
    David Dunham, plaintiff in error. 'against Stephen Gould, defendant in error.
    Where a. in-mg money tó m¡¡ lote* aña ñhñngñ* “¿js wUhacmnmK Slün on ex" change, a - mounting to more than what the legal wouMbe^for a .V'no techas whokTr’ansactionis a shift, 01. contrivance l° ,eyade, the statute of usu-r/0\eanP v®js. and as the case comes within the meaning of the statute, no evidence of usage of trade-can be admitted to repel the defence.
    THIS was a writ of error brought to reverse a judgment of the Supreme Court, in an action commenced in that Court by the plaintiff in error, against the defendant in error, as the endorser of a promissory note, dated the 8th of May, 1812, drawn by Matthias and William Ward, payable to the order.of the defendant, for 750 dollars, at 100 after dale, and which was one of twelve notes. (See Dunham v. Dey, 13 Johns. Rep days J promissory A v 41. note.) The cause was tried before Mr. J. Platt, at the New-York sittings in June, 1816, when a verdict was found for the defendant, and a bill of exceptions taken on the part of the iilnintiff piaintm.
    ^ The facts stated in the bill of exceptions, as to the ex-r ’ change of notes between the plaintiff and Ward, on the 8 th of May, 1812, the taking: two and a half per cent, commis- . . ° , sion, amounting to 225 dollars upon that exchange, and the previous threatening letter written by the plaintiff to Ward, are essentially the same, as those which appeared on the trial in the case of Dunham v. Dey. At the time of the exchange, M. Ward was indebted to the plaintiff in the sum ' of 4,200 dollars for borrowed money, which debt had been outstanding for some time, on which no interest or commission was paid, and which was a distinct transaction from the exchange of the notes. This money was repaid on the 8th of May, but it did not appear whether it was before or after the exchange took place.
    After the defendant, on the trial, had gone through with the evidence by which it was sought to establish the fact of usury, the counsel for the plaintiff offered to prove, that it was the understanding, usage and custom of merchants for persons and merchants transacting business as commission merchants, in all cases where responsibility is incurred, by giving their notes by way of exchange or otherwise, to charge two and a half per cent, commission on the amount of the responsibility incurred ; and that it was the like understanding, usage, and ctist°m °f merchants in cases where a merchant advances his own note, in exchange for any other note or notes, to charge two and a half per cent, commission on the face of the note so given in exchange; and that the like usage - exists as to -the endorsing of notes and bills of exchange1, and executing of custom-house bonds. This evidence was objected to on the part of the defendant, and was overruled by the judge, to whose opinion the counsel for the plaintiff excepted.
    The counsel for the defendant then offered in evidence a record of a judgment entered by the plaintiff in the Supreme Court, on the 11 th of May, 1813, against M. Ward, on his bond and warrant of attorney. The admission of the evidence was objected to, but it was allowed by the judge, and the counsel for the plaintiff excepted. The bond was dated the 13th January, 1812, and was conditioned for the payment of 20,000 dollars on demand. It was proved that the bond was given for notes, on which the plaintiff was responsible, to the amount of 14,000 dollars, and for other debts, and that it was to secure a set of debts distinct from the borrowed money, or the notes given on the 8th of May. M. #• W. Ward stopped payment on the 9th of May, the day following the exchange of the notes, on one of the notes for which the bond and warrant were a security.
    The judge charged the jury, that if they believed the ' exchange of the notes between the plaintiff and Ward, to have been for the purpose of raising money at a greater rate of interest than seven per cent, per annum,, which they were warranted to infer from the evidence before them, then the transaction was usurious and xroid, and the plaintiff was not entitled to recover. The jury, having found a verdict for the defendant, the Supreme Court gave judgment in conformity to the verdict, for xvhich they assigned no other reasons, than that this case could not be distinguished from that of Dunham v. Dey, (13 Johns. Rep. 40.)
    
