession but in action) by the express contract of the drawer in the case of a promissory note, and, in the case of a bill of exchange, by his implied contract; viz. that, provided the drawee does not pay the bill, the drawer will: for which reason it is usual, in bills of exchange, to express that the value thereof has been received by the drawer;71 in order to show the consideration, upon which the implied contract of repayment arises. And this property, so vested, may be transferred and assigned from the payee to any other man; contrary to the general rule of the common law, that no chose in action is assignable: which assignment is the life of paper credit. It may therefore be of some use, to mention a few of the principal incidents attending this transfer or assignment, in order to make it regular, and thereby to change the drawer with the payment of the debt to other persons, than those with whom be originally contracted.
IN the first place then the payee, or person to whom or whose order such bill of exchange or promissory note is payable, may by endorsement, or writing his name in dorso or on the back of it, assign over his whole property to the bearer, or else to another person by name, either of whom is then called the endorsee; and he may assign the same to another, and so on in infinitum. And a promissory note, payable to A or bearer, is negotiable without any endorsement, and payment thereof may be demanded by any bearer of it.72 But, in case of a bill of exchange, the payee, or the endorsee, (whether it be a general or particular endorsement) is to go to the drawee, and offer his bill for acceptance; which acceptance (so as to charge the drawer with costs) must be in writing, under or on the back of the bill. If the drawee accepts the bill, either verbally or in writing,73 he then makes himself liable to pay it; this being now a contract on his side, grounded on an acknowledgment that the drawer has effects in his hands, or at least credit sufficient to warrant the payment. If the drawee refuses to accept the bill, and it be of the value of 20£ or upwards, and expressed to be for value received, the payee or endorsee may protest if for non-acceptance: which protest must be made in writing, under a copy of such bill of exchange, by some notary public; or, if no such notary be resident in the place, then by any other substantial inhabitant in the presence of two credible witnesses; and notice of such protest must, within fourteen days after, be given to the drawer.
BUT, in case such bill be accepted by the drawee, and after acceptance he fails or refuses to pay it within three days after it becomes due (which three days are called days of grace) the payee or endorsee is then to get in protested for non-payment, in the same manner and by the same persons who are to protest it in case of non-acceptance: and such protest must also be notified, within fourteen days after, to the drawer. And he, on producing such protest, either of non-acceptance or non-payment, is bound to make good to the payee, or endorsee, not only the amount of the said bills, (which he is bound to do within a reasonable time after non-payment, without any protest, by the rules of the common law74) but also interest and all charges, to be computed from the time of making such protest. But if no protest be made or notified to the drawer, and any damage accrues by such neglect, it shall fall on the holder of the bill. The bill, when refused, must be demanded of the drawer as soon as conveniently may be: for though, when one draws a bill of exchange, he subjects himself to the payment, if the person on whom it is drawn refuses either to accept or pay, yet that is with this limitation, that if the bill be not paid, when due, the person to whom it is payable shall in convenient time give the drawer notice thereof; for otherwise the law will imply it paid: since it would be prejudicial to commerce, if a bill might rise up to charge the drawer at any distance of time; when in the mean time all reckonings and accounts may be adjusted between the drawer and the drawee.75
IF the bill be an endorsed bill, and the endorsee cannot get the drawee to discharge it, he may call upon either the drawer or the endorser, or if the bill has been negotiated through many hands, upon any of the endorsers; for each endorser is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the endorser, as of the drawer. And if such endorser, so called upon, has the names of one or more endorsers prior to his own, to each of whom he is properly an endorsee, he is also at liberty to call upon any of them to make him satisfaction; and so upwards. But the first endorser has nobody to resort to, but the drawer only.
WHAT has been said of bills of exchange is applicable also to promissory notes, that are endorsed over, and negotiated form one hand to another; only that, in this case, as there is no drawee, there can be no protest for non-acceptance; or rather, the law considers a promissory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in case of non-payment by the drawer, the several endorsees of a promissory note have the same remedy, as upon bills of exchange, against the prior endorsers.
1. Perk. § 57.
2. See 3 Rep. 82.
3. Jenk. 109.
4. Co. Litt. 214.
5. Dyer. 30. Bro. Abr. tit. chose in action. 1 & 4.
6. 3 P. Wms. 199.
7. Inst. 3. 14. 2.
8. In omnibus contractibus, sive nominates sive innominatis, permutatio continetur. [In all contracts, there must be something given in exchange, something that is mutual or reciprocal.] Gravin. l. 2. § 12.
9. pag. 297.
10. 3 Rep. 83.
11. Ff. 19. 5. 5.
12. D. & t. d. 2. c. 24.
13. Bro. Abr. tit. uette. 79. Salk. 129.
14. Cod. 2. 3. 10 & 5. 14. 1.
15. Plowd. 308, 309.
16. Hardr 200.
17. 1 Ch. Rep. 157.
18. Noy’s Max. c. 42.
19. Gen. 23:16.
20. 29 Car. II. c. 3.
