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MARCH, 1820.

Stone

V.

Ware and
Smith.

this proposel, William I. Stone, to prevent the levying of the execution, assented. Ware, being told that such agreement was usurious, drew up an account of the transaction, in which he charged interest at the rate of six per Centum per annum on the amount of the execution, and added thereto an item of 23l. 11. 8., “for sundry services done and settled;" (without saying what those services were; which sum amounted exactly to nine per centum per annum on the said amount;) producing, with 817. 9. 24. to be paid by himself to William I. Stone, a total of 351l. for which the bond of Hezekiah Stone was taken, payable on that day, with William I. Stone, the said Ware, and George Holman his sureties, to Charles Smith, who was altogether ignorant of the usury. On this bond, Smith obtained a judgment at law; whereupon, a Bill for an Injunction, and for general relief, was filed in the Superior Court of Chancery for the Richmond District, by William I. Stone and Hezekiah Stone against Ware and Smith; stating the foregoing facts, with their accompanying circumstances; and alledging that the complainant Hezekiah Stone took it for granted that Ware was to pay his son the real difference between the execution and the required bond, and knew nothing of the usury until after the judgment upon the bond was obtained against him.

Ware answered; insisting that his aforesaid charge for services was not usurious; but submitting to account. This answer was adjudged insufficient; and he filed another, in which he said there had been much talk about 15 per cent., and the sums charged might have been ascertained by a computation at that rate; but that the said sum of 23l. 11. 8 was allowed him for his services in riding about, at a very inclement season of the year, with great danger to his health, and exerting himself to have the arrangement in question concluded, for the relief of the complainant William I. Stone, who considered it very beneficial to him, and declared himself perfectly satisfied with it.

Smith's answer denied any knowledge of the Usury, and declared that the bond to him was fairly taken, for the price of a negro sold to Ware.

MARCH,

1820.

Stone

V.

Smith.

The facts stated in the Bill, against Ware, were sup- Ware and ported by affidavits; but no objection appeared to Smith's conduct in any respect. It was proved that Ware paid to William I. Stone the difference, amounting to 817. 9. 24 as aforesaid.

Chancellor TAYLOR dissolved the Injunction, and afterwards dismissed the Bill altogether; "being of opi❝nion that however clear it may be that the defendant "John Ware extorted usury from the plaintiffs in the "transactions in the bill mentioned, yet their remedy was at law, and not in equity; since no discovery is "sought by their Bill."

The case was brought before this Court by a Petition of appeal.

Bouldin for the appellants, made four points on the subject of the Court's jurisdiction; 1st, that Hezekiah Stone shewed sufficient cause for not defending the suit at law, in that he was ignorant of the fact:-on him the transaction was a fraud; and a party's discovering a material fact after judgment, is good ground for relief in equity.

quet v. Dash

2d, The ordinary rule, that a party shall not apply to a Court of Equity for the relief he might have had at law, does not obtain in cases of Usury. The party oppressed by an Usurer is not particeps criminis, and therefore (a) Bosanmight, always by bill in Chancery, and now by action at wood, Cases law may, recover back the usurious interest, if paid:(a) Temp. Talb. and this, even though the money were paid in obedience Bromley, Douglas,696, to a judgment or decree. (b) But the Statute against Usury gives the Court of Equity express jurisdiction, (b) Moore which is not waived by failing to plead at law.

3d, In this case, the complainants had no remedy at law; the bond to Smith being for a bona fide debt due him, without the least taint of Usury in it. The inducement, by which Smith's debtor obtained other persons to become bound for the debt, being unknown to him, could not avoid the bond.(c)

38; Smith v.

V. Battie,
Ambl. 371.

(c) 7 Bac. 201, citing 7

Mod. 119.

MARCH, 1820.

Stone

V.

Ware and
Smith.

(d) Scott v. Brest.2 Term Rep. 238.

sey v. Jacob,

Anon., 2

Mod. 279;
Cuthbert v.
Haley, 8

4th, The defendant Ware, by his answer submitted to an account, and can not afterwards object to the jurisdiction of the Court. That account should be audited, allowing only legal demands.

On the merits, the Usury is proven by the Answer of Ware himself. Admitting his own statement to be cor rect, the services charged were rendered, only in securing and collecting the debt on the execution, for his own benefit: the sum allowed was therefore clearly usurious.(d)

Stanard contra.-It being admitted on all hands that the bond to Smith was free from all taint of usury as to him; it follows that, whatever may have been the nature of the contract between Stone and Ware, no relief ought (e) Ellis v. Warnes Cro, to be given against Smith. (e) The Injunction was thereJac. 32; Hus- fore properly dissolved, and Bill dismissed, as to Smith, 1 Salk. 344; who was causelessly made a party; and the case ought to be considered as if he had never been before the Court. The testimony introduced to prove the Usury as to Ware, is by no means conclusive: but, let it be conceded 390; Parr v. that the contract was usurious; the question still arises, was Stone entitled to come before any forum, at the time this suit was instituted? Not a legal forum; because he had paid nothing in pursuance of the contract:-he had merely entered into an obligation, jointly with the other party to the usurious agreement, to pay money, and would be puzzled to frame an action that he could suc cessfully prosecute at law. The like objection holds to the suit in equity.