      T. A. Emmet, for the plaintiff.
    Although this case does ¿Hi come .within the .letter of the statute against usury, yel £t is admitted, that if there was a shift or contrivance to evade the law, it falls within its spirit; but a statute of this nature, the infraction of which is attended with so heavy a penalty as the forfeiture of the entire debt, ought to be construed with the utmost strictness, and should never be extended beyond what the clear import of its language absolutely requires: and surely the Court will be little disposed, to give additional energy to a law originating in ages ignorant of the principles of commerce, and regarding trade itself with aversion and contempt—a law which, now since political economy has become a science, the enlightened and philosophical part of mankind unite in pronouncing pernicious and unjust. There is nothing in the circumstances of the present case to excite our commiseration for the borrowers ; but enough to render us indignant at their conduct. They procure the notes of the plaintiff, a man of undoubted credit and solvency, to a large amount, and readily convertible into money: the next day they stop payment. Can it be doubted, that this was a preconcerted plan to get property into their possession, and then fail with their hands full ?
    The case is not within the words of the act, for there was no loan of money, but only of notes: If it be within the intent, if the exchange of notes were a shift or contrivance to evade the statute, it was a fact for the determination of the jury, and evidence of usage was, therefore admissible to show, that the parties did not contemplate an illegal transaction. In Floyer v. Edwards, (Cowp. 112.) a case strongly in point, evidence of the custom of a particular trade was admitted, to show that the transaction was not usurious. The plaintiff and defendant were both dealers in gold and silver, and one sold the other a quantity of gold and silver wire, at a credit of three months; and if not paid at the ex- ■ -pisation of that time, then the defendant should pay the plaintiff a halfpenny per ounce, per month, for so long a time as the money s,hould remain unpaid. This halfpenny a month, however, upon calculation, exceeded the legal i'ate of interest, yet the plaintiff was allowed to recover it. “ Usage, as Lord Mansfield there says, certainly will not jiro tec t usury. But it goes a great way to explain a jralfe" action, and in this case is strong evidence to show that there was no intention to cover the loan of money.” Extra allowances, like the two and a half per cent, in question, are authorized as a compensation for additional risk and trouble, and it is only when they are designed as a cloak for usury, that they are illegal. (Ord. on Usury, 58, 59.) The Supreme Court, in Dunham v. Dey, admitted, that it was legal to take a commission, on a man’s lending his responsibility by endorsing a bill, or executing a custom-house bond for another. Now, where is the difference ? Dunham makes a note, which he delivers to Ward, on his receiving two and a half per cent., which note Ward is to endorse and get discounted : this we are told is usury. But vary the mode a little : Ward makes the note, and Dunham endorses it, to enable Ward to raise money : Dunham may lawfully require and accept a commission. The decision, then, of the Supreme Court amounts to no more than this, that the question of usury, or not, depends upon an immaterial change in the form of doing business. The excess above seven per cent., supposing that the transaction was,.in fact, a loan, was very trifling, and may fairly be regarded as a compensation for incidental trouble and expenses. An addition of one twelfth of the amount of the legal interest could neyer have entered into the contemplation of the lender, as part of his profits, and for the sake of which he was to jeopardize the whole of his debt. u Upon a nice calculation, says Lord Mansfield, it will be found that the practice of the bank in discounting bills, exceeds five per cent.; for they take interest upon the whole sum, for the whole time the bills run, but pay only part of the money, viz. by deducting the interest first; yet this is not usury.” (Cotop. 115. And see further, Jluriol. and another v. Thomas, 2 Term Rep. 52. Hammett and others v. Yea, 1 Bos. and Pull. 144. Caliot v. Walker, 2 JLnslr. 495. Kent v. Phelps, 2 Day, 483.) Where a note is drawn and endorsed for the express purpose of being discounted at a usurious rate of interest, it is void in its original formation. {Munn v. Commission Company, 15 Johns. Rep. 44.) But there was nothing to show that this note was made by Ward, and endorsed by the defendant, with such a view ; on, the contrary, the proof is sufficient, that it was made and endorsed for a different purpose; and it was not, in fact, discounted by the plaintiff, who never advanced any money upon it.
    
