1820 could, on the same credits, have gotten the same for it, JANUARY, from persons of undoubted solidity. trix & heirs V. Harris and others. The third Bill stated, that Greenhor employed Nor- Greenhow's vell to raise money, and not to buy stock; that Shelton and administra Harris, and Smith all knew that the negotiations were undertaken for usurious purposes, which, as to Shelton and Harris, was evidenced by their refusing to take, without farther security, the $2400 note, though endorsed by Samuel Greenhow, and by their evading a direct answer to the charges respecting it. This Bill contained also other allegations concerning the possession, by the parties, of the several parcels of stock transferred, the rapidity of the transfers from one to another, and some conversations between Harris, Smith and Norvell, from which the complainants inferred usury, and a fraudulent connection and combination among them to the injury of Greenhow. It objected to the former answers for not stating the prices per share at which Smith sold to Greenhow, but only that the latter gave his notes for $11,851 94 cents, for the supposed 93 shares. The 2d, & sd Bills both demanded the production of the books and papers of the defendants before a Commissioner of the Court, without which it was contended the true nature of the transactions could not be fully known, and a fair and legal settlement of the accounts between the parties be made. The answer of John L. Harris to the 3d Bill, denied that the sales of stock made by him to the said Greenhow were pretended, or a shift or contrivance to cover a loan; repeating his averment that the stock was absolutely sold and transferred. "What might have been the views "of said Greenhow in buying the stock, or what might "have passed between the said Greenhow and his the said "Greenhow's agent, it is impossible for this defendant to "say; but he can say, and does aver, that, in both in"stances, the application was made to him not for a loan, but for the purchase of stock, which stock was then held by Shelton & Harris. This defendant had no con❝cern or connection with Norvell or Smith in the said "Stock, or the proceeds thereof; and there was no un trix & heirs V. Harris and others. JANUARY,derstanding, stipulation or agreement between him and 1820. "the said Greenhow as to the use or application that the Greenhow's" said Greenhow should make of it:--he had a right to administra- do what he pleased with it." As to the note of $2,400, this answer was nearly in the same words as the former, still failing to state who the holder" was, of whom that note was purchased. The charges of Usury were again expressly denied. The respondent said that his books, or the books of Shelton & Harris, would not in any particular afford the slightest foundation or support to those charges; but insisted that the demand for their production was wholly unwarranted by the usage of this Court. and the laws of the Country. Smith's administrator and Norvell again answered, denying the connection and combination charged, and new matter of equity set forth, in the last Bill; and also the right of the plaintiffs to call for the books and papers, which had also been denied in their former answers. Norvell particularly said, that "when he purchased the " said Bank stocks, he made no communication for a loan, "as Greenhow did not mean to borrow, but to purchase on "credit." The plaintiffs filed exceptions to these answers of Harris and Norvell, as insufficient and evasive:-1. to that of Harris, for not stating the precise sum given for the note of $2400; nor how that note was discharged or settled; and for not stating (tho' required by the Bills,) who was the holder of the $2400 note, and who procured the security for the payment of it, before Harris would take it:-2. to that of Norvell, because it did not shew the transaction relating to the said note, nor how it was discharged; and whether the balance received by him of Smith was applied to the discharge of it, or how that balance was applied; because the respondent refused to make any statement of Greenhow's notes in his possession which had been paid off; altho' the surrender of them was demanded by the Bill; and because he did not discover all that he knew of the transactions of Greenhow with the other defendants. 1820. Chancellor TAYLOR again dissolved the Injunction, JANUARY, which, twice before, had been dissolved and re-instated.(1) From this order, the plaintiffs were allowed an appeal, Greenhow's upon their Petition to a Judge of this Court. administratrix & heirs V. Harris and others. Atk. 301. Upshur for the appellants. Where the intention is to commit Usury, the particular form of the contract is not to be regarded. (a) It is evident that the intention (a) Floyer in this case was not a purchase of stock; for Greenhow v. Edwards, Сочер. 112; did not wish to keep the stock, but merely to raise mo- Chesterfieldy. ney. He actually kept it not more than two days. The Janssen, 1 idea that he bought on speculation, is contradicted by all the circumstances, which plainly shew that his object was to convert the stock into cash at whatever sacrifice. The price given was so exorbitant, that no man in his senses would have made such a bargain, for purposes of speculation, or to retain the stock. John L. Harris's Answers do not deny the charge that he knew Greenhow's object to be merely the raising of money. He evades it even to the last, giving no direct answer as to this point, but struggling very hard to (b) Mar ap- teney v. Coles, pear to answer the questions put to him, without doing so. 1 Maule and If he had not actual notice that such was the object of Selwyn, 140. Greenhow's application, he had at any rate constructive (c) Brothnotice; for Norvell, being a public broker was the agent erton v. Hatt of both parties, (b) and he had actual notice, by which Vern. 574, therefore Harris was bound. (c) and others, 2 Jennings v. Moore, Ibid. 609; Le Neve v. Le Neve, 3 Atk. 646. v. (d) HausBaylor, 2 Munf. 36; Watkins v. The knowledge of Harris, that Greenhow's object in procuring the stock was to raise money, makes the transaction usurious, as completely as if the contract had been for a direct loan. (d) From 2 Campb. 