
    *Hopkins v. Baker’s Adm’r et als.
    
    January Term, 1856,
    Richmond.
    Absent, Thompson, J., ana Geomeb, J.
    1. Chancery Practice-Parties — Assignee.—A petition filed in a chancery cause in the name of an assignor of an interest, asking that he may he made a party to protect that interest, and with a statement at the foot of the petition that it “is for the benefit of” the assignee, does not make the as-signee a party to-the suit, or entitle him to object to the decree by bill of review or appeal in his own name.
    2. Same — Defendant to Dismissed Bill Cannot Contest the Decree by Appeal, — A party defendant has no right, by bill of review or appeal, to contest a decree, dismissing the bill; for, in such case, the decision is in his favor. It seems, that if he desires any relief he should have filed a cross-bill.
    3. IJsury — Agreement by Debtor to Pay Commission ' to Creditor’s Counsel. — In a negotiation between debtor and creditor, it is agreed that the debtor, besides paying the principal and interest of the debt, out of certain securities placed in the hands of the creditor’s counsel (who is his agent in the transaction) to be collected and appropriated to the debt by him, shall pay the counsel two and a half per cent, commission on the debt. If this is a bona fide allowance to the counsel for his trouble in the negotiation, and the extra trouble of collecting the securities, it is not usury.
    John Baker died in 1823, leaving a wife and four children, and directed his executor to sell all his estate, real and personal, except such as he had given to his wife and children specifically, and to invest the proceeds in stock, the dividends on which were to be divided among his wife and children —to his wife one-third’ and to his children two-thirds; and at the death of his wife the principal to be divided among his children. In pursuance of the authority given in the will, the executor (Baker Tapscott, who had married one of the children of the testator) sold to one Engle a tract of land belonging to the estate, for cash in part, and in part on credit; ■ and took for the deferred payments several bonds. In 1835, the executor being individually indebted, in a large amount, to Hopkins & Brothers of *Baltimore, placed in the hands of their counsel three of Engle’s bonds (with other securities) as collateral security for the payment of the said debt, with the written assent of Ann Baker, the widow, and Samuel D. Baker, one of the sons of John Baker, the testator. This arrangement was affected by means of the following agreement:
    
