might be. To spoil the Egyptian was a virtue. So moneylending as a business in Palestine fell into the hands of the Gentiles, such as the Phoenicians, in Rome of the aliens, and in mediæval Europe of the Jews.

From the legal recognition of usury between a citizen and an alien to that between citizens was but a short step, but the idea that a bargain for high interest in perpetuity was taking advantage of the borrowers' necessities, survived and forms the root principle of the Money Lenders' Act, 1900. To protect the borrower from extortion, the rate of interest was limited by the legislature. But from the time of the Twelve Tables in Rome to the abolition of the usury statutes in England such legislation has been wholly ineffective. Legislative restraints of legitimate transactions are always and everywhere doomed to failure, and the English Usury Laws have been no more successful in preventing, or even in restricting, usury than the Roman enactments of earlier date.

Much of our Common Law, as is now recognised, was reduced from the rude mass of mere custom into an articulate system by the "Popish clergymen" in the service of the Crown, and usury was declared unlawful at Common Law. Doubtless, it had been forbidden before the Conquest in most of the Saxon communities, but the Church was well aware of the popular idea upon this subject, and, whether or not the clergy were responsible for the Common Law prohibition, they were quick to invest the primitive and popular prejudice with a religious sanction.

But in spite of religious and legal sanctions moneylending grew apace. Means of evading every prohibition. were always forthcoming, until at length the statute 37 Hen VIII., c. 9, after repealing all prior statutes, whilst declaring usury to be "a thing unlawful,"-a declaration intended no doubt to appease the tender conscience of the Lords

Spiritual-legalised the practice by fixing the maximum rate of interest on all commercial and real transactions at 10 per cent.

This rate was subsequently reduced to 8 per cent. by 21 Jac. I., c. 17; to 6 per cent. by 12 Car. II., c. 13; and finally to 5 per cent. by 12 Ann. stat. 2, c. 16, at which figure it stood at the repeal of the Usury Laws in 1854.

Contemporaneously with these laws against usury, Courts of Equity in certain cases granted relief where borrowers had been subjected to oppression, extortion or unfair treatment. It was suggested in the case of Benyon v. Cook (1874), L.R. 10 Ch. 391, that with the repeal of the Usury Laws, this equitable jurisdiction no longer existed, but Jessel, M.R., made it abundantly clear that the repeal had no such effect whatever. From the earliest days of the Court of Chancery, suitors had been successful in obtaining relief in the case of transactions, which would not have been considered fraudulent at Common Law. It was not enough at Common Law that fraud, in the sense of misrepresentation, and taking undue advantage of the position of the party said to be imposed upon had been committed, but some act of "offensive dishonesty" must have been brought home to the party charged.

In a few isolated cases the equitable doctrine, however, has also been applied at Common Law. In assumpsit to pay for a horse a barley-corn per nail, doubling for every nail in its shoes, it was averred in the declaration that there were thirty-two nails in every shoe, which, doubling for every nail, came to 500 quarters of barley; and Hyde, C. J., directed the jury to give the value of the horse only in damages and £8 being given, judgment for that amount was had, since a catching bargain was not to be taken advantage of (James v. Morgan 1 Lev. iii., 16, cited in Thornborough v. Whitacre, 2 Ld. Ray, 1164).

In an action for goods sold and delivered at three months'

credit, and in case of default, interest on the principal above the legal rate, the contract was held to be a bonû-fide sale and not usurious. But otherwise if it had been merely colourable to cover a loan and evade the Statute. (Floyer v. Edwards (1774) Cowp. 112.)

This was followed by an action for money had and received to recover the additional interest in such transactions. Lord Mansfield held that though the transaction did not itself amount to usury, yet it was a hard and unconscionable advantage and therefore should not be assisted in an action for money had and received, which is an equitable action founded in conscience under the particular circumstances of each case. (Plumbe v. Carter, (1775) Cowp. 116).

In another action for money had and received, the borrower had agreed to purchase with the money lent certain goods, and upon a resale to divide the profits with the lender. The bargain was held to be unconscionable, and Lord Mansfield, in his judgment, declared "that the intention of the contract was to get more than principal and legal interest upon the note which is usury within the meaning of the statute. But suppose it was not strictly usurious, shall a man in action for money had and received which is an equitable action and founded in conscience recover such an unmeasurable and exorbitant demand as this? Most clearly he shall not." (Festons v. Brooke (1778). Cowp. 793).

Equity on the other hand, as distinguished from Common Law, in dealing with fraud, appeals to, and acts on the conscience of the parties and demands not only a formal compliance with the rules of honesty but a conscientious consideration of the interest of other people. It will take into consideration all the circumstances of the case, not only the act and intention of the party complained of but the position of the party said to be imposed upon. It will

interfere not only when actual deception has been practised but also to prevent the dishonest circumvention of one person by another.

So it came to pass that these general principles were more particularly applied by Courts of Equity in favour of a small class of persons, a result largely due, no doubt, to that tender regard for the rights of the landed interests characteristic of the times. Although these principles had been applied centuries before 1750, Lord Hardwicke in the leading case of Chesterfield v. Janssen, decided in that year, was the first to fully lay down the equitable doctrine of unconscionable bargains.

After enumerating the different species of fraud which sufficed to induce the interference of Courts of Equity, he said "The last head of fraud on which there has been reliefis that which infects bargains with heirs, reversioners or expectants, in the life of their fathers, &c., against which relief is always extended. These have generally been mixed, compounded of all or several species of fraud, there being sometimes proof of actual fraud, which is always decisive. There is always fraud presumed or inferred from the circumstances or conditions of the parties contracting, weakness on the one side, usury on the other, or extortion, or advantage, taken of that weakness. There has been always an appearance of fraud from the nature of the bargain. In most of these cases have concurred deceit and illusion on other persons not privy to the raudulent agreement. The father, ancestor or relative, from whom there was expectation of the estate, has been kept in the dark; the heir or expectant has been kept from disclosing his circumstances and resorting to them for advice, which might have tended to his relief, and also reformation; this leads the ancestor to leave his estate not to his heir or family but to a set of artful persons who have divided the spoil beforehand."

Prior to the Sales of Reversions Act 1867 bonâ-fide transactions by expectants dealing with their reversionary interests might be opened and set aside for mere inadequacy of price. Since the Act, however, no purchase made bonâfide and without fraud or unfair dealing of any reversionary interest in real or personal estate can now be opened or set aside merely on the ground of under-value, unless in deed such under-value is so gross as to be of itself clear evidence of fraud. Before this Act the onus of proving that the transaction was just and reasonable was upon the purchaser, now it lies upon the vendor to show want of bona-fides or the existence of fraud, or unfair dealing on the part of the purchaser, and unless he shows. this the transaction will stand, notwithstanding inadequacy of price. If, however, the inadequacy is so gross that the presumption of fraud arises the onus of repelling, such presumption is thrown upon the purchaser, and he must show that the transaction was fair, just, and reasonable.

Persons entitled to relief

1. Heirs, Reversioners ana Expectants.

This class was defined by Sir George Jessel in Benyon v. Cook (L.R. 10 Ch. App. 391), where he said the phrase "expectants or expectant heirs" was used in the popular

sense.

2. Persons other than Heirs, Reversioners or Expectants. Whether the narrower doctrine of unconscionable bargains relating to heirs, reversioners, or expectants, grew out of the wider doctrine applicable to all persons, or whether the latter was developed from the former, one undoubted effect of the repeal of the Usury Laws was to bring these principles into operation to a greater extent. It seems clear from the cases both before and since the repeal that the doctrine has never been limited to the small class mentioned.