The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-03

De sSced tee one in fsver Of the defendant must de-
eide the other in like manner.
l. VIII DO ohs~,veS also, that the opinion We have
quoted poiIts out clearly thu distinction bet veeu
statute merely forbidjiog an acS e. be done, and
ore impoeibg forfeiture or penalty for doing IL,
Iangemens on the part OF the pair,id, which relie1
on the last words Of the section Of the Jaasatnsioa
n quiriDg the Legislature to Impose forfeiures aud
penalties sgsius; usury.
The absence OF any srovsion ihictinR penalty
(say tie Supreme Court) daes not give tie party
right 10 maintain an action On She contract, II tie
law fOrbids the contract 70 BE- inside. Ana the rea-
son OF tire rule thus laid down IL thai toe contract
Being forbidden, TIE party can acquire no legal
rights un der it, and, equents, cana,t maintain
an action ia q cous Of justice 10 enforce IT, His IN
capacily 10 maintain an action upon IL Is no for
fixture or penalty, tor be acquires no rights under
it, and therefore thrYe il po.aing to forfeit The
money be ans in net forfeited, for be chooses to
rely upon the promise Of The borrower and The bor-
rover repsy him the'mopey, he may lawfully keep
IL. 1t 10 sot forfeited 80 toe State or TO any one
eise But court OF justice cannot lend iss aid to
cover it, because the contract for he loan Is one
entire thing, and consequently " altogether vail
or void, sud 1t would b. CONTRARY To the duty Of
court Of justice 10 assist party In concentrating
act which the law forbtts. The absence Of any pc.
nalfy, therefore,, IL 10 argument in support VI this
acton Bot in this case there is something mono
than the absence Of penalties ard frfesures. It is
made the duty OF the Legislature 10 ip6,t them,
anc the pf0hihisOry clause OF the constitution must
be construed now in the same NAME, and have
the ssme effect, "a II the Legislature bad performed
the duty erjoined upon it. II il true no pan.
atty or forfeiture is in uvrod unSA the IAgisla-
tnre shall prescribe it. Bat whsp that DUTY shall
have beer p rfcrned, (bs the penalty more or less)
nobody, We presume, wpuld contend that an action
cJDo still be maintained 90 the CONTRACT DDOD pay
IN 1t o, the penalty. And the acs OF DO future lie
gilation can alter the ms snins Of me words used
IN he constitution. They remain the same, aud
mnst a'wa 8 be construed aud administered 10
courts Of justice &C 0rding 70 theirsegal import,
they stsDd IN that iDstrlme Dt wbetner future legis
latuIes do or do not obey it's pdates and pass
lave to enforce is provisions. II folio Va from what
we hive sal that the first sections of tie act Of
lS45 are no kpger in force. These sections made
Q usuri0us contract legal for thu amount actually
Iosnee and auth ylizes the lender 10 recover the
AM, uIJ With six per cent interest. u makes vcid
only 90 far % the uurious interss. IL concerned,
end as necessary consequence Of this provision, it
repealed expressly ire third section Of the act OF
170. The act OF 1916 does not, therefore prohibit
the usnrious contract, but sanctions and sup
ports IL to the extent above mentioned. The con.
stituton, on the cont ary BY the prohibiting words
used in it makes the whole contract illegal, and
thereby rcspacitates the party from N maintaining q
snit upon il for the money be actually loaned, or
any part of it, and moreover, ire ats the taking or
de ma ,dipg more than six per cent az an offence,
and conmard s the Legislature to provide penalties
ard forfeiures sgairst it. IKE provisions Of this
act Of Assembly, an those contained in tie consti
tuition, are consequently inconsistent wit each
other, ana tie former is repealed. In relation to
the act Of 1104 The plaiT tiff claims nothing under II.