      Wells and Riggs, contra.
    This is a case of clear and express usury, within the very words of the statute, which prohibits the taking “ directly or indirectly, for loan of any moneys, wares, merchandize, or other things whatsoever, above the value of seven pounds, for the forbearance of one hundred pounds for one year.” Notes were lent instead of money, and commission was but another name for interest. The application was for a loan ; the plaintiff knew that his notes were to be the instrument of raising money, and that one of the uses to which that money was to be applied was the discharge of a debt due to himself. In Barker v. Vansommer, (1 Bro. Ch. Rep. 149.) instead of money or notes, silks were delivered to the borrower, in order to sell and raise money ; and Lord Thurlow says, “ I am to inquire whether, under the mask of trading, this is not a method of lending money at an extraordinary rate of interest. There is no doubt, that if they had tallied of this as a loan of money, there would have been an end of the case. The question, then, is only whether there is any method of showing the Court that they meant so, short of their treating it as such in plain language. There is not a doubt that, in this case, the transaction was merely for the purpose of raising money, to supply the necessities of this young man. Do they deny knowing the goods were to be sold ? I take it, therefore, as an advancement of goods, instead of money, to supply his necessities.” In Chancery, a creditor is not allowed to make it a condition of a loan, that he shall receive a compensation for his services in procuring the money. That Court is always jealous of collateral demands, and advantages claimed by a creditor, as the condition of a loan of money, as they have a tendency to usury and oppression. (Hine v. Handy, 1 Johns. Ch. Rep. G.) Here the plaintiff, without advancing any money, when by. the terms of the arrangement between him and Ward, he Was never to advance any, claimed and received the collateral advantage of a commission cff two and a half per cent, which wai paid in cash. This is a case not only of usury, but of opPress‘on* The plaintiff had Ward in his power ; he held a judgment against him which he could enforce at any moment; he had already threatened to take steps against him of an unpleasant nature ; and under these circumstances, he could compel him to any terms which he chose to propose. -The judgment on the bond and warrant of attorney was, therefore, properly given in evidence, to show the character of the transaction, which if not within the words of the statute, was yet a palpable shift to evade it. The object of Ward was to raise money, forthwith, upon the plaintiff’s notes; not to keep them until they fell due. There is no case to be met with, in hostility to the present; and here the note was drawn and endorsed, and delivered to the plaintiff, for the express purpose of obtaining a loan from him, who did in fact make a loan upon the security of it, by delivering his note to Wards on which Ward was to raise money as well as he could.
    The evidence, which was offered, of usage, was properly rejected. No usage can be permitted to control a positive rule of law. It has been determined, that it cannot be set up to contravene an express contract; (Yeats v. Pim, Holt's N. P. Rep. 95.) a fortiori, it will not be allowed to countervail the will of the legislature. In the case ex parte Aynsworth, (4 Vesey, 678.) there was an agreement, and that, too, in conformity with the practice of the trade, to allow certain cotton manufacturers a discount of thirty and one quarter per cent, for prompt payment for bleaching their goods. It was held, that this agreement and usage did not authorize the creditor to demand a higher rate of interest than that fixed by statute. And the Lord Chancellor observes, “ that trade of a gold refiner, upon which Floyer v. Edwards arose, has been turned into a cover for usury. The custom of the trade cannot make the debt-more than the money really advanced, with five per cent.™ t In a later case at N. P.. it appeared that Coates dr- Co. accepted a bill at three months, for the defendant, on receiving his note at ninety days, with two and a half per cent. Commission ,* in an action by the endorsee of the note, Lord 
      Ellenborough held, “ that there was no colour there for commission, and that the two and a half per cent, must be considered as usurious interest; and so the defendant had a verdict. (Kant v. Lowen, 1 Campb. 177.) That case is precisely parallel with the one before the Court, both in its facts, and the principle which it involves. Admitting, however, that evidence of usage might have been introduced, to what would it have amounted ? If we may judge by the case of Dunham v. Dey, the usage could not have been substantiated ; for there, of nine witnesses who were examined to the point, five said that there was no such custom.
    
      Emmet, in reply, contended that there was a distinction between a commission, and interest, inasmuch as the former has no relation to the forbearance of the debt, or the length of time which it has to run, but was merely a premium for the risk; that whether here were a shift to evade the statute was an inference of fact for the jury, who ought to have all the testimony before them, in order to determine the question ; and that this Court had no right to draw that inference, even if they were satisfied of the contrivance, but that the case should be sent back to be tried before another jury, on full evidence,
   The Chancellor.

The suit below was upon a promis • sory note, dated the 8th of May, 1812, fbr 750 dollars, payable in 100 days.

This note was one of twelve notes, given by M, $■ W. Ward to the plaintiff, and payable at different periods, the whole of them amounted to 9,000 dollars, and were all given at the same time. Instead of cash, the plaintiff gave in exchange for those notes, four notes of his own, amounting to the same sum of 9,000 dollars, payable at more distant periods. Upon this exchange of notes the plaintiff received a commission of 2 and 1-2 per cent., amounting to 225 dollars, for making the exchange. This commission exceeded the legal rate of interest upon four notes of the plaintiff, supposing them to have been intended as a loan of so much cash. It amounted to a rfite of interest of twelve percent. ; and the question is, whether this commission was not another name for interest taken on a loan of credit, instead of a ]oan 0f cash. The statute of usury applies to any loan at a greater rate of interest for forbearance, than seven per cent. “ of any moneys, wares, merchandize, or other things, whatsoever,” The statute, therefore, applies as well to a loan of notes on usurious interest, as to a loan of cash.