      ‘ ‘ Memorandum of an arrangement made between Andrew Hunter, as counsel for J. Hopkins & Brothers,, of Baltimore, and Baker Tapscott, Esq., of Jefferson. Said Hunter holds for collection a single bill, executed by said Tapscott to J. Hopkins & Bros., for $6,138 39 cents, dated February 23rd, 1835, due on demand, to cover which by way of collateral security, other bonds and notes and accounts on various persons, have been placed in said Hunter’s hands for collection, as per former receipts, to the amount of about $2,649, leaving a balance to be provided for under this arrangement of about $3,489. Said Hunter also holds in like manner for collection a promissory note, executed by said Tapscott and N. B. Robinson & Co., to Ñinian E. Turner, for $1,130, dated October 14th, 1833, payable one year after date, and endorsed by said Nin-ian E. Turner to J. Hopkins & Brothers. By wa3 of collateral security for said two sums, making together about $4,619 (not regarding interest in any of said estimates), said Tapscott has executed and handed over to said Hunter, for said Hopkins & Brothers, his four promissory notes, each for $1,200, dated each on the 3d day of October, 1835, and payable respectively, at six, eight, ten and twelve months from date. He has, moreover by way of collateral security, &c., placed in the hands of said Hunter, for the same purpose, three several single bills (secured by a deed of trust) executed by a certain Samuel Engle, dec’d, to said Tapscott, as the acting executor of John Baker, dec’d, each dated on the 13th day of January, 1831, and payable, the first, being for $1,000, on the 1st day of October, 1837, the second, being for $1,000, payable on the 1st day of October, *1838, and the third for $1,856 60 payable on the 1st day of October, 1839; each of said bonds bearing interest from the 1st day of April, 1832. Said Hunter is to proceed, as the counsel of said Tapscott, to collect and realize the money on said Engle’s bonds as soon as possible, and whenever collected, in whole or in part, to apply the proceeds to the payment of so much of the said foregoing debts due from Tapscott and Tapscott & Co. to Hopkins & Bros., as shall remain otherwise unpaid. It is moreover understood that the said Engle’s bonds are to stand in like manner as a collateral security for two certain other promissory notes executed by said Tapscott and Robinson & Co. to Ñinian E. Turner, and by him endorsed to said Hopkins & Bros., each for $1,130, each dated on the 14th day of October, 1833, and payable respectively in thirty months and two years from date, and to be satisfied out of the proceeds of said Engle bonds, in the same manner as above provided, if not sooner paid off and satisfied by said Tapscott or Robinson & Co. It is moreover, expressly agreed, that if said Tapscott shall fail to pay either of said promissory notes of $1,200, as they respectively become due, so that any one of them may be protested (the same being negotiable notes), then the said Hopkins & Brothers shall be at liberty forthwith to bring suit on the whole of said bonds and notes due as before mentioned from him individually and from him and said Robinson & Co., inasmuch as such obligation would release the liability of the endorser Turner. It is furthermore, in conclusion, agreed, that said Tapscott is to pay said Hunter his commission, at the rate of two and a half per cent, on the whole amount of said debts due from him to Hopkins and Brothers, to wit: the bond of $6,138 39, including also the whole amount of said several promissory notes, executed by him and said N. R. Robinson & Co., to N. E. Turner, and by the latter assigned the said Hopkins & Brothers, as aforesaid. Witness, our hands, this 17th day of October, 1835. ’ ’
    Sometime after Baker Tapscott became insolvent, and '"after his insolvency a suit was instituted by the Washington County Bank and other creditors of Engle, against his administrator and heirs, for a sale of his estate, real and personal, to be subjected to their claims. The parties interested in the estate of John Baker were not made parties to this suit, but a petition was filed therein by Baker Tapscott, as executor of John Baker, making Engle’s representatives, real and personal, parties to it, claiming to be made a defendant for the purpose of having the debt of Engle to him as executor, by the bonds already mentioned, and secured by deed of trust, paid.out of the sale of Engle’s estate, to be ordered in that case. This petition was in fact drawn by the counsel of Hopkins & Brother, and a memorandum or nota bene was added to it, stating that 11 this suit is for the benefit of Hopkins & Brother.”
    In 1839, while the above suit was pending, and after the court had directed the sale of Engle’s lands, and the money had been brought into court, (the fund due on the deed of trust to J. Baker’s executor being reserved in the hands of the commissioner for those entitled thereto,) William E. Baker, one of the children of J. Baker, an infant, by his next friend, filed a bill making the proper parties, and impeaching the assignment to Hopkins & Brother. They and the other parties answered, and in 1840 Henry Berry, administrator of Baker Tapscott, (who had since died,) filed a cross-bill in said suit, making all the parties to the original bill defendants to the cross-bill, and further impeaching the assignment as usurious. The only ground on which it is so charged is, that Tapscott agreed that he would allow Andrew Hunter, counsel of Hopkins & Brother, and their agent in making the arrangement, 2)4 per cent, commission on the amount of their debt.
    These cases came on to be heard together, by consent of all the parties, except Hopkins & Brother, in 1845, when the court dismissed the bill of W. L. Baker and the cross-bill of Henry Berry, administrator, &c., *and in the case of Washington County Bank v. Engle — after expressing the opinion that the assignment between Tapscott and Hopkins & Brother was usurious — decreed, with the consent of all the parties except Hopkins & Brother, that Henry Berry and Andrew Hunter, commissioners in this case, should pay to Henry Berry, administrator d. b. n. c. t. a. of J. Baker, the funds reserved in their hands, arising from the sale of Engle’s land.
    At the ensuing term Hopkins & Brother filed, by leave of the court, a bill of review, alleging various errors in the decree, which was answered by the administrator, Berry, and in 1848 the court dismissed the bill of review, for the following reasons : 1st, that Hopkins & Brother were not parties to the suit of the Bank v. Engle, because their interest in and right, as. assignees, to the Engle bonds could not be recognized under the petition in the name of Tapscott, but that that petition must be considered in a chancery court (though it would be otherwise at law) as the petition of Tapscott himself as executor — and that hence, not being a party to the case, he was not bound by the decree in that case, and had no right to contest it; and 2d, that they could not complain of the decree, so far as it was a decree in the suits of W. E. Baker and the cross-bill of Berry, because the court had dismissed the bills in those cases, and they, as parties, had no right to complain of a decree dismissing bills filed against them.
    In this decree it was admitted by the court that it had erred in deciding the question of usury — as, in truth, the parties between whom alone that question could properly arise, were turned out of court.
    Finding that by this extraordinary state of the litigation, the question, so far as their rights were concerned, was disposed of on its merits, while at the same time they had no means of contesting it, Hopkins & Brother filed a bill of injunction against the said decree, setting forth the foregoing facts among others, '^insisting on the bona fides of the assignment, denying that it was tainted with usury, and praying that the fund might be paid to
    them, or at least that the share of Anna Baker, S. D. Baker, and Baker Tapscott’s wife, who, as he insisted, had assented to the assignment, might be so paid. To this bill Henry Berry, as administrator of Baker Tapscott, and as administrator d. b. n. c. t. a. of John Baker, was alone made a party, and answered, insisting that the fund should remain in his hands, and taking the same positions, in respect to the assignment, and the other matters in the case, which he had already taken.
    The injunction was at first allowed, but at the final hearing of the case, in November, 1849, it was dissolved and the bill dismissed.
    From this decree Johns Hopkins, surviving partner of Hopkins & Brother, appealed to this court.
    Patton, for appellant:
    
