Sec 470

Under statutes avoiding usurious contracts, the question is not whether the usury was really received. It is enough, under the statutes, if the promise was exacted as a condition of the loan, though the pay-ment was not actually made.4 The penalty, however, imposed on illegal reception of usury cannot be imposed unless the reception be proved.5 But when the illegal interest is received, the creditor cannot relieve himself by subsequently releasing the excess.6 - The burden is on the party setting up usury to prove it.7 - The taint must be brought home to the lender himself in order to infect the transaction. Thus, usury was held not to attach to a loan of $17,000 on real estate security, from the fact that the agent negotiating the loan charged the borrower five per cent, for his services, and sec 100 for the expenses of a journey from Chicago to Peoria in the specific business.8 'But exactions by an agent may implicate the principal wherever the principal ought to be cognizant of the facts.9

Question one of exaction; not of payment

1 Ibid., citing Peters v. Mortimer, 4 Edw. Ch. 279. That a borrower is not precluded from recovery by his complicity in an illegal transaction, see supra, sec 353; Vandyck v. Hewitt, 1 East, 98; Astley v. Reynolds, 2 Str. 916.

2 Philadelphia, etc. R. R. v. Lewis, 33 Penn. St. 33.

3 Farm, and Mech. Bank v. Dearing, 91 U. S. 29; Brown v. Bank, 72 Penn. St. 209; Lucas v. Bank, 78 Penn. St. 228; Overholt v. Bank, 82 Penn. St. 490.

4 Clark v. Badgley, 3 Halst. 233; Hammond v. Hopping, 13 Wend. 505.

5 Maddock v. Hammett, 7 T. R. 184; Com. v. Frost, 5 Mass. 53; Oyster v. Longnecker, 16 Penn. St. 269.

6 Kirkpatrick v. Houston, 4 W. & S. 11.

7 Hotel Co. v. Wade, 97 U. S. 50; Wilson v. Kirby, 88 111. 566.

8 Ballinger v. Bourland, 87 111. 513; see Van Wyck v. Walters, 16 Hun, N. Y. 209; Marshalltown Bk. v. Bona-witz, 47 Iowa, 322.

9 Cheney v. Eberhardt, 8 Neb. 423. See New England Co. v. Hendrickson, 15 Cent. L. J. 132.

Sec 473

At common law, contracts of trade with a public enemy are void.1 Even a charter-party undertaking to load a cargo in a foreign country is avoided by war being declared by the country of the contract with the country of the port of loading.2 And the courts of one belligerent state will refuse to enforce any business contracts between the citizens of such state and the citizens of the other belligerent state, no matter through what agencies such contracts may have been negotiated. The rule is that there must be absolute suspension of business between the citizens of one belligerent state and the citizens of another belligerent state.3 A partnership, also, is dissolved by war intervening between two countries, of one of which one partner is subject and of the other of which another partner is subject.4 And a bill drawn by an alien enemy on a subject of the state in whose courts the suit is brought, and endorsed by the payee, such payee being a subject residing in the enemy's country, will be held void as an act of trade between subjects of belligerent states.5 A British subject, domiciled in a foreign country at war with Great Britain, cannot, it is held in England, sue in English courts.1 It is otherwise as to a British subject who is a prisoner of war in an enemy's country.2 - It has been held by the supreme court of the United States that an assignment of shares in a company originally formed to supply aid to a belligerent is not of itself necessarily void.3 But bonds issued by the late Confederate government, general or state, as war bonds, do not constitute a lawful consideration for a promissory note, though those bonds were used as currency.4 - A contract, however, which has been executed, will not be overhauled because its consideration, in whole or in part, was aid to a public enemy.5 This distinction holds as to partnerships as well as to other business conditions. "After a partnership contract confessedly against public policy has been carried out, and money contributed by one of the parties has passed into other forms, the results of the contemplated operation completed, a partner in whose hands the profits are cannot refuse to account for and divide them, on the ground of the illegal character of the original contract."6

Trading with public enemy void at common law.

1 Abdy's Kent, 294; Wh. Con. of L. sec 497; Potts v. Bell, 8 T. R. 561; Es-posito v. Bowden, 7 E. & B. 763; Bar-rick v. Buba, 2 C. B. N. S. 563; Schole-field v. Eichelberger, 7 Pet. 586; U. S. v. Grossmayer, 9 Wall. 72; Kershaw v. Kelsey, 100 Mass. 561; Stevenson v. Payne, 109 Mass. 378; Griswold v. Waddington, 15 Johns. 57; S. C, 16 Johns. 438; Hyatt v. James, 2 Bush, 463; Graham v. Merrill, 5 Cold. 622; Perkins v. Rogers, 35 Ind. 124; Shack-lett v. Polk, 51 Miss. 378; Rice v. Shook, 27 Ark. 137; Hennan v. Gilman, 20 La. An. 241; and see supra, sec 94-319.

2 Esposito v. Bowden, 7 E. & B. 763; supra, sec 305, 319.

3 Supra, sec 305, 319; Wheat. Int. Law, 556; Anthon v. Fisher, 2 Doug. 649; Brandon v. Nesbitt, 6 T. R. 23;.

Albrecht v. Sussman, 2 V. & B. 323; Montgomery v. U. S., 15 Wall. 395; Crawford v. The William Penn, 3 Wash. C. C. 484; Philips v. Hatch, 1 Dill. 571. A contract by a citizen to observe neutrality with an enemy may be valid when it is out of the power of his own government to protect him. Miller v. The Resolution, 2 Dall. 10.

4 Pollock, Wald's ed. 282; Matthews v. McStea, 91 U. S. 7; Hubbard v. Matthews, 54 N. Y. 43; Griswold v. Waddington, 15 Johns. 57; S. C, 16 Johns. 438; McStea v. Matthews, 50 N. Y. 166; supra, sec 305, 319.

6 Willison v. Patteson, 7 Taunt. 439. See Williams v. Bank, 2 Woods, 501; Woods v. Wilder, 43 N. Y. 164. See 1 Ch. on Con. 11th Am. ed. 259; supra, sec 305-19.