« AnteriorContinuar »
ment and conduct, and these must prevail unques- are in favor of a patent law, but we think that a tioned in the course of procedure until they shall patent should carry some prima facie protection on be altered, not summarily as proposed, but in the its face, and that there should be radical reforms in absence of statutory regulations, in a way consist the patent office and in the patent courts. ent with justice to all parties directly interested, the importance of the matter in question, and the dignity and propriety of judicial action. It is al
NOTES OF CASES. ways of serious moment to the public, as well as individual litigants concerned, to bring in question IN
N Davis v. Shepstone, Priv. Co., 55 L. T. Rep. (N. the official conduct of judges. Their errors should S.) 1, it was held that statements made to a be corrected promptly and certainly, especially such reporter in the employment of the proprietor of a as savor of nonfeasance, misfeasance or malfeas- newspaper, for the purposes of the newspaper, are ance, but this should be done with fairness and not privileged. The lord chancellor said: “The due caution. This is due alike to the judge as an respondent was in December, 1882, appointed resiindividual, his office and the public.” The other dent commissioner to Zululand, and proceeded in passage is to be found in the case of an indictment the discharge of his duties to the Zulu reserve teragainst Jerry Jacobs for forcible entry. Jerry is ritory. In the month of March, 1883, the appelentitled to commiseration, for he not only broke lants published in an issue of their newspaper serihis own leg in his attack, and was convicted, but ous allegations with reference to the conduct of the court used the following strong language: the respondent whilst in the execution of his office “Such was the terrible order of his coming that all in the reserve territory. They stated that he had the inmates of the house fled panic-stricken there not only himself violently assaulted a Zulu chief, from, and betook themselves to places of conceal- but had set on his native policemen to assault ment and safety. The door had been barred, but others. Upon the assumption that these statements that formed no impediment to the furious onslaught were true they commented upon his conduct in of the redoubtable kuight-errant. He kicked down terms of great severity, observing: “We have althe door, entered the house and fell over some- ways regarded Mr. Shepstone as a most unfit man thing, by which his leg was unfortunately broken to send to Zululand, if for no other reason than iustead of his neck, and yet it is seriously contended this, that the Zulus entertain toward him neither before us that he is guilty of no offense."
respect nor confidence. To these disqualifications he has now, if our information is correct, added
another which is far more damnatory. Such an act That was a rash moment when we opened our as he has now been guilty of cannot be passed over columns to an attack upon the patent laws. We if any kind of friendly relations are to be mainhave given place to the first of the communications tained between the colony and Zululand. There which it called out, but their name promises to be are difficulties enough in that direction without legion, and we confidently expect to hear from need for them to be increased by the headstrong, every patent lawyer in the United States on the and almost insane imprudence and want of selfsubject. We know now how Samson felt when he respect of the official who unworthily represents the pulled that temple down on himself, but we do not government of the queen.' In the same issue, unpropose to submit to being crushed by our own col- der the heading ‘Zululand,' there appeared a state
We shall "draw the line" at once, and we ment that four messengers had come from Natal to announce, that the summer being ended, we can- Zululand, from whom details had been obtained of not give up the JOURNAL to long communications the respondent's treatment of certain chiefs of the on this topic. For example, we have now on our reserve territory who had visited Cetewayo, and table a communication of fifteen foolscap pages, what purported to be the account derived from which might better have been compressed into five, these messengers of the assault and abusive lanwell written, but too, too long. Writers for legal guage of which the respondent had been guilty, journals should profit by the idea of war which
was given in detail. On the 16th of May, 1883, McClellan professed but did not practice -- "short, the appellants published a further article relating sharp and decisive." In the communication to to the respondent, which commenced as follows: which we refer the writer says among other things: Some time ago we stated in these columns that “The writer of the article in question puts great Mr. John Shepstone whilst in Zululand had comstress upon the fact that when a man obtains a pat- mitted a most unprovoked and altogether incoment he must go to the courts with it before he prehensible assault upon certain Zulu chiefs. At knows whether it is good. Does not a man who | the time the statement was made a good deal of has a deed of a farm have to go to the courts before doubt was thrown upon the truth of the story. he knows his title is good?” But if he is in posses. We are now in a position to make public full desion he is in the enjoyment of the property, and he tails of the affair, which the closest investigation “ lets the other man do the walking.” In the case