The jury have found the fact submitted to them by the judge at the trial, that the exchange of the notes was for the purpose of raising money at a greater rate of interest than seven per cent, per annum. This fact appears to me to establish, beyond all contradiction, the charge of usury -set up by the defendant. If that was the object of the parties, (and the jury have so found it,) then it was a shift or contrivance to get rid of the statute of usury, and such a 'shift or contrivance no court of justice can tolerate.

But the plaintiff offered to show upon the trial that the charge of a commission of two and a half per cent, upon the exchange of notes was within the understanding, usage, -and custom of merchants, and this evidence was overruled ■ as immaterial and useless. ■

The question on the competency of this evidence ap* ..pears to be the only point in the case.

If the evidence offered was not, in judgment of law, material upon the point of the shift or contrivance to evade the statute, then it was improper, and ought to have been rejected.

This point appears to me as clear and self evident as the -ether.

It was observed by Lord Chancellor Loughborough, in the case Ex parte Aynsworth, (4 Vesey, 678.) that the custom of a trade to take a discount above five per cent., (or the legal rate of interest in England,) cannot authorise a greater demandaban five per cent. It is perfectly idle to talk of a custom of merchants to take a commission above the legal rate of interest-on the-exchange-of notes. The custom of merchants is ndt applicable ‘to such a case. It is not a matter of trade and commerce, within the meaning of the law merchant. And if there were such a local usage in New-York it would be null and void, and could not be set up as a cover -or pretext to trample down the law of the land. The money lenders throughout the country might as well set up a practice of their own, and then plead it in bar of of the statute. The cases (2 Term Rep. 52. 1 Bos. & Pull. 144. 17 Vesey, 332. 1 Maule Selw. 56.) of the allowance of a reasonable sum beyond interest to country bankers, for re-exchange and remittance of the money from a distance, and the allowance of a reasonable sum for incidental expenses or extra trouble in the particular case, and when there was no colour of usury, have no application, for they are all founded on distinct principles. Here was no remittance of money from one place to another, and no extraordinary expenses incurred. The commission of two and a half per cent, was not charged on any such account; here was nothing more than a simple exchange of notes, instead of a loan of cash. The compensation required for the loan was twelve per cent.; it was exacted in the name of a commission, instead of interest, and this was a clear evasion of the statute against usury.

The usage, therefore, that, was offered to be shown would not have been of any avail, if it had been proved, for it would have been an illegal usage, and the evidence in favour of it was properly overruled.

This, then, being a clear case of usury, it is not necessary for me to observe, that it is the duty of the Court to give full effect to the statute made to suppress it. The counsel who argued this cause, on the part of the plaintiff, while he acknowledged this to be our duty, yet, at the same time very ingeniously arraigned the justice and policy of the law. The effect of the attack, (if well founded,) would naturally be to induce us to look with an unfavourable eye upon every plea under the statute of usury, and to lay hold of any pretext or argument, however specious, such, for instance, as that these were commissons only, and not interest, or that this was the usage of the merchants, or that here was only the loan of notes, in order to free ourselves from the bondage of the law. But this, I apprehend, we are not at liberty to do. Asjlong as the statute exists in full force, we are bound in all honest policy to give it a fair and manly support. I will even go further, and say, that I have not been able to perceive the injustice, and impolicy of laws regulating the interest of money; and as-the statute of usury has been assailed in oúr very presence, I hope I may be indulged with a word or two in its defence. If we look back upon history, we shall find that there is scarcely any people, ancient or modern, that have not had usury laws. I believe there is not a nation in Europe at this day without them. In ancient Rome, according to Tacitus, {Ann. lib. 6. ch. 1G.) nsury was discouraged in the early , period of the Republic by the Twelve Tables, which reduced interest to one pey cent. It was afterwards lowered to one half per cent., and finally abolished by the clamours of the people. It was revived in the ages of commerce and luxury, but placed under necessary restrictions. Four or six per cent, was the ordinary interest; eight per cent, was allowed for the convenience of commerce, and 12 per cent, might be taken for maritime hazards, by the laws of Justinian, but the practice of more exorbitant interest.was severely restrained.