    
      It is said the assignment is void for usury, because it provides for the payment of 2% per cent, to Hunter by Tapscott, over and above • the interest to be paid by him, as a commission for collecting the proceeds and settling the whole matter between Hopkins and Tapscott. Now, usury is the payment of more than six per cent, for the loan or forbearance of a fund. But if a contract is made to secure a debt to another —-the principal and legal interest only' — and an agreement is made for a percentage beyond the interest, to be paid bona fide, as the expenses of the transaction, to an agent, who negotiates it, there is no usury. To make it so, the arrangement must be ascertained to be a mere device to cover the usury. Campbell v. Shields, 6 Heigh, 517.
    *Morson and John Thompson, jr., for appellees:
    1st. This is an effort to try by an injunction, instead of by appeal, 'a matter already decided, in substance, three several times. The three cases decided before the injunction bill was filed, put the claim of Hopkins & Brother directly in issue, and the court decided against them and awarded the money to Berry, the administrator. It is plain, therefore, that had there been error in these suits, and the appellant had applied in due time, it might have been corrected in an appellate court. We do not agree with the reasoning of the court below, that the appellant was not a party to the suit of the Bank v. Bucas. We say that he was a beneficiary upon the record, whilst the administrator de bonis non of John Baker, dec’d, was also a party appellant, and they might well, by a rule or otherwise, have contested their claims. But this was not necessary, for issues were directly made in the next two suits, putting in issue the appellant’s claim. Now, surely, he.or they might have appealed if there was error in these cases, especially as it appears that by consent, all the causes were heard together. If mistaken in the foregoing view, we cannot be mistaken in saying, that when his bill of review was dismissed, he being the plaintiff, that the right of applying for an appeal was clear and indisputable. If the right to apply for and obtain an appeal existed, and it was not exercised, we humbly submit that there is an end of this case, no matter what error existed in all or any of the preceding cases; and here we feel confident we might rest our case.
    2d. As to the usury. Hopkins & Brother are to receive six per cent, interest on their debt, and they are to receive besides 234 per cent, commission, to be paid to Hunter, which they would otherwise have had to pay themselves — and this is paid for time and forbearance in "the payment of a debt. The statute condemns all interest exceeding six per cent, for the forbearance to collect, as well as for the loan of money. The case of ^Campbell v. Shields, cited on the other side, does not, as we think, at all weaken this position. In that case, the contract did not make it necessary that the commission should be paid, for if the money was punctually paid, the commission added was not to be paid. In the case at bar, the payment of the commission was inevitable.
    Patton, in reply:
    As the case already cited is regarded as conclusive on the question of usury, nothing more will be said on that question.
    It is submitted, that Hopkins & Brother may, at least, claim this fund from the legatees of Baker, if they are entitled to it; indeed, this proposition is not disputed; but it is insisted that the claim against the administrator should have been made by appeal, and not by injunction. But could Hopkins have appealed from either of the decisions? In the case of Bank v. Bugle’s adm’r, the Messrs. Hopkins were not parties, except by Tapscott’s petition, and the court held that they were not entitled to the benefit of it. It is true a person not a party to a suit, yet interested in it, may appeal in the name of the party under whom he claims, but that party in whose name only Hopkins might have appealed was Tapscott, and the case was decided in his favor, so no appeal lay in his name; and, as to *the other cases, the bill of review was expressly dismissed on the ground that Hopkins & Brother were not interested to contest them, for that they were defendants then, and the bills against them were dismissed.
    