375, it appears brough that, where a ground of suspicion of Usury is raised, it is incumbent on the party to remove it, or he sidered guilty. In this case, if the proof be there are many strong grounds of suspicion. of loss on the part of Harris was very small; and this is one of the badges of Usury. The sale of stock on long (e) Ham credit, is another; (e) for bank stock is a cash article, mett v. Yea, 1 and it is exceedingly unusual to sell it on long credit. will be con Bos. & Pull. 155; Marsh v. Martin (1) Note. The charges in the Bills were not supported by any affi- dule, 3 Bos. davit or deposition & Pull. 159. JANUARY, The exorbitancy of price in the sale of an article, furnish1819. es also a reason for suspecting Usury; (f) and here the Greenhow's disproportion between the cash and credit prices of the administra- stock was enormous. The distressed condition of Greenhow for want of money, (which Harris well knew,) is Harris and also to be considered. trix & heirs V. others. (f)Orde on Usury, 77; 2 Wm. Bl. rep. 864, Murray v. Harding; 1 He relies in his Answers, repeatedly, on the circumstance that no express communication for a loan took place: but such communication will always be presumed where the real intention of the parties was to borrow on one side, and lend on the other. In Watkins v. Taylor, 2 Esp. N. P. cases, 11, Doe Munf. 424, it was denied that there was any communica▼. Barnard. tion for a loan; yet this Court decided the contract was usurious; surely on the ground that such communication might be presumed. So also in the case of Gibson v. Fristoe, 1 Call 62. v. Battie, Ambl. 271. Harris's not thinking the transaction usurious, if such (g) Moore were the fact, would make no difference in the case.(g) As to the note for $2400, Greenhow himself was evidently the holder," of whom Harris bought it at an usurious discount; otherwise, he would not have given the subsequent deed of trust to secure the payment; for if the note had been in the possession of another person who offered to transfer it, such other person, (being requested by the transferee,) would have given the security, and not applied to Greenhow. The sale of the note was therefore palpably a shift or device to evade the statute. But a note made for usurious purposes, is void in the hands of any body. Quod initio non valet, tractu temporis (h) Young non convalescit. (h) v. Wright, 1 Campb. 141; Jordaine v. Lashley, 6 Term Rep. So far as Charles Smith is concerned, the Usury is yet more apparent. It is a striking circumstance, that, when Lashbroke, 7 Term Rep. he undertook to sell ninety three shares of stock for the 601; Steers v. enormous sum of $11,851 92 Cents, he did not own a single share! He never transferred more than eighty three shares, though he took the bonds and deed of trust for the price of ninety three. Is not the conclusion irresistible that the ten shares not transferred were the premium for the loan? It is impossible by arithmetical calculation to find any integral sum as the price by the 61. share for the 93 shares of stock in this case. The very extraordinary fractional sum of $127 44, appears to have been the price agreed upon. JANUARY, 1820. Greenhow's trix & heirs V. There is no difference in principle between the case of administraMarks v. Morris, 2 Munf. 407, and this case. In this, the plaintiffs do not sue for a discovery, any more than in that case. If, upon the whole, the Court should not consider the Usury proved, the Contracts may perhaps be set aside as unconscionable.(i) Harris and others. (i) Chesterfield v. Janssen, 1 Call for the appellees, contended, 1. That the prices of the stock were not exorbitant; but, if they had been, that Atk. 301. (k) Orde, mere exorbitancy of price, without any previous com- 73.75; Murmunication for a loan, or forbearance, is not Usury.(k) ray v. Harding, 2 Wm. 2. That there was no evidence of any loan, or com- Bl rep 862, munication for a loan, or forbearance, as to Shelton and 864 & 3 Wils. 395; Harris; but the transactions were sales of stock in their Jones v. Hubbard, in this possession at the times of the sales, and for the credit Curt; 4 Leprices at those periods. There are no circumstances on. 208; 1 from which to infer an usurious intent; and usury is not 121. to be presumed, without proof.(l) Anderson, (1) Lame McGuire v. Wash. 368. 3. That Smith's contract was not usurious; because, go v. Gould, in that case also, there was no communication for a loan 2 Burr. 716; or forbearance, and the price was the credit price of the Parker's day. It is not material whether he had stock at the time ex'or., 1 or not; for there is nothing improper in a man's contracting to furnish stock, although he have none at the moment of contract. He was a dealer in the article, and every thing done in the course of trade is lawful.(m) In fact, he had some stock at the time, and purchased more to enable him to comply with the contract. His getting some from Norvell makes no difference; for both were in the market, and he might lawfully buy of him. 4. There was no connection between Shelton and Harris and Smith; nor between them, or either of them, and Norvell. None of the circumstances resemble the case of Watkins v. Taylor, 2 Munf. 424; for that was, in substance, an advance of money, to be restored with interest be (m) Floyer v. Edwards, Cowp. 112. |