George Shiras, Jr.

“ The precise character of the contract between the present parties is not clear. It has some of the features of a loan of money; in other respects it resembles a contract of life insurance. But our examination of its various provisions and of their legal import has led us to accept the conclusion of courts below that the scheme embodied in the application, notes, and mortgage was merely a colorable device to cover usury. The supreme court of Minnesota has more than once had occasion to consider this very question. ”

“ Justice Miller, who said:
'It is denied that these statutes of Illinois (giving the right to redeem) are of any force in cases where the decree of foreclosure is rendered in a court of the United States, on the ground that the equity practice of these courts is governed solely by the precedents of the English chancery court as they existed prior to the Declaration of Independence, and by such rules of practice as have been established by the supreme court of the United States or adopted by the circuit courts for their own guidance. ”

“ It would seem that no argument is necessary to establish the proposition that where substantial rights, resting upon a statute, which is clearly within the legislative power, come in conflict with mere forms and modes of procedure in the courts, the latter must give way, and adapt themselves to the forms necessary to give effect to such rights. ”

“ The circuit court of appeals affirmed the decree of the circuit court. Two of the judges concurred in holding that the contract was usurious, and that the complainants were therefore entitled to the relief prayed for. One of the two judges so holding construed the contract as one of life insurance, and hence also void under the Minnesota laws. The third judge, while apparently concurring in the view that the contract was usurious, thought that the complainants were not entitled to a remedy for a reason which we shall presently consider. 40 U.S. App. ”

“ If one or the other must give way, good sense unbesitatingly requires that justice and positive rights, founded both on valid statutes and valid contracts, should not be sacrificed to mere questions of mode and form.' See, also, to the same effect, the case of Holland v. ”