will prove to be correct, A representative of this of a patent the patentee absolutely gets nothing journal, learning that a deputation had come to until the end of the fight, but is the prey of every Natal to complain of the attack, met five of the infringer. We may just as well say now that we number, and in the presence of the competent in
terpreters took down the stories of each man.' The maintenance seems first to find expression in our article then gave at length the statement so taken law in the case of Rothevell v. Pewer, 9 Hen. 6, p. down, which disclosed, if true, the grossest mis. 64, in the course of which Martin, J., of the Comconduct on the part of the respondent. It was in mon Pleas, said: 'I can give gold or silver to a respect of these publications of the appellants that man that is poor to maintain his plea if he himself the action was brought by the respondent. * cannot through his poverty; this is not maintenThere is no doubt that the public acts of a public ance against the law,' and in the case of Power or man may lawfully be made the subject of fair com- Pomeroy v. The Abbot of Buckfast, 21 Hen. 6, p. 15, ment or criticism, not only by the press, but by all Paston, a judge of the Common Pleas, said: 'Supmembers of the public. But the distinction cannot pose that I of my charity give a sum of money to a be too clearly borne in mind between comment or poor man who has a suit, in order to aid him in the criticism and allegations of fact, such as that dis- suit, it is no maintenance; no more is it in the case graceful acts have been committed or discreditable at the bar.' Again, in 22 Hen. 6, p. 35, Prisot, language used. It is one thing to comment upon Serjeant, who appears to have been counsel in the or criticise, even with severity, the acknowledged case, observed: "That in writ of maintenance it is or proved acts of a public man, and quite another a good plea that he who is supposed to have been to assert that he has been guilty of particular acts maintained is a poor man, and had no means to deof misconduct. In the present case the appellants, fend himself in the suit which the plaintiff had in the passages which were complained of as libel- against him, and that the said now defendant of lous, charged the respondent, as now appears with his alms gave him 20s., which is the same mainout foundation, with having been guilty of specific tenance alleged.” These authorities found, as acts of misconduct, and then proceeded, on the as- might be expected, their place in the Abridgsumption that the charges were true, to comment ments of Brooke and Rolle (Brooke Abr. Mainupon his proceedings in language in the highest tenance, 14; Rolle Abr. Maintenance, Q. 1). The degree offensive and injurious; not only so, but result of them appears in Hawkins' Pleas of the they themselves vouched for the statements by as- Crown (I, 460, 8th ed.), in the statement ‘it seems serting, that though some doubt had been thrown to be agreed that any one may lawfully give money upon the truth of the story, the closest investiga- to a poor man to enable him to carry on his suit,' tion would prove it to be correct. In their lord- and in Blackstone's Commentaries in the words · A ships' opinion there is no warrant for the doctrine man may however maintain the suit of his near that defamatory matter thus published is regarded kinsman, tenant and poor neighbor, out of charity by the law as the subject of any privilege. It was and compassion with impunity.' Vol. iv, 134. insisted by the counsel for the appellants that the Similar statements are to be found in Viner's and publications were privileged, as being a fair and Bacon's Abridgements (Viner Abr. Maintenance, Q. accurate report of the statements made by certain 1; Bacon Abr. Maintenance, B 4). It is no doubt messengers from King Cetewayo upon a subject of remarkable that no case can be found in our law in public importance. It has, indeed, been held that which the defense of charity has been raised to a fair and accurate reports of proceedings in Parlia- proceeding for maintenance. But the proposition ment and in courts of justice are privileged, even that charity is a good defense was asserted by the though they contain defamatory matter affecting judges as well known and understood law more the character of individuals. But in the case of than four hundred years ago, when the law of Purcell v. Sowoler, 2 C. P. Div. 215; 36 L. T. Rep. maintenance was more familiar than it is now,
and (N. S.) 416, the Court of Appeal expressly refused it has been adopted and accepted by the compilers to extend the privilege even to the report of a of the digests to which we are accustomed to look meeting of poor law guardians, at which accusa- for guidance, and upon this proposition no judge, tions of misconduct were made against their medi- counsel or writer has, so far as we can learn, thrown cal officer. And in their lordship's opinion it is any
doubt. We hold that the proposition is part clear that it cannot be extended to a report of state of the law in England. But if the law be correctly ments made to the Bishop of Natal, and by him laid down in the passages we have cited it appears transmitted to the appellants, or to statements to us to follow that the limitation put on the meanmade to the reporter in the employ of the appel- ing of the word charity by Wills, J., cannot be lants, who for the purposes of the newspaper maintained. He requires that charity shall be sought an interview with messengers on their way thoughtful of its consequences, shall be regardful to lay a complaint before the governor.”
