FLIGHT v. REED. [714] the original usury, and is perfectly valid in law. But, in order to bring this case within the principle, all beyond legal interest must be repaid or deducted." In the report of Barnes v. Hedley in 1st Campbell, which I have before referred to, there is a judgment of Mr. J. CHAMBRE, which seems to me to be well worthy of consideration by any one who desires to ascertain what is the true law upon this subject. There is also a case which was not mentioned in the argument, Preston v. Jackes (1), which was tried before Mr. J. HOLROYD, who held that a party could not recover on a note which operated as a security for any usurious interest. This case seems to me in point for the defendant, and any *opinion of Mr. J. HOLROYD, wherever given, is entitled to the greatest weight and is of the highest authority. The result is, that in my opinion an usurious loan within the statute of Anne, and usurious interest contracted to be paid for it, is not a good consideration for a bill of exchange, and that a bill given upon such consideration is not of avail; and this opinion does not contravene the case of Barnes v. Hedley, reported in 2 Taunton, or any other case or authority which I have met with or has been referred to; but on the contrary, in my opinion, is in conformity with them all. POLLOCK, C. B.: The judgment which I am about to deliver is that of my brother WILDE and myself. My brother MARTIN having stated the pleadings, it is not necessary to repeat them. The real question raised by this demurrer is, whether there is a good consideration for the bills declared upon. The original bills were given for an advance of money with usurious interest at a time when such a transaction was forbidden by law, and were therefore void and of no legal obligation. The bills sued on were given since the repeal of the usury law, and at a time when the giving or confirming an obligation to pay any amount of interest however high was perfectly legal and binding. But the altered law did not render valid the original bills; they were void when given, and remained void and of no legal obligation up to the time when they were renewed by the bills in question. The original bills, therefore, could not form a legal consideration for those now sued upon. Indeed, there was, when the fresh bills were given, no legal obligation whatever upon the defendant to repay a single farthing of the large advance he had received. (1) 2 Stark. 237. But for that advance he has *voluntarily given these bills, and whether the law will permit and enforce such a contract is the question. During the existence of the usury law the courts of law were bound to enforce them to deal with interest above the statute rate as an unlawful and forbidden thing and to discover and defeat all attempts, direct or indirect, to give or enforce it. But the Legislature has since repealed the laws against usury, and upon a fuller and wider view of public policy declared the rate of interest on loans to be unlimited and free. The courts of law are bound with equal fidelity to give effect to this new and opposite view of the Legislature. Interest above 51. per cent. should no longer be regarded as of necessity illegal or unrighteous, and no facility should be given to escape from an obligation to repay a real advance of money, or evade a contract. willingly made, though interest should have been contracted for, which used to be at a rate called usurious rate. We make these remarks, because in argument the expression "taint of an usurious transaction" was often repeated, and the Court was pressed in language, commonly and properly used while the usury laws were in force, to give no countenance to a contract of which the origin was an advance of money with more than 51. per cent. interest. Such remarks have no application to or bearing on a contract made like that in question since the usury laws have been repealed. We therefore pass them by to consider the true question in the case, viz., whether an advance of money under such circumstances as to create no legal obligation at the time to repay it can constitute a good consideration for an express promise to do so. Such a consideration has been sometimes called a moral consideration. And we think unfortunately so; for the term *used as a definition tends to include too wide a range of objects. And there are many conjunctures in which a man may feel himself morally bound to pay money and promise to do so, which the law would not recognise as forming a good consideration. But a loan of money is a very different thing. The very name of a loan imports that it was the understanding and intention of both parties that the money should be repaid. And though at the time of the advance the law, for reasons of public policy, forbid any liability, and incapacitate the parties from making a binding contract, there is no reason why a binding contract should not be made afterwards if the legal prohibition be removed. And the consideration which would have been sufficient to FLIGHT v. REED. [ *715 ] [ *716 ] FLIGHT v. REED. [ *717 ] support the promise, if the law had not forbidden the promise to be made originally, does not cease to be sufficient when the legal restriction is abrogated. There is, therefore, reasonable ground, as it seems to us, for this qualified proposition, viz., That a man by express promise may render himself liable to pay back money which he has received as a loan though some positive rule of law or statute intervened at the time to prevent the transaction from constituting a legal debt. There is likewise authority for it. The general doctrine within which such a proposition falls is, we believe, first found promulgated in Lord Mansfield's time. It is the subject of a long note to the report of the case of Wennall v. Adney (1). It has been the subject of much discussion in many subsequent cases. It was stated most widely, and perhaps too widely, in the case of Lee v. Muggeridge (2). And it has consequently been much qualified and sometimes *disparaged since: see Eastwood v. Kenyon (3), Beaumont v. Reeve (4), Cocking v. Ward (5). But it was repeated and stated to be undoubted law by Baron PARKE, in Earle v. Oliver (6), who says, "the strict rule of the common