1870 MILLER as to the sale of reversionary interests, and has no application to V.-C. S. the present case. Reversionary property now stands on precisely the same footing as other property: Webster v. Cook (1); in that case the interest payable was the same as in this case. It is clear, therefore, that the unfair dealing referred to in the statute must be such as in any ordinary case would vitiate a contract. Is there such a case here? Clearly not. The Plaintiff received the fullest information, and had been attended by his own solicitor. There had been neither suppressio veri nor suggestio falsi, nor fraud in any shape. The only equity alleged here was, that the Plaintiff was very much in want of money, and eager to get it, and that the interest was high; but that was not sufficient of itself to entitle him to relief in this Court. If it were to be held that no contract between a borrower and lender could stand where a high rate of interest was charged, it would lead to serious consequences. Mr. Dickinson, in reply: Mere inadequacy of consideration, I admit, may be insufficient, but the Court will look at the surrounding circumstances. In Shelly v. Nash (2) the Court took that view. In that case a reversionary interest was sold by auction, and the question was, was there fraud or imposition. There are other cases, but they have not really altered the law of the Court: Earl of Chesterfield v. Janssen (3); Croft v. Graham (4). v. Соок. July 13. SIR JOHN STUART, V.C.: This case has been strongly argued on the effect of the statutes against usury, and also on the construction of the recent statute as to contracts for reversionary interests. There are, however, objections to the transactions besides those which arise from the exorbitant rate of interest, and from the fact that the Plaintiff was dealing for a reversionary interest. V.-C. S. 1870 MILLER v. Соок. But as to the question on the rate of interest, it has already been settled by the Court of Appeal that the repeal of the usury laws has not affected the right of the Court to give relief against unconscionable bargains. Here the rate of interest on the first security for £50 is 20 per cent. per annum for the first month and 5 per cent. per month-that is, 60 per cent. per annum after the first month. There can be no doubt that such a rate is exorbitant and unconscionable, the Defendant being secured by the assignment of the Plaintiff's reversionary interest in a legacy of £500. And in the subsequent deed, 20 per cent. per annum, reducible on punctual payment to 10 per cent. per annum, is excessive. Considering that this rate of interest is payable on the whole amount secured, which is £200, and that only £123 was actually received by the Plaintiff, whereas interest is charged at these enormous rates on £200, the terms exacted seom to me unconscionable. Even before the repeal of the Statutes of Usury, in the cases of Plumbe v. Carter (1) and Jestons v. Brooks (2), it was held at common law that an agreement, although not usurious, if it were a hard and unconscionable bargain, should not be assisted in an action for money had and received. In Bowes v. Heaps (3), where Sir William Grant gave relief against an unconscientious bargain, he noticed the Defendant's argument that he had not used any endeavours to prevail upon the Plaintiff to enter into the transaction. Sir William Grant said, "It is not every bargain which necessity may induce one man to offer, that another is at liberty to accept." In Gwynne v. Heaton (4) Lord Thurlow set aside the transaction as to a reversionary interest, although the Defendant was not charged with misleading the Plaintiff's judgment or tampering with his poverty. When it was urged that the bargain had been hawked about and offered to several persons who had refused it, Lord Thurlow said that this only shewed the necessity the man was under. As to the argument on the recent statute concerning dealings with reversionary interests, the exception in the statute as to unfairness leaves the settled law as to cases like the present untouched. (1) Note to Floyer v. Edwards, Cowp. 116. (3) 3 V. & B. 117. (4) 1 Bro. C. C. 1, Nor is the case of the Defendant assisted by the presence of Mr. Ring, who appeared as the Plaintiff's friend. The evidence shews that the advice of Mr. Ring was founded on misunderstanding or misrepresentation. But there is a great difference between the intervention of a third party in transactions of this kind, and when there is no pressure of necessity which the friend cannot relieve. In transactions of bounty, indeed, where the advice of a judicious and impartial friend may assist and regulate, and in transactions where the pressure, not of want and of necessity, but of a confidential relation between the parties, requires the impartial advice of a friend, the intervention of a third party is important. In the present case, besides the other objections to the contract, the terms of the power of sale are oppressive, and put the Plaintiff completely at the mercy of the Defendant. The power to sell without any notice to the Plaintiff enabled the Defendant at any moment to extinguish the right of redemption. There must consequently be a declaration that the deeds are to stand as a security only for sums actually paid to the Plaintiff, with interest at 5 per cent. per annum, and an account must be taken of what is due upon that footing. The Defendant must, however, have his costs of the suit added to the amount to be found due on his securities, and there will be a decree for payment by the Plaintiff. Solicitors for the Plaintiff: Messrs. Lewis, Munns, & Co. V.