mination of the account of 16th November 1790, the charges in the bill and evidence relative thereto). The result is that this account is a fabrication; and I must take it on the evidence in this case that there is no ground for saying the 1,008/. 15s. was not due on the 16th November 1790, when that bond was given: and that the several sums mentioned in the undertaking of February 1791, were acknowledged to be advanced, and did not form part of the consideration of the bond.

(His Lordship then examined the account alleged to have been settled on the 30th June 1791, and the evidence relative to it, and declared his conviction that that account as produced was also a fabrication.)

But I think there is sufficient in this case under all the circumstances, to warrant my going so far into the consideration of the bond as to direct the inquiry, whether the whole sum was fairly due either for money paid, or for interest of money, or for money agreed to be paid and afterwards paid; and if the master shall find that any sums which the defendant did agree to pay to the plaintiff in consideration of the bond, were not paid to the extent, then the bond shall be so far rectified. With respect to the matters subsequent to the bond, they are compleatly open; they are matters on which an account ought to be directed.

Then the next consideration is the leases. On this subject my mind has been inclined different ways in the course of the case, and I was impressed by the master of the rolls having directed the issues; but on considering the case and looking into the defendant's answer, I think I ought not to direct any issue, for I think the evidence on this subject

1803.

DREW

υ. POWER.

1803.

DREW

V.

POWER.

(putting Griffin's out of the case) is clear, plain, and distinct, and the defendant has had sufficient opportunity to cross-examine one witness in particular. He says in his an swer that with respect to the lease of Poulagower, there was a reference to a person skilled in the value of lands, who valued it at 200l. per annum: now either that person was Hastings, or it was a person whom the defendant might have produced and has not; if it was Hastings he ought to have cross-examined him; if it was not Hastings but some other person, that person ought to have been produced: he has not done either, and therefore has not proved what he undertook to prove on the subject; but the examination of Hastings leaves it without doubt (as no other person is brought forward) that he is the person to whom the answer alludes: now the evidence of Hastings amounts to this, that he was called on to settle the rent; but that he was to do so, considering the inducement to the transaction to be the loan of money: if he was the person alluded to by the defendant in his answer, it is evident why he did not produce him on his part: He must have known for what purpose he was produced, and therefore had full opportunity to cross-examine him if he had thought proper. Hastings has distinctly proved that the loan of money was the inducement to this lease, and if it was, it vitiates the whole transaction. When the loan I never can suffer the loan of money to be any inducement of money is an in a transaction of this kind: I do not mean advancing money inducement to granting a by way of fine or the like; but where it is a distinct loan of money to a distressed man, for which security is to be taken and he is still to continue a debtor for it. If I were to permit this to be considered as a transaction which ought to stand, I should permit a compleat evasion of the statute of usury. What is the policy of the statute of usury? The

lease it vitiates the whole transaction.

1803.

DREW

V.

POWER.

The statutes against usury founded on principles of public policy.

true reason on which the legislature has said that in bargains for money no more than a certain fixed sum shall be taken by way of interest for the loan, is founded on great principles of public policy.. First of all; it is more advantageous to the public that persons who are in possession of money should use their own industry in the employment of their money, than that they should sit idle and take the benefit of it through the industry of others: and therefore the loan of money at any large rate of interest has always been discouraged; and as a state becomes rich, the interest of money is always diminished, with a view that the man who sits idle shall receive as low a rate of interest as can induce him to lend to another. But if a consideration of any description, beyond that rate of interest, can be had, the profit derived from that is just as injurious to the public, as if it were taken in the shape of a reservation of an higher interest. And therefore the policy of the law would be completely defeated if courts were not to be jealous of such transac-` tions as these, and were not to watch them with severity, and be sure that they did not permit persons under cover of ordinary dealings between man and man, to obtain an advantage beyond the legal interest. If every man Against public could obtain for the loan of his money as high a rate of interest, without hazard, as they do who employ it in trade and manufactures which are hazardous undertakings, no man would employ his money in such hazardous undertakings: the most industrious of the people would be ground down by the usurers; they would get the profits of trade; and the enterprising and industrious trader would be undertakings. ruined: one sees every day, when traders who have been in the habit of borrowing become bankrupts, how large a share of their property is swallowed up by usurers. There is nothing clearer to my mind therefore than that in a com

policy that make profit on

those who

without hazard, should have as large a profit as those in hazardous who employ it

their money

1803.

DREW

V.

POWER.

mercial country, the statute of usury ought to be strictly enforced. Here, the parol evidence proves distinctly that loans of money were the inducement to the lease, and that on the first transaction, by a person, of the nature of whose evidence it was impossible that the defendant should not have notice, and therefore he was competent to cross-examine him, which he has not done. Other witnesses speak to the same effect; and I cannot believe that Power was not aware of what the nature of the evidence of some of these witnesses was, though that of others may have been a surprise on him.

That brings me to another part of the case to be taken into consideration; that the plaintiff was in a state of great distress. It is said he did not deserve much compassion; that his distress was occasioned by his own misconduct; that he himself is in fault. But if a man commits a crime and is thereby reduced to distress, still no person is to take advantage of his distress, though produced by his own misconduct: it is the same thing whether the distress arise from imprudence, misfortune or crime: no man has a right to take advantage of it. The plaintiff was distressed, and being so, Power advances money; in the first transactions, as I collect, Power had an advantage by way of discount; but when Drew became embarrassed, some further advantage was to be got, and these leases were that advantage. That is so clear upon the circumstances of the case, that there is nothing for a jury to try. The first lease is imputed by the bill to the transactions of 1790; but the defendant alleges that it was executed on or about April 1791, when it bears date. Supposing that to be the case: it was executed at a time when the land was actually let at a profit rent of 100% per ann. and it ought to be distinctly shewn that Drew considered the solvency of Power as a sufficient compensation to

him for foregoing the advantage of the 100l. per ann. and receiving 2001. from him instead of 300%. from the tenants. There is nothing in the case that can shew that such profit was ever in the contemplation of the parties to be given by Drew merely to secure 2001. per ann. What then was the inducement to give this advantage? it was not to secure a continuance of that 2007. supposing the value of the lands to drop, for Power had a power to determine the lease by virtue of the clause of surrender. It is evident therefore from the nature of the transaction itself, that if the lease was executed in April 1791, it must have been with a view of giving the profit rent to Power. But supposing that it was executed previous to that day, it cannot have been in Nov. 1790, according to Griffin's evidence; but if about Feb. 1791, then it is directly connected with all the transactions then taking place, and with the engagement of Power to advance the sum of money: If it was not executed till the 1st April 1791, what was the situation of the parties then? Drew was then as little a free agent as in Feb. 1791, or Nov. 1790. If all the money had been advanced it might have made some difference, though not a great deal: the difference then would have been that Drew would have stood in the situation of a debtor; but as it was, he stood in the situation of a debtor, and also of a man who expected to be relieved by further advances. Then the second lease is obtained, and it must fall if the first falls, because a dealing is established between the parties. The first lease was granted, not because Power was the tenant whom Drew chose, but because he was debtor to Power, and looking to further advances of money from him; by which means he was put in his power, and did not deal on equal terms with him.

Under these circumstances, therefore, and considering that there are no less than seven witnesses who speak distinctly to

1803.

DREW

V.

POWER.