      
      For ttie future history of this litigation, see Gilmer v. Baker, 24 W. Va. 72.
    
    
      
      Usury. — See monographic note on “Usury” appended to Coffman v. Miller, 26 Gratt. 698.
    
    
      
      The counsel on both sides discussed the validity of the assignment, in respect to the right of the executor to make it, ancl other questions which arose in the record, but as the court did not consider these points, the arguments on them are not. reported.
    
   FIEBD, P.,

delivered the opinion of the court:

The appeal in this case brings up the record of the injunction case of Johns Hopkins, surviving partner of J. Hopkins & Brother against Henry Berry, as administrator of Baker Tapscott, and as administrator de bonis non, with the will annexed, of John Baker, deceased. The cases of the Washington Bank v. Engle’s adm’r, of *Wm. L. Baker v. J. Hopkins & Brother, and the case of Tapscott’s adm’r v. Hopkins & Brother, on a cross-bill, are not before us. The records of the two cases last mentioned appear to have been copied in the record- of this case, but no appeal has been taken from the decree made in either of those three cases. In the two cases last mentioned, the bills were dismissed by a decree of the court, made on the 20th February, 1845; and, on the same day, a decree was made in the case of Bank v. Engle’s adm’r, &c., by which the commissioners were directed to pay the debt due from Engle’s estate, on account of the land purchased by Engle of Baker Tapscott, executor of John Baker, over to Henry Berry, the administrator de bonis non, with the will annexed, of John Baker, decea'sed. Hopkins & Brother then filed a bill of review to correct what they supposed were errors to their prejudice, in the order of the 20th February, 1845. The bill of review was dismissed on its hearing, which was right and proper, because Hopkins & Brother were not parties to the suit of the Bank v. Engle’s adm’r, and had consequently no right to have the order made in that case reversed ; and for the same reason they had no right to appeal from that decision. They had no right to file a bill of review, in respect to the other two cases, because the bills having been dismissed, the decrees were decrees in their favor; and for the same reason, they had no cause to take appeal from the decree in either of the cases. It is true that the court in the case of the Bank v. Engle’s adm’r, in which Hopkins & Brothers were not parties, expressed the opinion that the transfer of the bonds from Baker Tapscott to Hopkins & Brother was usurious; yet in the two other cases, in which they were parties, no such opinion had been expressed by the court, and the effect of the decree, dismissing the bill in those cases, was to sustain the validity of the transfer, notwithstanding the imputation of usury. After the decree of the 20th of February, 1845, in the case of the Bank v. Engle’s adm’r, had been made, Johns Hopkins, on behalf of ^Hopkins & Brother, filed his bill of injunction, setting up his claim to the bonds due from Engle’s estate to Baker’s estate, under the transfer made by Baker Tapscott to Hopkins & Brother, by virtue of the agreement of the 17th October, 1835, calling upon the court to restrain the commissioners from paying over the money to Henry Berry, administrator de bonis non of John Baker, under the decree of the 20th February, 1845. The injunction was granted. Berry, the defendant, demurred to the bill, and answered it also. He neither admitted nor denied that the funds had been transferred as alleged in the bill. He said, that when the alleged transfer was made by Baker Tapscott, he was indebted to his brother’s estate on the executorship account, and that there were sundry debts of large amount then and yet outstanding against John Baker’s estate. These bonds were payable to Baker Tapscott, executor of John Baker, dec’d, and so expressed on their face, and •were held by Tapscott as trustee for the estate of his testator. Under these circumstances, the defendant, in his answer, said and contended, that Baker Tapscott had no right to apply the bonds to his own use, and charged that the fact was known to Hopkins & Brother at the time. He referred in his answer to the agreement of the 17th October, 1835, and charged that it was usurious on its face. Upon the hearing of this cause, the court dissolved the injunction and dismissed the bill; and it is from this decree that the appeal has been taken.

