Sec 461

According to modern political economy, the trade in money should be as unrestricted as the trade in goods, and laws limiting the one should be as strictly construed as laws limiting the other. In Contracts based on lotteries illegal.

Usury laws local, and to be practice, however, there is this wide difference, that usury laws are passed to regulate the traffic of subjects intra-ter-ritorially, while tariff laws are laid to regulate their traffic extra-territorially. We hear of no tariff on the exportation of money, and no usury limitations on the home sale of goods. But both as to tariff and usury laws the same tests are applicable. They both are in restraint of liberty, and are, therefore, to be strictly construed. And this view is strengthened by the gradually diminishing area of territory in which usury laws prevail.1 The presumption of sympathy with accepted economical views is now as much against the authority of usury laws as it once was in favor of them. When they exist, also, they no longer rest on a common international basis. They assume as many distinct forms as there are jurisdictions. In some states it is prescribed that all usurious contracts shall be null and void. In other states the only penalty is a forfeiture of the unlawful interest. In other states intermediate positions are taken. In this complexity of legislation it is impossible to find any common basis of agreement on which uniform international rules can rest.2

6trictly construed.

1 Waters v. Ins. Co., 5 E. & B. 870; London, etc. R. R. v. Glyn, 1 E. & E. 652.

2 Marks v. Hamilton, 7 Ex. 323; Collingridge v. Ins. Co., L. R. 3 Q. B. D. 173.

3 U. S. v. Olney, 1 Abb. U. S. 275; State v. Clarke, 33 N. H. 329; Com. v. Thacher, 97 Mass. 583; Hull v. Rug-gles, 56 N. Y. 424; Hunt v. Knickerbocker, 5 John. 327; and other cases cited Wh. Cr. L. 8th ed. sec 1491.

4 Hull v. Ruggles, 56 N. Y. 424. See, to same effect, Morris v. Blackman, 2 Hurl. & C. 912; U. S. v. Olney, 1 Deady, 461; People v. Art Union, 7 N. Y. 240; Thomas v. People, 59 111. 160; Eubnnks v. State, 3 Heisk. 488.

6 Vooden v. Shotwell, 3 Zab. 465.

1 See, however, supra, sec 362.

2 See Bispham's Eq. sec 222; Prov. Bk. v. Frost, 14 Blatch. 233; Dayton v. Moore, 30 N. J. Eq. 543; Duquesne Bank's App., 74 Penn. St. 426; Cooper v. Braswell, 59 Ga. 616.

In Montague v. Sewell, 57 Md. 407, a case in which the facts, which were numerous and complicated, indicated a loan of $30,000, at usurious interest, under the form of a ground-rent, Alvey, J., delivering the opinion of the court, said: "The form taken is in all respects legal, and the instruments used fail to disclose any taint of usury. But, as said by the supreme court in Scott v. Lloyd, 9 Pet. 446, while the purchase of an annuity, or a ground-rent, if a bona fide sale, has never been considered as usurious, though more than six per cent, profit be secured, yet it is manifest that, if giving this form to the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter.....

And as in such cases the original intention of the parties can seldom be arrived at except by resort to matters dehors the particular instruments of writing executed by them, extrinsic evidence must be received to show the real nature and intent of the transaction. Tyson v. Rickard, 3 H. & J. 109, 114; Andrews v. Poe, 30 Md.

486.....See, also, Wetter v.

Hardesty, 16 Md. 11; and Rouskulp v.

Kershner, 49 Md. 524.....

"It is insisted, however, that notwithstanding the transaction may be found to be a loan of money, and infected with usury, yet, as the defendant was entirely innocent of any participation in the original transaction, wrong to innocent and meritorious creditors, but a serious shock to national enterprise. Improvements in new countries would be slow, if capital should be exposed to such risks of forfeiture. It would be otherwise, however, if the rule be maintained that the place of performance (i. e., the place that supplies the applicatory local law) is that where the money lent is to be used. This view, it should be added, is maintained by Bar,1 and by a high French tribunal.2 It has also the sanction of an eminent Scotch court.3 Nor is this view unfamiliar to the Roman law. " Usurae vicem fructuum ob-tinent;"4 where the tree is, there properly is the fruit. It is true that this is regularly at the debtor's domicil. But if he goes to a foreign land, and uses the money there, applying it by his labor and skill to the realization of foreign staples, then the law of the place where the money is used is that which determines the interest.5 And this view derives support from parallel cases which the most eminent civilians have regarded as definitely settled.6 But where a note is made in the state of A. and discounted and delivered in the state of B., as between the two, in case of conflict, the law of B. prevails.7