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He stated that he had demised part of the lands to one yames
For the plaintiff, Mr. Saurin and Mr. Boyd referred to the principle established by former decisions as ruling this case.(a)
For the defendant, The Solicitor General endeavoured to distinguish this case by the circumstances of the proposal for the loan having come from the plaintiff, and urged that the evidence was very strong that the rent agreed to be paid was the full value.
This is a case in which, on public grounds, I cannot suffer, the lease to stand. The utmost that can be said against the relief sought is, that the plaintiff is under circumstances which render him as little entitled to relief as possible, except as a distressed man, and such, the statutes against usury meant to protect., I consider that transactions of this nature are set aside by courts of equity, not with a view to the individual, but on public grounds, in order to render the lending of money generally beneficial by facilitating the means of procuring it on reasonable terms. This is the view in which the laws against usury are to be taken, and the principle on which they are to be supported, (particularly in a commercial country) against the theories of persons who have written on the subject: otherwise there is no reason why a man should not make the most of his money as well as of any other species of property.
(a) Vid. Browne v. O'Dea, supra 115 ; Dres v. Power, supra 182.
It has been urged on the part of the defendant, First. That the proposition came from Molloy and not from him: that Molloy had openly declared that the person who expected a lease must advance him money: but suppose any person were to advertise in the paper, that he would give ten per cent. for the loan of money, that would not alter the law. It is said also that the rent reserved was proved to be the full value of the land: but it is perfectly clear that the loan of money was given besides, and consequently that Irwin considered the lease to be of such value as to induce him to give that further douceur.
On public principle I cannot suffer the lease to be benificial to Irwin: it would trench so much on the statutes against usury that no transaction of this kind can stand, unless where it would work a manifest hardship and injury to the defends ant to relieve--for as this is usurious only in the contemplation of a court of equity, such a court should not relieve if it were to work such a hardship or severity as would make it unconscionable to insist on rescinding the transaction. As to Molloy, I do not think him an object to be specially relieved; therefore, as far as Irwin has any benefit, I must decree this lease to be delivered up, and Irwin-to account, but without prejudice to any claim which Mrs. Molloy may have on it. As to the lease made by Irwin, there appears nothing unfair in it, and I cannot suffer it to be affected, nor expose him to an action at the suit of the under-tenant, particularly under the circumstances of this case, in which the plaintiff, in some sort drew him into the transaction
Reg. Lib. xlix. 377. “Declare that under the circum"stances of this case the defendant, . Irwin, ought not
to derive to himself any benefit from the lease bearing 6 date the 30th day of April, 1798, in the pleadings men. “tioned, and let said lease be deposited by said defendant, .“ with the register, and let the said defendant forthwith
execute unto the plaintiff and said defendant Coote Mol. loy, a surrender of said lease by deed to be executed by
plaintiff and defendant Coote Molloy, and containing a .“ saving of all rights of said Mrs. Susannah Molloy to the " annuity of 50l. therein mentioned, in case she shall sur“ vive said plaintiff her husband, and also a saving of all “ rights of said James M’Cullagh to such parts of said pre“mises as in the answer of defendant 7. Irwin, to plain“ tiff's bill, is stated to have been granted by the said de“ fendant to said James M’Cullagh ; and refer it to the
master to take an account of what said defendant F. “ Irwin made, or without wilful default might have made " of the premises in the pleadings mentioned since he en"tered into possession thereof, and of the sums paid or al“ lowed by said defendant to plaintiff in respect of the “ rent reserved by said lease ; and in taking such account, “ let the master charge the said defendant with a fair rent " for the lands in his own occupation to the 1st of May
next; and let the master also take an account of the sums * remaining due to defendant 7. Irwin, for principal " and interest, on foot of the sum of 200l. lent by the “ defendant, Irwin, to the plaintiff on the notes in the
pleadings mentioned, and let the master in taking said
account set off the sums with which defendant 7. Irw win, shall appear chargeable on the account before di“rected against him, after allowing the sums paid or al“ lowed by him to the plaintiff for rent as aforesaid; first “ in discharge of the interest, and next to sink the princi“pal of said 2001. and let the master thereupon strike a
" balance, and let said defendant, on the 1st day of May
next, deliver to the plaintiff, Toby Molloy, the possession “ of said premises, save that part thereof comprized in the " said lease to the said James M'Cullagh, and deliver up " to the said plaintiff the counterpart of the lease executed " by: the said defendant to the said James M-Cullagh, and
procure said fames M Cullagh to attorn tenant to the " said plaintiff under the said lease, and let said defendant “ be restrained in mean time from committing any manner “ of waste on said premises."
No costs on either side.
O'DEA V. O'DEA.
feb. 24. The plaintiff having changed his solicitor, an order Whero plain . had been obtained that the plaintiff should stop proceeding solicitor, the
tiff changés his till the former solicitor was paid his costs ;- the plaintiff former solici
tor bas no right notwithstanding, set down his cause for hearing, and it be- to stop him ing now called on,
from proceed. ing till his costs
are paid "Mr. M Mahon, on the part of the defendant, moved to strike it out, upon the former order; stating this to be the constant practice, in which he was supported by the six clerks and by several practitioners.
Lord CHANCELLOR. I cannot do this ; 'it is not in my power: I never heard of such a practice before. A solicitor has advantages for the recovery of what is due to him for costs, which men in other situations have not, by keeping his client's papers ; but he has no right to stop the cause from proceeding
The cause proceeded.
VAUGHAN . FITZGERALD.
Feb, 24. Bill to perpetu. In this case the bill prayed to perpetuate the testimony of ate testimony merely, ought the witnesses to a will, and to prove its destruction and not to be brought to an
the contents thereof, and also that the copy of the will set hearing ; but if out therein might be decreed to be a true copy, The plainit prays relief, the defendant tiff examined his witnesses, and one of the defendants (the may set it down heir at law) also examined witnesses on his part. No fur, for a dismiss.
Heir at law ther proceeding having been taken by the plaintiff, the des has a right to fendant obtained the usual order to set down the cause for a bis costs, tho? he cross-exa:. dismiss. Upon its coming on this day, the practice was mine plaintiff's wit.
stated by all the six clerks to be, not to bring the cause to "* nesses : but if
a hearing in the common case of a bill to perpetuate teşti, he examines witnesses on mony to a will, as the bill prayed nothing more than to his own part, he shall not
perpetuate the testimony, which was done by the examina, have costs as tion : But here the plaintiff having prayed a special decree, to that.