of the interest of the supposed oppressor as well as that of the supposed victim, and shall act only after
due inquiry and upon reasonable and probable In Harris v. Briscoe, Ct. of App., 55 L. T. Rep. If we were making new law, and not de(N. S.) 14, the questions were: “First, is charity a claring old law, it would in our opinion be well defense to an action for maintenance? Second, is worthy of consideration whether such a limitation thoughtless and inconsiderate kindness toward a of the doctrine that charity is an excuse for mainparticular person charity within the meaning of tenance would not be wise and good. But is it the defense, if such defense there be? Fry, J., not an anachronism to suppose any such view of said: “The doctrine that charity is an excuse for charity to have been present to the minds of the
judges of the reign of Henry VI ? A view which part of the land in terms protected. The proposi-
decided by Court of in , but as yet unreported, one of the causes of action was
a promissory note, which stipulated for interest at the In Cullers v. James, Texas Supreme Court, June made iu Penisylvania, where the payee resided ; and
rate of twelve per cent per annum. The wote was 25, 1886, it was held that an abandoned wife may
as no other place was specified, Peunsylvania was conclaim a dwelling-house, even though built on leased ceded to be the place of payment. The contract grounds and a mere chattel, as an exempt home- therefore was a Pennsylvania contract. It was made stead, The court said: “It is contended that the there, and that was the place of performance. homestead, under the Constitution, cannot embrace
The legal rate of interest in Pennsylvania at the
time of the making of the note was six per cent, the personal property. The exemption is in terms of
same as in Delaware. But the legal consequences in lots or acres of land; but the object was to secure the two States of a stipulation for excessive interest to the family a home. 'House' is necessarily em- were very different. braced in the word “homestead.' Franklin v. Coffee,
In Pennsylvania, as was proved by the testimony of 18 Tex. 417. If the head of a family owns a house, members of the legal profession from ihat State, usury and no interest or estate in the land on which it principal, together with legal interest, could be col
did not avoid a note on which it was charged. The stands, the house is a chattel. If he occupies it lected, the note being void only as to the usurious ex with his family it is their home. He may be com
In Delaware usurious contracts were, and are pelled to move it from one lot to another as fast as now unenforceable. legal process can oust him, still
, though ambulatory, be collected in Delaware. It was, the court declared,
The court held that the note in question could not unsatisfactory, and in all its appointments mean; unquestionably usurious, bearing interest at a rate though it advertises the thriftless poverty of its forbidden both by the laws of Pennsylvania and those proprietor, and is a caricature of the princely possi- of Delaware. It had been shown that according to bilities of the exemption laws, it is the home of a the laws of Pennsylvania, with reference to which the family, and is embraced in the spirit and purpose,
note was made, the principal of a usurious note could
be collected, together with legal interest; and it was if not the letter of the Constitution. The same
sought on the ground of comity to enforce that law in principles, under our present Constitution, must be the Delaware courts. But,the court continued,comity applied to the place of business of the head of the did not go to that extent. Whilst every State should family. To give effect to the object of the law the show due regard for the laws of other States, it could dwelling-house and the gin-house must be held to not concede so much to them as to permit the enhave been improperly seized under the plaintiff's forcement of contracts which were immoral or against
its public policy. The courts of Delaware had dewrit. But we do not feel authorized to extend the clared again and again that contracts infected with scope of the law's purpose any further than this. the taint of usury were void and could not be enThe mill and gin, and pertinent apparatus and ma- forced, and in the case under consideration the court chinery, may become part of the homestead in town could not extend the rules of comity so as to permit or country, not because they are in themselves ex
such an enforcement. In support of this view the
court cited 2 Kent Com. 458; and Story Confl. Laws, $ empt, but because they are parts of that which is 244, etc., in both of which it is laid down that no State exempt. If they are annexed to and form part of is bound to enforce a contract which is immoral or a tract of land, in which a family has a homestead against its public policy. The note was accordingly right, their location and use will aid in determin- thrown out of the case. ing what portion of the tract is under protection
The first question to be considered in connection
with the case of Derrringer v. Derringer is that of the from seizure, as in the case of Railroad Co. v. Win- nature and meaving of what is called the comity of ter, 44 Tex. 597. But to be exempt as part of the nations, in conformity with which the court consid. homestead they must be part of the exempt realty.ered their decision to be in that case. They form no part of the home proper, which it
It is generally said that comity is the ground upon
which, in construing a foreign contract, the courts of was the overruling purpose of the Constitution to
the place where the contract is sought to be enforced secure to the family, and can be claimed as exempt adopt as their guide the law with reference to which only when embraced in the words of the law as the contract was made. In one sense, this is true.
