of dower, gave rise to another limitation, (usually called dower | uses), which, by the intervention of a vested estate in a trustee, prevented dower from attaching. The law of dower has been recently materially altered. See Dower.

The courts of equity, in the exercise of their new jurisdiction over trusts, have wisely avoided, in a great degree, those mischiefs which made uses intolerable. The statute of frauds, 29 Car. 2. c. 3. having required that every declaration, assignment, or grant of any trust, in lands and hereditaments, (except such as arise from implication or construction of law,) shall be made in writing signed by the party, or by his written will; the courts now consider a trust-estate (either when expressly declared or resulting by such implication) as equivalent to the legal ownership, governed by the same rules of property, and liable to every charge in equity, which the other is subject to in law: and, by a long series of uniform determinations, for now near a century past, with some assistance from the legislature, they have raised a new system of rational jurisprudence, by which trusts are made to answer in general all the beneficial ends of uses without their inconvenience or frauds. The trustee is considered as merely the instrument of conveyance, and can in no shape affect the estate, unless by alienation for a valuable consideration to a purchaser without notice; which, as cestui-que-use is generally in possession of the land, is a thing that can rarely happen. 2 Freem. 43. The trust will descend, may be aliened, is liable to debts, to executions on judgments, statutes, and recognizances, (by the express provision of the statute of frauds,) to forfeiture, to leases, and other incumbrances, nay, even to the curtesy of the husband, as if it was an estate at law. It was not until recently subjected to dower (see now that title), more from a cautious adherence to some hasty precedents, than from any well-grounded principle. 1 Chanc. Rep. 254; 2 P. Wms. 640. It hath also been held not liable to escheat to the lord, in consequence of attainder or want of heirs; because the trust could never be intended for his benefit. Hardw. 494; Burgess and Wheat, 1 Black. 123. See Trusts.

The statute of uses has given efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort as private as possible, and to save the trouble of making livery of seisin, the only ancient conveyance of corporeal freeholds; the security and notoriety of which public investiture (Blackstone considers) abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead: but which has yielded among other assurances to a species of conveyance called a covenant to stand seised to uses; by which a man, seised of lands, covenants, in consideration of blood or marriage, that he will stand seised of the same to the use of his child, wife, or kinsman; for life, in tail, or in fee. Here the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land, without ever seeing it, by a kind of parliamentary magic. But this conveyance can only operate, when made upon such weighty and interesting considerations as those of blood or marriage. 2 Comm. c. 20. See Conveyance, Covenant to stand seised.

USER DE ACTION. Is the pursuing or bringing an action in the proper county, &c. Broke, 64. USHER, Fr. huissier, a door-keeper. An officer in the king's house, as of a privy chamber, &c.

There are also ushers of the Courts of Chancery and Exchequer.

USUCAPTION, usucaptio.] The enjoying, by continu ance of time, a long possession, or prescription. Termes de la Ley. Property acquired by use or possession.

USUFRUCT. Is a tenure introduced by the Scotch law from the civil law: it is the right of life-rent possession, without destroying or wasting the subject over which the tenure extends. The proprietor of the subject is termed the fiar; the property the fee; and the person possessed, the life-renter.

USUFRUCTUARY, usufructuarius.] One that hath the use, and reaps the profit of a thing.

USURPATION, usurpatio.] The using that which is another's; an interruption or disturbing a man in his right and possession, &c.

Usurpations in the civil and canon law are called intrusions; and such intruders, having not any right, shall submit, or be excommunicated and deprived, &c by Boniface's Const. Gibs. Codex, 817.

For usurpations of advowsons, see Advowson, III. As to usurpations of franchises, see Corporation, Quo Warranto.

USURY,

USURA.] Money given for the use of money; it is par ticularly defined to be the gain of any thing by contract above the principal, or that which was lent, exacted in consideration of loan thereof, whether it be of money, or any other thing. 3 Inst. 151. Some make usury to be the profit exacted for a loan made to a person in want and distress; but properly it consists in extorting an unreasonable rate for money, beyond what is allowed by positive law.

The letting money out at interest, or upon usury, was against the common law; and in former times, if any one, after his death, had been found to be an usurer, all his goods and chattels were forfeited to the king, &c. And, according to several

ancient statutes, all usury is unlawful; but at this time neither the common or statute law absolutely prohibit usury. 3 Inst. 151, 152. By this is meant interest for money lent, not exceeding the settled rate: interest being the lawful gain; usury the extortion of unlawful gain. See Interest.