It appears from the record that in September, 1835, Mrs. Baker and her son Samuel D. Baker had executed a paper, authorizing a transfer of the bonds to be made by Baker Tapscott. The plaintiff claimed, by virtue of this paper, a right under the transfer to three shares at least of the fund, and to Baker Tapscott’s share, by virtue of his marital rights. But as those persons were not parties to the suit, it was not proper to determine how far that paper could operate to devest them (Mrs. Baker and Samuel D. Baker) of their rights. *The grounds on which the injunction was dissolved and bill dismissed do not distinctly appear. But as the court had on a former occasion, in a suit in which the plaintiff was not a party, expressed the opinion that the transfer of the bonds was usurious, as the case at that time, for the want of the proper parties, was not in a condition to be decided on any other ground, the inference is that it was dissolved on the defence of usury. It has, however, been earnestly insisted upon by the ap-pellees’ counsel, that the injunction should have been dissolved and bill dismissed, because the questions raised by the bill of injunction had already been decided against the plaintiff in the former suits, and that the decision was, until it was reversed on appeal, final and conclusive upon the plaintiff, and suggested that the only remedy, if any- existed at all, was by appeaJ. From what was it that the plaintiff ever had a right to appeal? The cases of William L. Baker against him, and of Baker’s administrator against him and others, on cross-bill, had been dissolved, and were of course decided in his favor. He could not be expected to appeal from the decision made in either of these cases. As to the decree made in the case of the Bank v. Engle’s administrator, he was not a party in the suit, and could not of course appeal in that case; nor could he have appealed successfully from the decision on the bill of review. Then in what case was it that he could have appealed?

But it is said that the decree, declaring the transfer of the bonds to be usurious, should be regarded as having been made in one of the suits that was dismissed. To know what should be regarded as having been decided in any suit, is to be found out by looking at the record of that suit itself. And unless on inspection of the record we find the decree there, we must conclude that it had not been made in the suit. If we look at the record of the two suits, in which the bills were dismissed, we shall find no opinion or decree declaring the transfer of the bonds to be usurious. And the court *itself, in the opinion delivered in the case of the bill of review, says 1 ‘that was certainly error in the final decree, in deciding the questions of usury, when in truth the parties between whom that question could properly arise, were turned out of court.” And adds: “This, however, is not an error of which Hopkins & Bros, can complain, for the reason that they are not bound by it.” Why, I say, were they not bound by it? It was because they were not parties to the case of The Bank v. Engle’s administrator, in which that opinion had been expressed. But suppose they could have appealed from the decree which the court rendered in that case, what would have been the inevitable result? That was a suit brought by the creditors of Engle, to recover the amount of their debts out of Engle’s estate. The debt due to Baker’s estate, on account of the land purchase, was entitled to be first paid. Neither the creditors of Engle, nor did any one else, contest this debt on its priority, and nothing was said, in that suit, of the transfer of the bonds by Baker Tapscott, for the benefit of Hopkins & Brothers. Indeed, the petition which had been filed in that suit, in the name of Baker’s administrator, had been filed by their counsel, Hr. Hunter, at their instance, praying that the court might make an order in the cause, directing the payment of the money to Baker’s administrator. This being the character of the suit of The Bank v. Engle’s administrator, there was no error in the order in directing the payment of the money to Baker’s administrator, and the decree must consequently have been affirmed, if it had been appealed from by Hopkins & Bros.

