As the lender may take a compensation for his trouble and services, so he may for the risk that he runs. By this, however, is not meant the personal risk of the debtor's ability to pay; for nothing of this kind is any justification whatever of more than legal interest But where, by the nature of the terms of the contract, the repayment of money loaned is made to depend upon the happening of contingent events, there the lender may take, beside his interest for the sum loaned, enough more to insure him against the casualty which might destroy his claim; that is, so much more as this risk of loss is worth. Nor is there any definite standard for this, like that which the statutes give for legal interest; and any contract for loan of money upon extra interest, if the principal sum were actually at risk, would probably be sanctioned by the courts, unless it amounted, by its excess or its circumstances, to fraud and oppression. Upon this foundation rests a large class of mercantile contracts, of universal use and great importance, known by the names of loans on bottomry and respondentia. By these contracts, money is loaned, either on a pledge of the ship, or on that of the goods on board a ship, with condition, that if the ship or goods be lost, nothing of the principal or interest shall be repaid; but, if they arrive safe, the principal shall be repaid with more than lawful interest (i) And aside. Lord Ellenborough, C. J., said, "that to constitute usury there must be either a direct loan and a taking of more than legal interest for the forbearance of repayment, or there must be some device contrived for the purpose of concealing or evading the appearance of a loan and forbearance, when in truth it was such. But here was no loan or forbearance, only a mere anticipation of the payment of a debt, by the party, before the time when by law he could be called upon for it That the defendant had been guilty of very improper practice, but not of usury.

(i) Soome v. Gleen, Sid. 27, was debt, upon an obligation, the condition of which was, that if a certain ship should go to Surat, in the East Indies, and return safe to London, or if the owner or his goods should return safe, then the defendant should pay the plaintiff the principal money loaned, ana £40 for every £100; but if the ship, etc, should perish by unavoidable casualty of sea, fire, or enemies, the plaintiff should have nothing. The question whether the contract was usurious, was argued, by Earle for defendant, who agreed that if the condition had been solely that if the ship should return safe, this would have been a good bottomry contract, and an apparent a bottomry bond may be made on time, as * well as on a specific voyage. (j) This is often - or certainly may be -used as a means of lending money on usurious interest If, for example, the loan is for one year, at twelve per cent. six per cent being legal, and the lender insures the ship (which he may lawfully do) (k) for three per cent. he gets nine per cent for the use of his money. Still, these contracts are sanctioned by the law and usage of every mercantile country, and are protected by courts, provided the principal and interest are both put at hazard, by the very contract itself. For this is the one condition of their validity. (I) Loans on bottomry and respondentia are considered in the chapter on the Law of Shipping. hazard of the principal, but contended, that since here the contingency was so remote, that if the owner of the ship or his goods returned it would not happen, the contract was within the statute, for otherwise the statute of usury would be of no effect. But it was replied by the counsel for the plaintiffs, and resolved by the court, that this was not usury, within the statute, but a good bottomry contract. And Chief Justice Bndgman took a diversity between a bargain and a loan, for where there is a plain and square bargain (as here), and the principal hazarded, this cannot be within the statute of usury. But otherwise is it of a loan which is intended where the principal is not hazarded. And there are apparent dangers of the sea, fire, and enemies, between this and the East Indies, which endanger the loss of the principal. And they said that such contracts, called bottomry, tend to the increase of trade, and that on which many orphans and widows live in the port towns of this realm. Judgment by the whole court was for the plaintiff, that this contract was not usurious. Sharpley v. Hurrel, Cro. Jac 208, was debt upon an obligation. "The defendant pleaded the statute of usury; and showeth that a ship went to fish in Newfoundland, which voyage might be performed in eight months, and that the plaintiffs delivered fifty pounds to the defendant, to pay sixty pounds upon return of the ship, off Dartmouth; and if the said ship, by occasion of leakage or tempest, should not return from Newfoundland to Dartmouth, then the defendant should pay the principal money, namely, fifty pounds only; and if the snip never returned, he should pay nothing. And it was held, by all the court, not to be usury, within the statute; for if the ship had staid at Newfoundland two or three years, he should have paid at the return of the ship but sixty pounds; and if the ship never returned, then nothing; so that the plaintiff ran a hazard of having less than the interest which the law allows, and possibly neither principal nor interest." See also, to this effect, Earl of Chesterfield v. Janssen,