Every sovereign State has supreme authority over its not consider the contract in this case as liable to any
A much stronger case than that of excessive interBut all civilized States are subject to the rules of est is a contract for the sale of lottery tickets. And international law. In England and the United States yet it has been held in Massachusetts, where the sale it is recognized as a part of the common law. And it of lottery tickets is prohibited, that a contract for the is a rule of private international law,which is a branch purchase of lottery tickets will be supported, although of the law of nations, that the validity of juridical acts, the vender belonged to a State where the sale is illeperformed or to be performed in a foreign State, is to gal. JcIntyre v. Parks, 3 Met. 207. An analogous debe determined by the law of that State. “When we cision has been made in New York, where the sale of have determined what that law is, we find what the lottery tickets is also prohibited. An action was common law is as to the particular issue.” Whart. brought on a bond conditioned for the faithful perConfl. Laws, & la.
formance of certain duties enjoined by a law of KenBy comity therefore we are not to understand tucky, which authorized the obligees to sell lottery "simply politeness, meted out either at the caprice of tickets for the benefit of a college in that State. The the judge, or granted in consideration of similar con- bond was held valid, it being so at the place where the cessions by the State whose law is for the particular condition was to be performed. It was moreover held case accepted.” Id. Or to quote the language of to be immaterial whether 'the bond was executed in Story: “It is not the comity of the courts, but the New York, or in Kentucky. Kentucky v. Bassford, 6 comity of the nation, which is to be administered, and Hill, 526; Story Confi, Laws, & 528a. ascertained in the same way, and guided by tbe same This case is far stronger, as will appear further on, reasoning, by which all other principles of the munic- than any analogous case of excessive interest can be ipal law are ascertained and guided." Story Confl. with reference to the laws of Delaware. Not only Laws, $ 38.
was the sale of lottery tickets prohibited in New It is a general rule of private international law, in York, but it was also an indictable offense, punishable relation to contracts, that the lex loci contractus gov- with fine and imprisonment; and the statute of New erns their validity and construction. This principle | York respecting lotteries did not make any exception was forcibly stated by Lord Stowell in Dalrymple v. in favor of lotteries authorized by the laws of other Dalrymple, 2 Hagg. Consist. 59. The question in con- States. People v. Sturdevant, 23 Wend, 418. troversy was the validity of a Scotch marriage; and Having discussed generally the rules of comity, it is his Jordship employed in reference to that question proper, before proceeding to consider their applicathe following language: “Being entertained in an tion to usurious contracts, to ascertain what the law English court, it (the cause) must be determined ac- of Delaware is on the subject of usury. For it may be cording to the principles of the English law applicable | admitted, that if any thing can be found either in the to such a case. But the only principle applicable to enactments of the legislature, or in the common law such a case, by the law of England, is that the valid- of the State, that forbids the enforcement by the ity of the marriage rights must be tried by reference courts of usurious contracts, such contracts cannot be to the law of the country where, if they exist at all, enforced there. When usury laws are declared by a they had their origin. Having furnished this princi- local government to be of a positive moral nature, abple, the law of England withdraws altogether, and solutely binding in the country on which they are imleaves the legal question to the exclusive judgment of poseš, they may be enforced by the judges of such the law of Scotland.”
