Page:The English Reports v1 1900.pdf/686

The Master accordingly, by his report dated the 8th of December 1755, certified, that he found there was due to the plaintiffs, on the foot of the said annuity, to and for the 10th day of October then last, being the 29th of September 1755, old stile, the sum of £4200 English value, which, at the rate of £8 6s. 8d. by the hundred, made £4550 Irish value. This report was, by an order dated the 24th of December 1755, absolutely confirmed.

[432] And on the 20th of February 1756, the cause came on again upon the Master's report, and the merits, when his Lordship was pleased to decree, that the appellant should pay to the respondents, the executors of the said John Grant, the said sum of £4550 together with interest for the same, from the 24th day of December then last past, being the time of confirming the said report; and that the appellant should also pay to the respondents the growing annuity of £300 a year, in the pleadings mentioned, in English value, from time to time as the same should become due; (that is to say,) one half year by the time the other should become due and payable, according to the covenants in the deed mentioned. And the respondent Joseph Brand was to have and recover his costs against the other respondents, and they to have the same over, together with their own costs, against the appellant; and each party was to be at liberty to resort to the court, for such further directions as should from time to time be thought necessary.

From both these decrees the present appeal was brought, and on behalf of the appellant it was contended (C. Pratt, T. Sewell), that the power of Courts of Equity to carry contracts into execution, being merely discretionary, should never be exercised but in cases where the contracts themselves are free from every imputation of injustice, unfairness, or hardship. But the contract with the appellant was of a different nature: the terms of it were usurious and corrupt, insomuch, that had the appellant redeemed the annuity in question, at the time limited, Mr. Grant would have received for the loan or use of £2100 for three years and a quarter, the sum of £975 which was above nine times more than the legal interest. But supposing this in strictness of law not to amount to usury, yet considering the circumstances, and great distress of the appellant, and the inequality of the con- sideration given for the annuity, a Court of Equity ought not to have lent its aid towards carrying into execution a contract attended with such extraordinary hardships on the appellant; and even if the respondents could be considered as having an absolute right to the annuity, the Court should have left them to their remedy at law. But further, as the annuity was only granted in the nature of a security for the £2100 advanced to the appellant, and was redeemable, therefore if the respondents were entitled to any relief, the Court should have confined it within the common rules of Equity, and directed an account to be taken of what was due to them for principal and interest, after a deduction and allowance of the several sums paid by the appellant to their testator, and either have decreed the appellant to stand foreclosed of all equity of redemption, in default of payment of what should be so found due, or at most ought only to have decreed him to pay what should, after such deduction and allowance, be so found due for principal and interest. That supposing the respondents to be clearly entitled to the annuity, and the arrears thereof, yet they could only be so entitled, subject to the appellant's right of redemption. But the decree was absolute for payment of the annuity for the future, as well as the arrears, [433] without any power or right of redemption, of which right the appellant was thereby precluded, contrary to the terms of that very contract, under which the respondents claimed the annuity: besides, by this decree, the Court had extended its relief beyond the penalty of the bond executed by the appellant, at the time of his entering into the contract; which penalty was, and in a case so circumstanced, ought, by a Court of Equity, to be considered as the standard and measure of damages for a breach of the contract, fixed and settled by the respondent's testator himself.

On the other side it was insisted (A. Forrester, E. Bishop), that from the nature of this whole transaction, there did not appear to be the least ground for imputing any imposition or unfairness, either in Mr. Grant, or his counsel, the respondent Mr. Brand, who was a gentleman of very fair character and credit in his profession, and who alone transacted the whole of this affair on the part of Mr. Grant without the intervention of any broker or other assistant. The first applica-