1 Wilson, 286,1 Atk. 342, 348, 2 Ves. Sen. 143, 148, per Burnett, J., and Sir John Strange, M. R.; Rucher v. Conyngham,

2 Pet. Adm. 295; The Sloop Mary, I Paine, C. C. 675; Doderidge, J., in Roberts v. Trenayne, Cro. Jac 508; Garret v. Foot, Comb. 133.

(j) Thorndike v. Stone, 11 Pick. 183, infra.

(k) Id.

(l) In Thorndike v. Stone, 11 Pick. 183, the plaintiff brought an action upon a penal bond, the condition of which recited a loan of S18,000, by the plaintiff, to the defendant, which sum was to run at bottomry, upon the ship Israel, at and from Boston, to and in any ports and places, during the term of three years from the date of the bond, at the interest and premium of 12 per cent. per annum, and declared that the defendant should also pay to 'the plaintiff, during the three years, one-half of the gross earnings of the ship, which should go in discharge of. the principal sum and the premium due upon it; that the defendant might make any further payments within the three years; that upon all such payments the plaintiff should thereafter bear the risk only of the amount actually due on the bond, being entitled to retain all payments made to him, whether the ship were lost or not, and the ship being pledged to the plaintiff to secure the balance due at any time; and the bond was to be void npon the defendant's performance of the agreement, and the payment of any sum which might be due under it, at the expiration of the three years. It appeared, also, that the defend* This same principle is applied to some land contracts; as if one buys an annuity, or rent charge, even on exorbitant terms, it is still no usury. From the authorities on this subject it may be inferred, that the grant of an annuity, at any price, for an uncertain period, either upon a purchase or a loan, is not usurious, because the lender or purchaser incurs the risk that he may never be entitled to receive the amount loaned or paid. If the transaction be, in fact and in good faith, a purchase, any actual contingency, although slight, will prevent the contract from being usurious; and even if the annuity granted by the seller be so large that a court of equity will set it aside as unconscionable, yet it is not thereby usurious. But if it appears that a loan was in fact intended between the parties, and the form of an annuity was resorted to merely as the shape or method of the loan, the contingency must now be real and substantial, and of sufficient magnitude; for, if it appears to be so slight as to be merely colorable, or such that the probability of its occurrence could not have been for any material purpose within the contemplation of the parties, this shape of an annuity will not protect the transaction from the penalties of usury, (m) ant mortgaged certain real estate to the plaintiff, to secure the performance of the condition of the bond; that the plaintiff procured $10,000 insurance on the vessel for one year, at five and a half per cent., and that the defendant also insured the vessel for a certain voyage. It was contended, for the defendant, that this was not a bottomry bond, but a contract at common law. and usurious. Putnam, J., delivered the opinion of the court. " We are all clearly of opinion, that the objections which the defendant's counsel have made to the plaintiff's recovery cannot prevail. It is said that this is not a bottomry bond, but a usurious contract; and the court are to determine whether it be one or the other, upon the facts which are agreed by the parties. It is argued, that payment of the money borrowed, is secured in such a manner as to make it a certainty that the plaintiff would receive his money with twelve per cent.; that it is secured by a mortgage of real estate, as well as by a mortgage of the ship, and an assignment of half the freight and earnings for the term of the loan; and it is further objected, that the loan is upon time, and not for a voyage, as it is usually made. But the answer to these objections is, that if the ship should be lost within the time of three years, for which the money was lent, the plaintiff was to lose all the money which should be then due upon the bond.