The church, at common law, held jurisdiction over usurers "for the good of their souls." Pro reformatione morum et pro salute animæ. 15 Edw. 1. c. 6; Roll. Abr. tit. Usurers, and was wont to punish them by excommunication and censure, until they made restitution; and to grant them pardon only on condition, " on dum tamen," that they forsook their evil courses. Canon. 109; Ex. of Neshec. 31. Most of the early acts of parliament contain a saving clause in favour of such jurisdiction. It seems, however, that it either had not exclusive authority over usurers, or if so, that it was invaded at an early period by the temporal courts; for it appears that in the fifteenth year of the reign of Edward III. A. D. 1541, the clergy, through the archbishop of Canterbury, and other bishops, complained that "the justices had punished usurers," to which an answer was returned, making a distinction between the living and the dead usurers, "that the king and his heirs shall have the cognizance of usurers dead. That his majesty might take possession of their wealth; and the ordinances of the holy church, the cognizance of them in life, as to them appertaineth, to make compulsion by the censures of the holy church for the sin, to make restitution of the usuries taken against the laws of the holy church." 15 Ed. 3. c. 6; Roll. Abr. tit. Usurers. And it was a charge to justices in eyre to enquire who had died usurers, which being then a crime second only to murder, was punishable by forfeiture of the usurer's goods and chattels to the king, and the disherision of his heir. Brac. lib. 2. c. 26; Glanv. lib. 7. c. 16; Ibid. lib. 10. c. 8. § 3; vide Mirror des Justices, lib. 17. c. 1. § 17; but this was confined to those who were found by inquest, within a year and a day of their deaths, to have died "habitual usurers,' and not when before death they had discontinued the practice, and done penance for it. 3 Hen. 7. c. 5. Kelly on Usury, 16.

Spiritual censures have failed to check usury; various statutes (3 Hen. 7. c. 5; 3 Hen. 7. c. 6; 11 Hen. 7. c. 8.) were passed for its suppression previous to the 37 Hen. 8. c. 9; which was the first act recognising the legality of taking interest upon loans; yet the old statutes, even when legalizing interest at certain rates, bear witness to the violent prejudices still existing against the practice.

By the 37 Hen. 8. c. 9. 10l. per cent. was allowed as the legal rate of interest; but by 5 & 6 Edw. 6. c. 20. it was observed that the above statute, allowing this rate of interest, had been construed to give a license and sanction to all usury, not exceeding 10l. per cent.; and this construction was declared to be utterly against Scripture; and therefore all persons were forbid to lend or forbear by any device, for any usury, increase, lucre, or gain whatsoever, on pain of forfeiting the thing, and the usury or interest, and of being imprisoned and fined.

And so the law stood till the 13 Eliz. c. 8. which reciting "that all usury being forbidden by the laws of God, is sin, and detestable," revived the 37 Hen. 8. c. 9. and ordained that all brokers should be guilty of a præmunire who transacted any contracts for more, and the securities themselves should be void.

By the 21 Jac. 1. c. 17. which reduced the rate of interest to 81. per cent., it was provided, that "nothing in the law shall be construed to allow the practice of usury in point of religion or conscience." Rolle says, that this clause was introduced to satisfy the bishops, who would not pass the bill without it. Oliver v. Oliver, Roll. R.

The rate of interest having been lowered in 1650, during the Usurpation, to 6l. per cent. the same reduction was reenacted after the Restoration, by 12 Car. 2. c. 13. And

VOL. II. .

lastly, this rate of interest was reduced to 51. per cent. by 12 Ann. st. 2. c. 16.

The prejudices of early times (Blackstone remarks) against the taking of interest appear to have worn off in some degree in the reign of Henry VIII.; a rational commerce having taught the nation, that an estate in money, as well as an estate in land, houses, and the like, might be let out to hire, without the breach of one moral or religious duty. And indeed, when the source of this prejudice is examined, it will be found to have originated in a political, and not a moral precept; for though the Jews were prohibited from taking usury, that is interest, from their brethren, they were in express words permitted to take it from a stranger. 2 Comm. 455, 456.

And that the prohibition to the Jews was political, not moral, and consequently does not extend to other nations, was the opinion of Grotius and Puffendorff, who have treated the subject at length. For a full statement of the reasonings on the question, whether receiving money is against conscience and natural law, and for a refutation of old and vulgar errors which held it to be so, see Grotius de Jure, B. et P. lib. xi. c. xii. § 20; Puffendorf, Droit de la R. lib. v. c. vii. § 8, 9, 10; Rutherforth's Instit. N. L. B. i. c. xiii. The passage in St. Luke, c. 19, v. 22, "Wherefore then gavest thou not thy money into the bank, that at my coming I might have required mine own with usury?" (see St. Matthew, c. xxv. v. 27), seems to show that the usage existed at Jerusalem of placing money at interest in the hands of bankers, and was not deemed unlawful.