/ The Romans, through the greater part of their history, had the deepest abhorrence of usury. They did not derive their objection to usury from the prohibitions in the Mosaic law, nor did they hold it sinful, as the learned Fathers of the early and middle ages of the church have done, forthey.knew nothing of that law. ■''í’he Roman lawgivers and jurists acted from views of public policy. They found, by their own experience, that unlimited usury led to unlimited oppression, and that the extortion of the creditor, and the resistance of the debtor, were constantly agitating and disturbing the public peace. </

But it is not only the civilized and commercial nations of modern Europe, and the sage lawgivers of ancient Rome, that have regulated the interest of money. It will be deemed a little singular, that the same voice against usury should have been raised in the laws of China, in the Hindu Institutes of Menu, in the Koran of Mahomet, and perhaps,, we may say, in the laws of all nations that we know of, whether Greek or Barbarian.

There is one exception, however, that I ought to notice, and which is supposed to be found in the laws of Solon, given to -the Athenian Republic. Tins celebrated-lawgiver is said to have allowed parties to regulate the rate .of interest by their own contracts. When Solon was called to make laws for Athens, the state was in complete anarchy; and when he was asked, if he had provided the best of laws for the Athenians, he replied, that he had provided the best that their prejudices would admit of. One of his first steps was, to cancel all existing debts, though, according to Plutarch, (Life of Solon,) it is not certain that he proceeded to this violent measure, for many said that he did not cancel debts, but only moderated the interest. And the result of his law allowing interest to regulate itself, I shall give in the words of De Pauw, (Recherches Philosophique sur les Grecs, 5 sect. § 2.) He says, that usage fixed the rate of interest at ,12 per cént. in certain cases, and at 18 per cent, in others, and that “ the Athenians regarded all those who did not conform to this usage as usurers, that is,' as the most vile and the most ignominious of mankind. The public voice which cried against them, and the profound contempt to which they were condemned, formed a punishment so great, that the lawgiver did not deem it necessary to add any other punishment,’’ The usage in this case formed the law.

Now, according to this view of the fact, interest was limited at Athens, as, effectually and as precisely, by this customary law, as it would have been by any penal statute, and the Athenian commonwealth is not to be cited as a real exception to the general practice of mankind.

The principal error which has prevailed oh this subject, is the condemnation of any kind of interest, however small. A host of great names from Aristotle among the Greeks, to the modern civilians, such as Domat and Pothier might be cited, who rank all interest of money under the name of Usury, and condemn it. But the sense of mutual benefit has, on this point, resisted, with equal firmness, the decrees of the church, and the speculations of philosophers, and a regulated and reasonable interest has had the sanction, not only of our own municipal law, but of the most cultivated and enlightened human reason. Grotius, (lib. 2. c. 12. § 20. ■-22.) after discussing the question, whether usury be permitted by the natural and divine law, .concludes, that a reasonable interest may be permitted; and he cites Holland as an instance, in which eight per cent, is the ordinary, and twelve Per centi R>e mercantile interest. But he insists, that interest cannot be rightfully permitted beyond a reasonable limit: Non mordaces sed modice, according to Hemeccius, in his commentary on this passage, and who admits that itr belongs to the discretion of the lawgiver to regulate the quantum of interest. He says further, that in Germany, by imperial ordinances in 1600, and 1654, interest at the rate of five per cent, was allowed, though the canons of the church every where condemned it, and higher interest is now permitted. (Heinec. Elem. Jur. Germ. Lib. 2. tit. 13. § 378. Elem, Jur. civ. secund. Ord. Pand. part 4. lib. 22. tit. l.§ 104. Prolec in Grot, ubi sup.) Puffendorf (Le Droit de la nat. et des gens. lib. 5. ch. 7.) examines the subject at great length, and with great learning, and concludes with his approbation of those civil laws which allow, and regulate interest, but do not permit individuals to take just what their cupidity would demand. Lord Bacon, in one of his moral essays, (No. 41.) has also discussed the question, and examined the arguments for, and against interest, with his usual sagacity, and he concludes, that two things are to be reconciled: “ The one,” to use his own words, “ that the tooth pf usury be grinded, that it bite not too much, the other, that there be left open a means to invite moneyed men to lend for the continuing and quickening of trade;” and he recommends a general rate of interest, say 5 per cent, for ordinary cases, and a higher rate of interest in matters of trade.