law was no doubt departed from by Lord MANSFIELD in Hawkes v. Saunders (7) and Atkins v. Hill" (8). The principle of the rule laid down by Lord MANSFIELD, is, that where the consideration was originally beneficial to the party promising, yet, if he be protected from liability by some provision of the statute or common law meant for his advantage, he may renounce the benefit of that law; and if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by law to perform it. There is a very able note to the case of Wennall v. Adney (1) explaining this at length. The instances given to illustrate the principle are, amongst others, the case of a debt barred by certificate and by the Statute of Limitations, and the rule in these instances has been so constantly followed, that there can be no doubt that it is to be considered established law. The case of Fitzroy v. Gwillim (9) is an example of the view that has been taken of the subject even in a court of law, but although that case is certainly not law, it is quite true that courts of equity have relieved (where their interference was wanting) only on the terms of the principal and legal interest being paid. (1) 6 R. R. 780 (3 Bos. & P. 247). (3) 52 R. R. 400 (11 Ad. & El. 438). (6) 2 Ex. 71, 89. (8) Cowp. 284. (9) 1 R. R. 167 (1 T. R. 153). We think the view we have taken receives considerable support from the case of Barnes v. Hedley (1), which, if not a direct authority for the plaintiff, is somewhat similar in its *circumstances; the usurious interest was in that case struck out, but now, since the repeal of the statute of Anne, there is nothing unlawful in usurious interest. Here the defendant says, “I could not then make the promise: I can now, and I am willing to do so." The plaintiff is therefore, in our opinion, entitled to the judgment of the Court. Judgment for the plaintiff. BEST v. HAYES (2). (1 H. & C. 718-725; S. C. 32 L. J. Ex. 129.) A court of law is not bound by the principles which govern courts of equity upon a bill of interpleader, and may give relief although one of the parties has incurred to another a personal obligation independently of the question of property, and the claims are not identical. The The defendant, an auctioneer, sold for the plaintiff some furniture and paid him a part of the proceeds; but whilst the balance was in his hands G. gave him notice that the furniture belonged to her. plaintiff having brought an action against the defendant for the balance, he sought to deduct his charges for commission, &c., and applied for an interpleader order between the plaintiff and G. as to the residue; G. being willing to allow the defendant his charges: Held, that a Judge had power to make the interpleader order, if not under the 1 & 2 Will. IV. c. 58, under the 12th section of the Common Law Procedure Act, 1860 (3). THIS was a rule calling on the defendant and the claimant Jane Gallagher, to show cause why an interpleader order, made by WILDE, B., on on the the 15th of May, 1862, should not be rescinded. The affidavit of the defendant, in support of the interpleader order, stated, that the action was brought for money had and received, to recover the proceeds of certain furniture and effects, which, in March, 1862, had been intrusted by the plaintiff to the defendant, an auctioneer, to sell by auction. The furniture and effects were sold by the defendant on the 3rd, 4th and 7th of April, and produced the sum of 610l. 7s. 5d. The expenses attendant upon such sale for printer's bills, advertisements, &c., with the amount of the defendant's commission, were 481. 13s. 3d. The defendant had paid 27. 19s. 6d. to a person for taking care of the furniture and effects, by direction of the plaintiff, and 251. for rent levied by the landlord of the (1) 2 Taunt. 184. (2) Followed, Tanner v. European Bank (1866) L. R. 1 Ex. 261, 35 L. J. Ex. 151, 14 L. T. 414. Referred to, Attenborough v. St. Katherine's Docks Co. (1878) 3 C. P. D. 450, 455, 47 L. J. C. P. 763, 38 L. T. 404; Robinson v. Jenkins (1890) 24 Q. B. BEST v. HAYES. [ *719 ] [ *720 ] premises on which the furniture and effects were sold, which, The claimant, Jane Gallagher, made an affidavit in which she stated that the furniture was purchased by the plaintiff for her and on her sole account, but in his own name, under an order of the Court of Chancery of the county palatine of Lancashire, in which Johnson and others were plaintiffs and the deponent defendant. There was also an affidavit by the attorney of Gallagher, in which he stated that she was willing that the plaintiff should pay the balance into the Court of Chancery of the county palatine to the credit of the suit; and that the defendants should be relieved from any further liability, and he allowed to retain all his proper fees, costs and charges. The interpleader order (so far as material) was as follows: "Upon hearing counsel, &c., I do order that as to the sum of 2481. 3s. 8d. (1), in which the defendant claims no interest, the parties do proceed to the trial of an issue, in the Court of Exchequer, in which the said plaintiff shall be plaintiff and the said Jane Gallagher, the claimant, shall be the defendant; and that the question to be tried shall be, whether the proceeds of the sale of the goods alleged to belong to the plaintiff, and claimed by the said Jane *Gallagher, are the property of the said Jane Gallagher as against the said plaintiff. . . . The said sum of 2481. 3s. 8d. to be paid forthwith into Court, to abide the further order of this Court. And I further order that the said Jane Gallagher and the plaintiff shall be barred from prosecuting their claim against the defendant for or in respect of the said sum of 2481. 3s. 8d. "I reserve the question of costs until after the trial of the issue; and as to the remainder of the money claimed to be in the defendant's hands, the plaintiff shall be at liberty to continue this action, if he think fit, at his peril; the defendant only to set up his own claim for detention of such sum. (1) On the hearing of the interpleader summons, the plaintiff having objected to the amount of commission claimed by the defendant, he consented to give up 151., and the order was accordingly drawn up as to 2481. 38. 8d. instead of 2331. 3s. 8d. |