country on all litigauts coming before them. Whart. To the rule that the lex loci contractus governs the Conf. Laws, $ 511. But it is to be remembered, that validity and construction of foreign contracts there to carry this principle to its logical conclusion, conare certain exceptions. It is generally conceded that tracts not usurious by the law of the country where Do State is bound to enforce a contract which conflicts suit is brought on them may be enforced there, with its public policy, or which is contrary to good although they were tainted with usury in the country morals; and these are questions determinable by the in which they were made. lex fori. Whart. Coufl. Laws, SS 490, 494. Such are The statute of Delaware relating to usury ($ 1, ch. 43, contracts involving foreign distinctions of status or Rey. Code, p. 535), provides as follows: caste, conflicting with the distinctive polioy of the “The legal rate of iuterest is six per centum per ancountry where it is sought to enforce them; contracts num; and if any person shall directly, or indirectly, for future illicit cohabitation; for the printing or cir- take for the loan, or use of money, more than six dol. culation of obscene publications; to promote the come lars for the loan, or use, of one hundred dollars, for mission of crimes; and to corrupt or evade the due one year, and in that proportion, he shall forfeit and administration of justice.
pay, to any one who will suo for the same, a sum The principles of international comity, as they have equal to the money lent, one-half for the use of the been above evuuciated, have been recognized and en- person so suing, and the other half for the use of the forced by the Delaware courts.
State." In the cases of Pollard v. Shisler, 1 Harr. 349; and The cases decided by the Delaware courts on this Fisher v. Stayton, 3 id. 271, the court recognized the statute are seven in number, and are entitled as folvalidity of assignments in Pennsylvania giving pre- lows: Gardner v. Daniel, 2 Hous. 300; Cook v. Pierce, ferences. although as was expressly said in the opin- id. 499; Newport Nat. Bank v. Tweed, 4 id. 225; Colley ions, such assignments in Delaware are void. In the v. Erb, id. 315; Cleaden v. Webb, id. 473; Nailor v. Danformer case the court said: “This contract (of assign- | iel, 5 id. 455; Plunkett v. Dillon, 4 Del. Chan. 198. ment) was made in Pennsylvania, and between citizens The general purport of these cases is that contracts of that State, who entered into it expecting it to entered into and to be performed in Delaware, and stand or fall according to the laws there. Generally usurious by the law of that State, cannot be enforced speaking, the validity of a contract is to be decided by there. They contain nothing in support of Derringthe laws of the place where it was made; but to this er's case, either expressly or inferentially. On the rule there are said to be exceptions. No people are contrary, it was said in the case of Colley v. Erb that bound to enforce in their courts of justice any con- the taking of a higher rate of interest than is allowed tract which is injurious to their public rights, their by the statute must be intentional, in order to conmorals, their policy, or violates a public law. We do stitute usury and incur its consequences. And surely
it cannot be maintained that a contract made with re- in Connecticut and New York, it is correct in further ference to the laws of Pennsylvania, although it may stating the main question in the case to be, whether violate them, is an intentional violation of the laws of the laws of the former or the latter State are to con: Delaware.
trol as to the defense of usury. In the one case the The general rule in reference to interest, both in plaintiff would lose only a sum equal to the amount of England and the United States, is that the rate of it is interest taken or reserved. In the other he would to be determined by the law of the place where the lose the whole amount of the note.'' contract is to be performed. See cases collected in It has been held in Michigan that where a usurious Whart. Conf. Laws, $ 504. This rule has been followed contract is made and to be performed in another in Delaware.
State, but the law of that State do not avoid it on In the case of Bailey v. Seal, 1 Harr. 237, 267, seven that ground, as the law of Michigan does usurious per cent was allowed on a New York contract, that contracts to be performed there, the contract may be being the legal rate there. And in the case of Purks enforced by the Michigan courts. Iron Co. v. Burkam. v. Evans, 5 Houst. 576, ten per cent was allowed on a 10 Mich. 283. Missouri note, under similar circumstances.