Term Rep.

Eliason, 1
Bast, 92.

But, suppose the money had been paid, could the Court of Equity hold jurisdiction of this case? That jurisdiction is twofold;-1st, under the Statute against Usury; and, 2d, under the general principles that regulate those Courts in the application of their powers.-The jurisdiction is not sustainable by virtue of the Statute; 1st, because the Bill is not a Bill for discovery; and, 2dly, because the statutory remedy, according to the fair interpretation of the Statute, is to be used, only where there is some outstanding contract, or security, on usurious consideration, from the enforcement of which

the plaintiff seeks protection; and not to recover back from the defendant money paid to, or contracted to be paid for, him. Neither can such jurisdiction be sustained upon general principles. When the powers of Courts of Equity are applied to usurious transactions, they are subject to the same limitations as in other cases. The first limitation is, that relief is not to be given where the plaintiff seeks no discovery, or can prove his case without any; which is the case at bar. The decision in Marks v. Morris, 2 Munf. 407, is not opposed to this rule; for that decision is based on the consideration that the usurious contract was one to oppose which the plaintiff in equity had no day in Court.

Indeed, there are but three classes of cases where relief is or can be sought, in Equity, from an usurious contract or it's effects:--1st, where there is some outstanding obligation or security which the holder may enforce at law by suit, and which the plaintiff in Equity seeks to have surrendered:-2d, where the contract has been carried into effect, the usurious gain paid, and the plaintiff seeks to have it refunded:-3d, where the contract is of such a nature that it may execute itself, or at least be executed without suit; so that the party charged by it has no day in Court to shew it's usurious nature in avoidance of it.

The first class falls properly under the Statute, and the Bill is a Bill of discovery. At all events, the case at bar does not belong to it. In the second class, the bill must also be a Bill of discovery; for the party who would prove his case, would prove himself out of Court. The case at bar does not belong to it, because the money has not been paid, and because the plaintiffs do not rely on a discovery. The third class, though one in which it is not necessary that the Bill should be for a discovery, yet, obviously, does not comprehend the case now in ques

tion.

Having considered the question of jurisdiction of the Court below, with respect to the nature of the plaintiff's claim, I will bestow one moment on the question of the jurisdiction of this Court in relation to it's amount.

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MARCH, 1820.

Stone

V.

Ware and
Smith

MARCH, 1820.

Stone

V.

Ware and
Smith.

Suppose the fact of Usury established; the objection, that the money has not been paid, out of the way; and the jurisdiction, as to the subject matter of the claim, clear; what is that claim? 231. 11s. 8d. in it's amplest dimensions! This is all that has been stipulated to be paid for usury, or that has been paid, if Mr. Bouldin will have it so; all that the plaintiffs can now, or could in the Court below, pretend to claim, after having (as before remarked,) in substance, confessed there, that they had no right to relief against the bond or judgment! This sum will not support the jurisdiction of this Court. The cause was again argued, by the Court's direction; upon two questions; 1st, whether the contract was usurious; and 2dly, if so, whether there must be a forfeiture of the whole debt, or only of the usurious interest.

Bouldin. 1. The pretence in this case of compensation for services rendered and settled, is a mere shift _(ƒ) 2 Term to evade the Statute.(ƒ) Rep. 238.

2. The plaintiffs are entitled to protection to the full amount of the bond to Smith, in which they were sureties for Ware, who in reality was the principal obligor, although the name of Hezekiah Stone was first inserted and subscribed. By this simple contrivance, the Usurer has made the borrower paymaster of a debt of his. If it can not be defeated, the borrower is bound hand and foot, and without remedy. The question before the Court is, who ought to pay the bond? I answer, the real debtor, who is Ware. Smith, I admit, is entitled to his money; but he ought to get it, not from Stone, but from Ware. The Court, since all the facts are before it, may fix the debt on the right person. The order of the signatures to an obligation, though prima facie inducing a presumption that he whose name is first signed is the principal obligor, is not conclusive. It is only by the usurious arrangement, that this differs from the common case of a surety seeking to make his principal responșible in the first place.

The present case is stronger than that of Marks v. Morris. In that case, if a suit had been brought at law to recover the property, the Usury might have been

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