21. 8 Rep. 171. 1 Mod. 188.
22. Comb. 33. 12 Mod. 5. 7 Mod. 95.
23. Hob 41. Ney’s Max. c. 42.
24. Inst. 3. tit. 24.
25. Noy. ibid.
26. Stiernhook de jure Gotl. l. 2. c. 5.
27. Hob. 41.
28. Noy, c. 42.
29. 2 Inst. 713.
30. c. 1. § 3.
31. LL. Ethel. 10, 12. LL. Eadg. Wilk. 80.
32. Cro. Jac. 68.
33. Godb. 131.
34. 5 Rep. 83. 12 Mod. 521.
35. Bacon’s use of the law. 158.
36. 2 Inst. 713, 714.
37. Perk. § 93.
38. 2 Inst. 713.
39. Ibid. 714.
40. 2 Inst. 719.
41. Ff. 21. 2. 1.
42. Cro. Jac. 474. 1 Roll. Abr. 90.
43. F. N. B. 94.
44. 2 Roll. Rep. 5.
45. 1 Vern. 268.
46. 12 Mod. 482.
47. Cro. Eliz. 622.
48. Cro. Car. 271.
49. Cro. Jac. 245. Yelv. 178.
50. Co. Litt. 89.
51. 4 Rep. 84.
52. Lord Raym. 909. 12 Mod. 487.
53. By the laws of Sweden, the depositary or bailee of goods is not bound to restitution, in case of accident by fire or theft; provided his own goods perished in the same manner: “Jura enim nostra dolum praesumunt si una non pereunt.” [For our laws presume guile if they do not perish together.] (De jure Sueon. l. 2. c. 5.)
54. 13 Rep. 69.
55. Yelv. 172. Cro. Jac. 236.
56. Polit. l. 1. c. 10.
57. Decretal. l. 5. tit. 19.
58. “Unto a stranger thou mayest lend upon usury, but unto thy brother thou shalt not lend upon usury.” Deut. 23:20.
59. de j. b. & p. l. 2. c. 12. § 22.
60. Moll. de jur. mar. 361. Malyne lex mercat. b. 1. c. 31. Cro. Jac. 208. Bynkersh. quaest. jur. privat. l. 3. c. 16.
61. 1 Sid. 27.
62. Molloy ibid. Malyne ibid.
63. Cod. 4. 32. 26. Nov. 33, 34, 35.
64. A short explication of these terms, and of the division of the Roman as, will be useful to the student, not only for understanding the civilians, but also the more classical writers, who perpetually refer to this distribution. Thus Horace, ad Pisones. 325.
|Romani pueri longis rationibus assemDiscunt in partes centum diducere. DicatFilius Albini, si de quincunce remota est
Uncia, quid superet? poterat dixisse, triens: euRem poteris servare tuam! redit uncia, quid fit?Semis.
|[But as for us, our Roman youths are bredTo trades, to cast accounts, to write and read:Come hither, child, (suppose ’tis Albine’s son)Hold up thy head; take five from forty-one;
And what remains? Just thirty-six: Well done.Add seven, what makes it then? Just forty-eight:Ah, thou must be a man of an estate!]Creech’s Horace, p. 325.1. 487.
It is therefore to be observed, that, in calculating the rate of interest, the Romans divided the principal sum into an hundred parts; one of which they allowed to be taken monthly: and this, which was the highest rate of interest permitted, they called usurae centesimae, amounting yearly to twelve per cent. Now as the as, or Roman pound, was commonly used to express any integral sum, and was divisible into twelve parts or unciae, therefore these twelve monthly payments or unciae were held to amount annually to one pound, or as usurarius; and so the usurae asses were synonymous to the usurae centesimae. And all lower rates of interest were denominated according to the relation they bore to this centesimal usury, or usurae asses: for the several multiples of the unciae, or duodecimal parts of the as, were known by different names according to their different combinations; sextans, quadrans, triens, quincunx, semis, septunx, bes, dodrans, dextrans, deunx, containing respectively 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, unciae or duodecimal parts of an as. (Ff. 28. 5. 50. § 2. Gravin. orig. jur. civ. l. 2. § 47.) This being premised, the following table will clearly exhibit at once the subdivisions of the as, and the denominations of the rate of interest.
|USURAE||PARTES ASSIS.||PER ANNUM.|
|Asses, sive centesimae||integer||12 per cent.|
|Dextances, vel decunces||5/6||10|
65. de jur. b. & p. 2. 12. 22.
66. 1 Equ. Cas. abr. 289. 1 P. Wms. 395.
67. F. N. B. 119.
68. 2 Carte. 203. 206.
69. Mod. Un. Hist. iv. 499.
70. 1 Roll. Abr. 6.
71. Stra. 1212.
72. 2 Show. 235. Grant v. Vaughan. T. 4 Geo. III. B. R.
73. Stra. 1000.
74. Lord Raym. 993.
75. Salk. 127.