Calvin and St. Thomas Aquinas both agree that the receipt of usury is not contrary to Scripture. Calv. Epist. de Usurá, St. Thomas Aqu. Op. de Usur. c. 4.

Now by the 12 Ann. st. 2. c. 16. no person shall take, directly or indirectly, for loan of any money, or any thing, above the value of 51. for the forbearance of 1001. for a year, and so proportionably for a greater or less sum; and all bonds, contracts, and assurances made for payment of any principal sum to be lent on usury, above the rate of 51. per cent. shall be utterly void: and whoever shall take, accept, or receive by way of corrupt bargain, loan, &c. a greater interest, shall forfeit treble the money borrowed, one half of the penalty to the prosecutor, the other to the king: and if any scrivener or broker takes more than 5s. per cent. procuration money, or more than 12d. for making a bond, he shall forfeit 201. with costs, and suffer half a year's imprisonment.

By 58 Geo. 3. c. 93. reciting that by the laws in force all contracts and assurances whatsoever for payment of money, made for a usurious consideration, are utterly void; and also reciting that in the course of mercantile transactions negotiable securities often pass into the hands of persons who have discounted the same, without any knowledge of the original considerations for which the same were given; and that the avoidance of such securities in the hands of such bona fide indorsees without notice is attended with great hardship and injustice: it is enacted "that no bill of exchange, or promissory note, (drawn or made after the passing the act) shall, though it may have been given for a usurious consideration, or upon a usurious contract, be void in the hands of an indorsee for a valuable consideration, unless such indorsee had, at the time of discounting or paying such consideration for the same, actual notice that such bill or note had been originally given for a usurious consideration, or upon a usurious contract." It may be doubted whether this act received all the consideration due to the subject; and whether an exception ought not to have been made as to the first and immediate indorsees of the parties to the usury, which latter seem the principal persons benefited by the act.

Before the passing of the above statute, 58 Geo. 3. c. 93. it was held that a bill of exchange, or note, given in consequence of an usurious contract, was absolutely void, even in the hands of an innocent person, who might have taken it in the fair and regular course of business, without any notice of 4 Z

the usury and that evidence of usury was a good defence, in an action brought upon such bill or note against the drawer, acceptor, or indorser. Lowe v. Waller, Doug. 708. But where A. for an usurious consideration gave his promissory note to B., who transferred it to C. for a valuable consideration, without notice of the usury, and afterwards A. gave a bond to C. for the amount, the Court of K. B. determined that the bond was valid: though they held that if the bond had been given in consideration of the note, it would have been void. 8 T. R. 390.

By the act, renewing the Bank charter, (3 & 4 Wm. 4. c. 98. §7), bills of exchange and promissory notes, not exceeding three months' date, or not having more than that time to run, may be discounted at any rate of interest that may be agreed on without incurring the penalties of usury.

A warrant of attorney given to secure the amount of a bill at three months, discounted at more than 51. per cent. interest, and which was dishonoured when due, was held to be also protected by the above statute. 4 N. & M. 302.

With respect to the propriety of repealing all restraints on the amount of interest, or consideration, to be taken for the loan of money, much discussion has lately taken place; and great differences between those who ought to be well informed on the subject. For a statement of the general arguments, see Evans's Collection of Statutes, Part III., Class v. note on the 37 Hen. 8. c. 9.

And see the question as to the policy of laws regulating the rate of interest, discussed with ingenuity and clearness, by Mr. Bentham," Defence of Usury, showing the impolicy of the present legal Restraints," 1818.

Having given this historical summary of the law of usury, we will now proceed to enquire more particularly, I. What is Usury.

II. Of Relief from Usury at Law and in Equity.
III. Of the Penalties for Usury.

I. It is not necessary that money should be actually advanced to constitute the offence of usury; but any contrivance or pretence whatever to gain more than legal interest, where it is the intent of the parties to contract for a loan, will be usury; as where a person applies to a tradesman to lend him money, who, instead of cash, furnishes him with goods, to be paid for at a future day, but at such an exorbitant price as to secure to himself more than legal interest upon the amount of their intrinsic value, this is an usurious contract. The question of usury, or whether a contract is a colour and pretence for an usurious loan, or is a fair and honest transaction, must, under all its circumstances, be determined by a jury, subject to the correction of the court by a new trial. Comp. 112, 770; Doug. 708; 3 T. R. 531.