The last case I shall cite on this point is that of BowThese two rulings are unqnalified declarations of the man v. Miller, decided by the Court of Appeals of Virfact that the law of Delaware in relation to interest, ginia in 1874, and reported in 25 Gratt. 331. The issue far from being of a positive moral nature, binding on in this case was the validity of a promissory note all litigants who come before the Delaware courts, is which was given in general settlement of certain usu. in entire aocord with the law as it is generally held in rious transactions which took place in Maryland. The England and this country. They declare that the court held that the contract was to be construed with rate of interest charged in a foreign contract is, from reference to the laws of Maryland, where the usurious a moral point of view, a matter of unconcern to the transactions occurred; and that the note could be colDelaware courts.
lected in Virginia, although in that State usurious But suppose the rate of interest exceeds that al- contracts are void, it appearing that under the Marylowed by the low leei contractus. The reply is that this land law usurious loans are not void, but are valid to is no offense against the laws of another country the extent of the principal, and six per cent interest. where the contract is sought to be enforced. As an In the course of the opinion the court said: “It is offense against the foreign law-i. c., the lex loci contrac- not an offense under the Maryland law to take usury, tus—it is to be considered solely with a view to its ef- as it is here. The contract is not thereby vacated as fect on the validity of the contract. This principle here. The taint does not affect the instrument as has been forcibly expressed by Wells, J., in the case here. On the contrary, the security is valid; the debt of Akers v. Demond, 103 Mass. 323, in the following perfectly secure to the extent of principal and interwords: “The general principle is that the law of the est; though the debtor, under the proper pleading, place of performance is the law of the contract. But may be relieved of the excess. Now coucede it is a viothe question of its validity, as affected by the legality lation of that law to demand more than six per cent, of the consideratiou, or of the transaction upon which is it possible that when a suit is brought here upon a it is founded, and in which it took its inception as a Maryland contract executed upon the faith of their contract, must be determined by the law of the State
statutes, we are to apply our laws, and declare the where the contract was had. No other law can apply whole contract null and void, in the very teeth of the to it. Usury, in a loan effected elsewhere, is no of. Maryland statutes, which affirm the validity of the fense against the laws of Massachusetts. But when a contract to the extent of principal and lawful interusurious or other illegal consideration is declared by est? Such a doctrine is in violation, not merely of the the law of any State to be incapable of sustaining any principles of the comity of States, but of the plainest valid contracts and all contracts arising therefrom are principles of equity and justice." declared void, such contracts are not only void in that These cases in Massachusetts, New York, Michigan, State, but void in every State and everywhere. They and Virginia, amply illustrate and declare the law in never acquire a legal existence."
reference to interest on foreign contracts, not only as In the case of Jewell v. Wright, 30 N. Y. 239, there it is laid down in the United States, but as it is apwas a contract made in Connecticut, and to be per- plied im post commercial States. See Bar Int. Law, formed in New York, which stipulated for interest at 207, 286, 289. For once admitting that by the lex fori a higher rate than was allowed by the law of either the rate of interest on a foreign contract is to be deState. The principal question discussed by the court termined by the lex loci actus, it follows as a legal conwas what law governed the construction of the con- clusion that the effect of usury on the contract is also tract, and the conclusion baving been reached that the to be determined by that law. The foreign law either validity of the contract must be determined by the governs, or does not govern. But as we have shown, law of the place of performance, the note was held it generally goverus, unless the contract is immoral or void, that being the penalty of usury in New York. against public policy. Now this question as to the This case was referred to and discussed in Dickinson
morality or the policy of the contract must be deterv. Edwards, 77 N. Y. 578; and in the opinion of the mined by the lex fori. To deny this would be to conte court in the latter case, delivered by Judge Folger, we cede to the foreign law extraterritorial force. For find the following comments: “One criticism upon questions of morality and of policy are domestio ques. it (Jewell v. Wright) is, that as the note there was ob- tions. noxious to the usury laws of Connecticut, as well as So far as the laws of Delaware are concerned, seven of New York, there was no need of the reasoning of per cent interest on a New York contract, which was the opinion, resting the judgment upon the rule that allowed in Bailey v. Seal, supra, that being the legal the law of the place of performance must govern); and rate in New York, was as much an offense against that hence the opinion rendered was obiter. This those laws, as a stipulation for ten per cent would criticism is not well founded. The usury law of Con- have been, or as a stipulation for twelve per cent necticut is not as fatal as that of this State. By the would have been in Parks v. Evans, supra, on the Mislaw of that State, the contract is not utterly void, but souri contract on which ten per cent was charged and void only as to the whole interest reserved or taken. allowed. The fact that the interest exceeds the rate Fisher v. Bidwell, 27 Conn. 363. So that though the prescribed by the foreign law is a matter which does opinion of Jewell v. Wright starts with saying that the not concern the courts of the place where the enforcenote was negotiated at a rate of interest illegal, both ment is sought, except in so far as the usury may af