But II asmnch as TIE fret section Of that I, like
the constitution, probi bits the taking of than
six per cent, and tie second section contains
an express provision making void the con-
tract wbere more is taksr, the plaintiff con-
Tends tfat tire omission OF the second provision
in the constitution proves that it Was not To-
tended TO make void he tract, but to leave it
as provided for and lesalized By the act Of 1916.
But It is evident that the second section In the act
OF l7O4, libe similar visions ia the Eugsh stat
utee, against usuly, was introduced 20 remove any
douht which nigh. be raised upon the words exact
or take" and 20 show that tie prohibition vas in
tended to apply 10 contracts in which usurious ia.
tsrcst was reserved TO be paid ut future day, as
well as to cases in which i.was tuallv exacted
ard taken, received at the time Of the loan. They
are II ssoduced for greater cautions and TO prevent
nice distirotions upon The words used. This is con
start.y done in acts Of legislation, ard the omission
in tie constitution cf prov,icn Of this description,
confa1rfd ID a previous acs CT Assembly, would
hardly justify The court in inferring that IT was in
sa3ed to authorize an action on contract which
tia constitution Itself prohibited. In cxpounding
ap instr, mnt so solemn and deliberate as q
constitution Containing the fundamental law Of
Ibe State, we arc herdly at liberty to. suppose
that ether those whc framed it, or thos. who
adopted II, liter dsd &c recognize or sanction the
principle that Az action might he m5inteined upon
o contract to DC an oct which the law forbade. On
tbe act of l7O4 ard TIE Constitution tends strongly
To support tie construction we have given tn the
after The prohibition in the act Of Assembly IL to
"exact or tska. and The second section, as we have
chow more clearly that. while the penalties by that
law were confined 10 the actual receiving the orc.
b bitter extended further, and embraced contracts
in which luxurious interest was received, although
peyah!e st future time.
BIT he Constitution docs not use tie probibitory
wor6s Of the 1st sect Oh, but provides that no
higher rate shall be " tsRen or demanded" Now
these words clearly embrace contract by which
sxAr~ -.
ms cortrscts in which it Is taken and received. II
does not can usurieus interest dem. ndsi 10 the
Negotiation previous to the loan, bpt demarded by
TIE coptrsct itself when actually made. Aud
If so demanded II is evidently inclaSed in the con.
stitutiopal prohibition, even although the words
"exac'ed ard taken" should be REGARDED "a con-
fineo t. actusl receipt In an Instrument like this
we are bound to presume thai every word was de-
hbei ste'y weighed and consider before it vas
inserted. And with the act of 1904 before them,
and sbout 20 sstaolish under 4 constitutional a.
ton tie principle contained ia its fret sect'r" it
ought not 70 be supposed that lis words were lsntly
or Co eIessly charged. or the word "demanced' sub
Etituted in place OF the.Tord "eSaet,' without an
object. Ard the nsturaH aId proper object would
he to condtDse in a few words the substantial ro-
sisoDs spread out in the let and I'd sections OF the
oct cf 1704. Ard we Think they hsve used WORDS
sufficient 10 accomplish their purpose. and that the
hetseen the words Of this act If As
semby and tie constitution Of 1851 tends 10 con-
hym The ctTsuuttion we have placid upon the lat
ter, ard which lis language naturally and leg lily
1portG.
Upon tie whole, the Court is OF opinion hat
the dc murrer of the plsinsif to Tho Jes Of usury
csDDof be maintained, and judgment m1st bs ca
t' red Accordingly.
The Maine Law In Canada.
AN ACT TO PREVENT THE TRAFFIC IN AICv.u-.v
AND INTOXICATING LIQUORS.
Ordered TO be eIriI ted as amended by the Seiecs
Committee to whom it was referred.
Whereas, the common traffic il intoxicating
liquors. and tttir use rs beverage is a fruitful
cause Il crime poverty disease ard dem0faz alton;
and whereas 1t is The frat onty of government t,
petect the people .saipst these evils be it there
fnfs nAftef &c that.