The object of the injunction suit was not to correct any error which had been committed by the court in either of the suits above referred to, but it was to establish the validity of the transfer of Engle’s bonds by Baker Tapscott, by the assignment of the 17th October, 1835 — to ascertain the extent of the plaintiff’s rights to the bonds under the transfer — to be allowed to receive whatever might be found to be due to him on that account, *and in the meantime to restrain the commissioners from paying over the . money to Baker’s administrator, under the decree of the 20th February, 1845; all of which was strictly right and proper, except so far as that injunction may have interfered with the rights of Baker’s creditors.

In relation to the defence of usury, we have no hesitation in saying that that de-fence should not have been sustained by the court. The two and a half per cent, was not a premium given to Hopkins & Brother for the use of their money, nor for giving indulgence, by deferring the time of payment of the debt due to them from Baker Tapscott. It was allowed to Mr. Hunter, their counsel, as compensation for his extra trouble in collecting the debt due from Engle’s estate; and, to say the least of it, it was a'very reasonable compensation for that service.

I think, therefore, that the decree should be reversed with costs, and the injunction re-instated; but we cannot here decide on the rights of the plaintiff under the transfer of the bonds before'referred to, because the proper parties are not before the 'court. Mrs. Baker, the widow, and Samuel D. Baker, the son, who executed the paper of 16th September, 1835, authorizing B. Taps-cott to dispose of the bonds, should be made parties to the suit, and as the extent of the rights of the plaintiff cannot be ascertained until the executorship account of the personal representatives of John Baker, deceased, are settled, and the debts proved or their payment provided for, and the legatee accounts settled, it is also necessary that all the children of John Baker should be made parties, or their legal representatives.

The suit must, therefore, be remanded to the Circuit Court of Jefferson county, with directions to cause the bill to be amended, and all necessary parties brought before-the court, and then to proceed to a hearing and decision, according to the rights of the parties.

But nothing in the order re-instating the injunction should have the effect of preventing the Circuit Court *from so modifjTing the injunction as to permit the commissioners under the decree of the 20th Eebruarjr, 1845, to pay over to John Baker’s administrator so much of the fund in question as may be necessary for the payment of the debts due from John Baker’s estate.

CEOPTON, J., and TYLER, J., concurred.

The decree was as follows:

This day came the parties, by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, that the said decree is erroneous; therefore, it is decreed and ordered, that the said decree be reversed and annulled, with costs, and that the injunction awarded the appellant on the 25th day of October, 1848, be re-instated; but the said injunction is not to have the effect of restraining the commissioners, Hunter and Berry, from paying over so much of the fund referred to in the appellant’s bill as may be actually necessary to be paid over to the administrator de bonis non, with the will annexed, of John Baker, to enable him to pay the outstanding debts, against the estate of his testator, as may ' be directed by the Circuit Court of Jefferson county, to be so paid over to him for that ' purpose. And the cause is remanded to the Circuit Court of Jefferson county, with i directions to cause the bill to be amended, I by making Mrs. Ann Baker, the widow of | John Baker, and all the children of John i Baker, deceased, parties defendants, or the I executors or administrators of such of them I as may be dead, and when the cause shall ¡ be property matured for hearing, to decide the cause according to the rights of the parties, without regard to any decision heretofore made in this or any suit referred to in the bill, answer or proceedings in this cause, which either has been made, or has been alleged to have been made, as bearing upon the questions that may arise on the hearing of this cause.  