It is remarkable that one particular species of indirect usury is guarded against by the 37 Hen. 8. c. 9. and this part of the statute seems still in force. By this it is enacted that no person shall sell his merchandizes to any other, and within three months after buy the same, or any part thereof, upon a lesser price, knowing them to be the same, on pain to forfeit treble the value; half to the informer and half to the king; and also to be punished by fine and imprisonment.

To make usury there must be either a direct loan and a taking of more than legal interest for the forbearance of payment; or there must be some device for the purpose of concealing or evading the appearance of a loan and forbearance where in truth it was such. 4 East, 55.

In all questions, in whatever respect repugnant to the sta tute, the nature and substance of the transaction, and the view of the parties, must be ascertained to satisfy the court that there is a loan and borrowing; and where the real truth is a loan of money, the wit of man cannot find a shift to take it out of the statutes. Comp. 115, 796; Doug. 712.

A man surrenders a copyhold estate to another upon condition that if he pays 801. at a certain day, then the surren der to be void; and after, it is agreed between them that the money shall not be paid, but that the surrenderor shall forfeit, &c. in consideration whereof the surrenderee promises to pay to the surrenderor on a certain day 60l. or 61. per annum from the said day pro usu et interesse of the said 60%. till that sum is paid; this 67. shall be taken to be interesse damnorum, and not lucri, and but limited as a penalty for nonpayment of the 60l. as a nomine pœnæ, &c. 2 Roll. Rep. 469; i Danv. Abr. 44. On a loan of 1007, or other sum of money for a year, the lender may agree to take his interest halfyearly or quarterly; or to receive the profits of a manor or lands, &c. and it will be no usury though such profits are rendered every day. Cro. Jac. 26.

Where a bond was conditioned for the payment of 100%. by quarterly payments of 51. each, and interest at 51. per cent. with a memorandum indorsed, that at the end of each year the year's interest due was to be added to the principal, and then the 201. received in the course of the year was to be deducted, and the balance to remain as principal; this was held not to be usurious, 4 T. R. 613; and this judgment was affirmed in the Exchequer chamber. 2 H. Bl. 144.

If a grant of rent, or lease for 201. a year of land which is worth 1007. per annum, be made for one hundred pounds, it is not usurious, if there be not an agreement that this grant or lease shall be void upon payment of the principal and arrears, &c. Jenk. Cent. 249. But if two men speak toge ther, and one desires the other to lend him an hundred pounds, and for the loan of it he will give more than legal interest; and, to evade the statute, he grants to him 30% per annum out of his land for ten years, or makes a lease for one hundred years to him, and the lessee regrants it upon condition that he shall pay 301. yearly for the ten years; in this case it is usury, though the lender never have his own hundred pounds again. 1 Cro. 27. See 1 Leon. 119.

if possibly the principal and interest are in hazard, upon a contingency or casualty, or if there is a hazard that one may have less than his principal, as when a bond is to pay money upon the return of a ship from sea, &c. these are not usury.

So an agreement for the payment of the purchase money of an estate by instalments, with interest beyond the legal rate, held not to be usurious, where the sum stipulated for as interest was in fact part of the purchase money. 1 M. & R. 143; 7 B. & C. 453.

H. having taken a building lease of land at 1081. per annum, assigned over the lease to R. for 2300l. (the value of the premises being proved to be about 8001.) and on the same day agreed to take the premises as tenant to R. and subject to the same covenants as in the building lease, but at an increased rent of 3951.; and there was a stipulation that H. should be at liberty, upon giving six months' notice, to repurchase the lease for the sum of 2300l. On H.'s becoming bankrupt his assignees brought an ejectment against the tenant, claiming under R., and the learned judge left it to the jury to say whether the transaction was substantially a purchase or a lease by R. to H.: if they thought the latter, the deed was void for usury: and the jury having found it the latter, the court refused to disturb the verdict. In such cases it is a question of fact for the jury, whether the transaction is bona fide or a colour for an usurious loan. 3 B. & A. 664; and see 5 Price, 560; 4 Camp. 1. As to cases where a lease granted in consideration of a loan of money is considered usurious, see 1 Ball & Beat. 116, 125, 129; 1 Scho. & Lef. 182; 2 Id. 218.