-C. S. 1870 MILLER บ. Соок. C. J. B. 1870 July 1, 13. Ex parte CRAVEN. In re CRAVEN AND MARSHALL. Bankruptcy-Fraudulent Preference-Bankruptcy Act, 1869, s. 92. Sect. 92 of the Bankruptcy Act, 1869, has not altered the law with respect to fraudulent preferences, and it is still necessary, in order to constitute a fraudulent preference, that the conveyance or transfer be made voluntarily and in contemplation of bankruptcy. Therefore, where a creditor told his debtor "that he should like his money repaid," adding that "he was determined to have either the money or security," and the debtor accordingly conveyed certain property in part satisfaction of the debt, and presented a petition for liquidation shortly afterwards : Held, that the conveyance was valid, and could not be set aside as being a fraudulent preference. THIS HIS was an appeal by a purchaser under a conveyance dated the 2nd of February, 1870, against an order of the Judge of the County Court of Huddersfield, made on the application of the trustee under liquidation, setting aside a conveyance of certain real property situated at Bradford on the ground of its being a fraudulent preference. The facts appeared to be as follows: Abram Craven (the debtor) was indebted to Phineas Craven (the Appellant) in two sums of money of £200 and £250, secured by two promissory notes, on which interest had been duly paid up to January, 1869. The debtor carried on business as an innkeeper at Huddersfield in partnership with Marshall, and the business became so unprofitable that the partners had to stop payment. On the 22nd of March, 1870, the debtor presented a petition for liquidation by arrangement under sect. 125 of the Bankruptcy Act, 1869; and on the 16th of April the trustee was appointed. It appeared that in October, 1869, the Appellant, becoming alarmed at the state of the business of the debtor, was desirous of being paid, or of having some security for his money; and his affidavit (filed on the 7th of June, 1870), so far as is material, was as follows: "4. I had not pressed the said Abram Craven for payment; nor had the loan been named between us for some time before the month of October last (October, 1869). C. J. B. 1870 Ex parte In re "5. At that time I had to go to Huddersfield to look at some machinery in which I was interested, and I looked at the bankrupt's place of business to see if Mr. Marshall could give me any CRAVEN AND information as to the address of a person I wanted to see, and he went with me to try and find such person, and I afterwards returned with him to his place of business, and stayed about an hour or so. "6. Whilst I was there I observed that both Marshall and his wife seemed to be the worse for liquor, and I also observed that Marshall paid some accounts, which seemed to be his own private accounts, with money which I saw him take from the till of the firm, and I did not see him make any entry of the payment. “7. From my observation the business seemed to be conducted in a very unsatisfactory way, and I made up my mind to mention the matter to the bankrupt Craven, and insist upon payment of or security for my claim. "8. Abram Craven was expected there that night, and I waited for him, and when he came I asked him if he was returning the following day to Thornton, being the Sunday, and he said he was, and I asked him to call at my house at Bradford on his road. "9. He called the next day accordingly, and dined with me, and after dinner I walked up with him towards Thornton. I had not previously on that day mentioned his affairs to him, nor had he to me; but as we were walking I told him what I had observed the day before, and said that I should like my money to be repaid. 10. He said that he could not very well pay me just then, but that if I were wishful to have the money, he would have to try and get it. "11. He did not tell me that his firm were in difficulties, or had been served with writs. On the contrary, he said they were making money, and took £30 a week, of which half was profits. I mentioned to him his property in Thornton Road, as I knew he had it, and asked him how it stood, and he told me the amount that was owing to the building society. We discussed the value of that property, and came to the conclusion that there was not ́enough value in it to pay both me and the building society. 12. He said he would give me a security upon it if that would MARSHALL. |