Can we suppose, that a principle of moral restraint' of such uniform, and universal adoption, has no good sense in it ? Is it altogether the result of monkish prejudice ? Ought we not rather to conclude, that the provision is adapted to the necessities and the wants of our species, and grows out of the natural infirmity of man, and the temptation to abuse inherent in pecuniary loans. The question of interest arises constantly, and intrudes itself into almost every transaction. It stimulates the cupidity for gain, and sensibly affects the heart, and gradually presses upon the relation of debtor and creditor. Civil government is continually placing guards over the weaknesses, and checks upon the passions of men, and many cases might be mentioned, in which there is, equally with usury laws, an interference of the lawgiver, with the natural liberty of mankind to deal as they please with each other. But no person doubts of the necessity, and salutary efficacy of such checks. On the same principie, that unlimited usury may be permitted, the law ought to allow the creditor to insert in his bond a provision for compound interest, whenever the stipulated interest becomes due, and is not paid. Nay, parties ought to be allowed to agree, that if the condition of a bond be not performed at the day, the penalty shall not only be nominally forfeited, but-literally exacted. 1 should apprehend, that if these things-were to be permitted, there would not be strength enough in the government to support the administration of justice. It is an idle dream to suppose that we are wiser and better than the rest of mankind. Such doctrine may be taught by those who find it convenient to flatter popular prejudice; but the records of our courts are daily teaching us a lesson of more humility. And, I apprehend, it would be perilous in the extreme, to throw aside all the existing checks upon usurious extortion, and abolish, or traduce a law which is founded on the accumulated experience of every age.

The Roman commonwealth, if we may place reliance-upon its earlier history, tried every experiment on this interesting subject. The Romans had no law regulating the interest of money, and left the parties to their own contracts, until the law of the twelve tables, according to Tacitus, or the law of the tribunes, in the year of Rome 398, according to Montesquieu. The consequence was, unceasing quarrels between the patricians and plebeians, and popular secessions to the mons sacer, in which one party pleaded the obligation, and the other the severity of their contracts. Interest was then reduced to the smallest allowance, and finally abolished, which led to a still more frightful usury, until at last, the emperors were obliged to allow, but regulate, and limit the charge of usury. So true it is, according to the President Montesquieu (Esprit des Loix, liv. 22. ch. 21,22.) who has discussed this subject at large, that extreme laws produce extreme evil, les loix extremes dans le bien font naitre le mal extreme. The Romans, at one time, had no laws against usury, and, at another time, they allowed no interest, and these are the extreme laws which this celebrated civilian condemns.

Lord Redesdale said, in 1803, (1 Sch. & Lef. 195. 312.) many years after Jeremy Bentham, to whom the learned counsel referred for an able defence of usury, had first published his letters, that the statute of usury was founded on great principles of public policy. It was intended, he said, to protect distressed men, by facilitating'the means of procuring money on reasonable terms, and by re-. fusing to men who sit idle, as high a rate of interest without hazard, as those can procure who employ money in the hazardous undertakings of trade and manufacture.

I trust that theoretic reformers have not yet attained, on this subject, any decided victory over public opinion. Mr. Bentham contends, that we ought hot so much as to wish “ to see the spirit of projects in any degree repressed.” It may be so; but I hope I may be permitted to wish that the first experiments of his projects may not be made within these walls. The statute of usury is constantly interposing its warning voice between the creditor and the debtor, even in their most secret and dangerous negotiations, and teaches a lesson of moderation to the one, and offers its protecting arm to the other. I am not willing to withdraw such a sentinel. I have been called to witness, in the course of my official life, too many victims to the weakness and to the inflamed passions of men. All sudden and extreme reforms are unwise. We ought not to stretch or to amputate, in order to make our institutions fit exactly to any theory. It is better to follow the course and order of Providence, and suffer our general system of laws, like our habits, to accommodate itself slowly to our necessities, and to vary only with the gradual and almost imperceptible progress of time and experience.

I am accordingly of opinion, that the judgment of the Supreme Court ought to be affirmed.

This being the unanimous opinion of the Court, (exceptMr, Bates, Senator,) it. was therefore; Ordered and adjudged, that the judgment of thy Supreme Court be affirmed, arid that the plaintiff in error pay to the defendant in error, his costs and charges, in and about his defence in this Court; and it is further ordered, that the proceedings, and judgment of this Court be remitted, &c.

Judgment of affirmance.  