Loans on contingencies are not usurious, on account of the risk incurred. Thus the grant of an annuity for lives, not only exceeding the rate allowed for interest, but also the proportion for contracts of this kind, in consideration of a certain sum of money, is not within the statutes against usury; and so of a grant of an annuity on condition, &c. Cro. Jac. 253; 2 Lev. 7. See 1 Sid. 182; and ante, tit. Annuities for Lives. Where an annuity of 500l. was granted in consideration of 35001. redeemable upon payment of the original consideration with all arrears, costs, and expenses, upon six months' notice or payment of half a year's annuity; and an agreement was entered into for the cessation of the annuity in consideration of a bill of exchange for 5000l. payable in three years, which 50001 was made up by the original purchase money and arrears of the annuity, an allowance for redeeming without notice the interest of 5000l. for three years, and the balance paid in cash, this deduction of the three years' interest, in the first place, and at the time of the advance, being held to exceed the legal rate of interest, the transaction was deemed usurious. 3 Bos. & Pull. 154.

Where an annuity was granted for a term of years, to be paid half-yearly, and the grantor gave to the purchaser promissory notes, each for half a year's payment, payable at the times when the instalments became respectively due; and it appeared that the payments would discharge the principal sum together with interest at the rate of nearly 127. per cent.; the transaction was held to be usurious. 1 Russ. & M. 45. The grantor of an annuity, having agreed with the grantee to redeem, drew a bill of exchange for 5000l. at three years, which the grantee discounted in the following manner: he took 40831. 6s. 8d. as the amount of the purchase money and arrears; advanced 1687. 13s. 4d. to the grantor in cash, and retained 750l. as interest for three years on 5000l. Held that the transaction was usurious. 3 B. & P. 154.

The risk of the insolvency of the grantor of an annuity otherwise usurious is not such a risk of the principal as will make the grant good. 3 N. & M. 665.

Where interest exceeds 5l. per cent. per annum on a bond,

lends to D. three hundred pounds on bond, upon an adventure during the life of E. for such a time; if therefore D. pays to B. twenty pounds in three months, and at the end of six months the principal sum, with a farther præmium at the rate of 6d. per pound a month; or if before the time mentioned E. dies, then the bond to be void; this, differing from the hazard in a bottomry bond, was adjudged an usurious contract. Carthew, 67, 68; Comberb. 125. One hundred pounds is lent to have one hundred and twenty pounds at the year's end upon a casualty; if the casualty goes to the interest only, and not the principal, it is usury. The difference is, that where the principal and interest are both in danger of being lost, there the contract for extraordinary interest is not usurious; but when the principal is well secured, it is otherwise. 3 Salk. 391. See Insurance, IV. as to Bottomry Bonds.

The loan of money produced by the sale of stock (or valued with reference to the price of stock at the time of the loan) on an agreement that the borrower shall, at a certain day, replace (or purchase) stock to the amount of the stock sold (or purchasable at the time of the loan) with such interest in the mean time as the stock itself might have produced, is not usurious; not even if there is a condition in the alternative to repay the money on a subsequent day; unless the transaction be colourable, and a mere device to obtain more than the legal interest. 3 T. R. 531; 8 T. R. 162; 8 East, 304.

Where stock was lent upon a bond to replace it on a given day, with interest at 51. per cent. in the mean time upon the sum which the stock produced, the stock not having been replaced at the time, it was held that the lender was entitled to the amount produced by the sale of the stock with interest, and not compellable to accept the amount of the stock (which had fallen) with the dividends which had accrued due in the mean time. 4 Ves. 492. But where a certain amount of stock was to be transferred, or the value thereof (at a particular day then past, when a loan ought to have been repaid) paid at the option of the lender, with interest in the mean time, the master of the rolls ruled the contract to be usurious, as it reserved the capital with legal interest, and likewise a contingent advantage, without putting either capital or interest in any kind of risk, and it was usurious to stipulate for the chance of that advantage. 17 Ves. 44.

So where A. lent 400l. stock to B. taking as security an agreement from B. to replace the stock on request, and a bond for the payment of the produce of the stock, and reserving to himself the dividends of the stock for interest, and the option either to have the stock replaced or the produce of it paid in money with interest at 57. per cent.; this was held an usurious bargain. White v. Wright, 5 D. & R. 110; 3 B. & C. 273; and see 11 East, 612; 1 Moo. & Malk. Ca. 411; 3 B. & C. 267.

Where bankers agreed to give credit on account in a certain sum, for which the person credited was to purchase stock of a certain amount, and which, at the then current price, was more than the money credited would purchase, and was to account for the dividends from the last dividend day, and the sum was credited accordingly, and drafts honoured by the bankers; the Court of K. B. held, that the contract was usurious, though the price of the stocks was less than when several of the sums were advanced; but that the party was entitled to credit in account for the amount agreed upon. 11 East, 612.

Where money was advanced on the security of omnium, which was to be taken back by the borrower at a fixed advance of price at a day certain, and the difference in price