
    *Smith v. Nicholas &c.
    April, 1837,
    Richmond.
    (Absent Brooke and Cabell, J.)
    Chancery Practice — Usury —Allegation and Proof. § —Where usnry is relied upon by a defendant in equity to defeat the plaintiff’s whole claim, the facts constituting- the usury must be distinctly alleged, and clearly proved according to the allegation; but it is not necessary to allege them with the formal strictness of a plea of usury at law. . ,
    
      Same — Same.—Case in which the defence of usury was held to be well made in the answer.
    Usury—What Constitutes — Interest at Hazard.— Where, upon a loan of money, the lender, besides his principal, contracts to receiye, in lieu of interest, something which may be worth more than six per cent, per annum, though it may perhaps prove to be worth less, as the dividends on bank stock, the contract is usurious.
    Same — Same—Forbearance of Stock Debt. — A debtor, owing a certain number of shares of bank stock, agrees with his creditor to pay him, at a future day, the market price of the stock on that day, 150 dollars per share, at the creditor’s option, with the dividends; Held, the contract is usurious.
    By an obligation dated the 1st of Eebru-ary 1819, Wilson C. Nicholas bound himself in the penalty of 20,000 dollars, to assign and transfer to Joseph Smith, on or before the first day of July following, one hundred shares of stock of the bank of the United States, and to pay the lawful interest ’ which should accrue from the date of the obligation, upon 10,000 dollars; and by indenture of the same date, Nicholas conveyed to C. Johnson a ' tract of land in Goochland, containing 1800 acres, together with sundry slaves and other personal property, upon trust, that in case of failure to transfer the stock, and pay the interest, according to the terms of the obligation, Johnson should sell the property, and out of the proceeds pay to Smith so much money as the stock would be worth in cash in the Richmond market on the said 1st day of July, with lawful interest thereon from the date of the indenture.
    *In November 1819, Smith filed a bill in the superiour court of chancery for the Staunton district, against Nicholas and Johnson, setting forth the execution of the obligation and trust deed aforesaid by Nicholas; averring that Nicholas had failed to transfer any part of the stock, or pay any part-of the interest, and now denied that the plaintiff was entitled to the benefit of the obligation and deed; in consequence whereof, Johnson the trustee declined acting under the said deed: and praying, therefore, that the court would direct the trustee to proceed in the execution of the trust, and would grant the plaintiff such other relief as might be just and equitable.
    •The obligation and trust deed were exhibited with the bill.
    Johnson answered, that he was willing to act in the execution of the trust, under the direction of the court.
    The answer of Nicholas admitted the execution of the trust deed, but averrfed that the foundation of the plaintiff’s whole claim was usurious, and that the contract and deed were void in law : insisting on the said usury as avoiding the contract and security, in the same manner as if the same were specially pleaded. And then respondent proceeded to give what he declared to be a true statement of the origin and progress of the plaintiff’s demand; which was as follows:
    Respondent had several times borrowed money on interest, in the county of Augusta, and in the winter of 1812 he applied to E. Stribling, to know if he could negotiate a loan for him, as their mutual friend J. Kinney had frequently done, at a rate of interest from 10 to 12 per cent, per an-num. After some time, Stribling informed him by letter, that he could obtain the sum of 5000 dollars at the rate of 10 per cent, for one or two years. In a subsequent letter, respondent was informed by Stribling that the negotiation was completed, and that he had received the money, which should be paid *'at any time to respondent’s order; but if convenient to delay drawing:, he would himself bring the money over in about 15 days. No intimation was given that a contract for stock was expected, or any scruple felt at receiving usurious interest. On the contrary, being informed the money was received and ready to be paid, without a word being said about a purchase of stock, respondent could only consider it as a loan of money. Accordingly, Stribling and the plaintiff came to respondent’s house about the first of July, when respondent was informed (for the first time, as he believes) that it was wished he should engage to pay bank stock and bank dividends too; which he positively refused to do, as it would subject him to pay a double premium for the money, inasmuch as the price of the stock might be greatly above par, and the dividends would certainly be above six per cent. It was then agreed that the engagement should be for stock, with such an in-dorsement upon the bond (marked A. and exhibited with this answer) as was actually made thereon : the plaintiff frequently declaring that all he wanted was to be secure of the dividends, which he believed would give him at least ten per cent, for his money, which would satisfy him. Respondent always considered the indorsement upon the bond as making it a money debt, but that the loan was to be concealed under cover of a pretended sale of stock; with which view arid no other, as respondent supposed, the bond was drawn up. The indorsement binds respondent to discharge the obligation by paying money, and not stock. The bond itself obliged him to pay, as interest on the loan, whatever dividend the bank might declare semiannually on the stock pretended to be sold: which dividends, as appears by an account rendered by Smith (marked B. and exhibited with this answer) amounted generally to ten per cent., and never to so little as six percent. Here, then, was money advanced to be
    repaid in money, and more than *legal interest paid for its use. If this bond was not originally to secure the payment of a sum of money, as respondent understood it was, there can be no question that when it became due, it was to be discharged by the payment of 5000 dollars in money, and not 50 shares of bank stock, so that all which was paid above six per cent, interest, after the bond became due, was usurious. Thus things continued, respondent paying nearly double rate of interest, until July 1816, when, by an alteration of the original contract, the usury became still more enormous. For, by an agreement of the 12th of July 1816 (marked C. and exhibited with this answer) respondent bound himself in the penalty of 30,000 dollars, to transfer 150 shares in the bank of the United States (then about to bo organized) by the 1st of January 1818. At the time of executing this contract, to the best of respondent’s recollection, the 5000 dollars due on the original bond was considered as money to be converted into United States bank stock at 80 dollars per share, and respondent received so much more money as, including the 5000 dollars at 80 dollars per share, amounted to 150 shares of the stock. To complete the ruinous extortion of this contract, it was further modified on the 2d of January 1818 (see exhibit marked D.) so as to bind respondent to pay Smith, on the 1st of July 1818, the market price of said stock on that day, or 150 dollars per share, and the dividends declared in the meanwhile, as the plaintiff should prefer; he chose the latter alternative; and accordingly', on the 1st of July 1818 a settlement was made; respondent having paid, or binding himself to pay, for the 12,000 dollars, which was all he ever received from Smith, from July 1812, when the loan was first contracted, till July 1818, the enormous sum of 26,068 dollars 50 cents. In February 1819, respondent redeemed his paper due to Smith, gave his note for 2000 dollars at 60 days, which has since been paid, and an additional x'note for 10,000 dollars, still held by Smith,
    which was to have been paid in stock. As security for respondent’s compliance with his engagement of July 1816 to transfer stock, he executed a deed of trust (marked E. and exhibited w'ith this answer). — Respondent, having answered, prays that plaintiff’s bill may be dismissed &c.
    This answer was duly sworn to by the respondent.
    With the answer were exhibited two letters from Stribling to Nicholas, bearing date the 6th of April 1812 and the 1st of June 1812, respectively. The substance of these letters is correctly stated in the answer. They were, however, objected to by the plaintiff, as not being legal evidence against him, and the chancellor sustained the objection.
    The documents referred to in the answer as exhibits marked A. B. C. D. and E. were the following.
    Exhibit A., was a writing signed and sealed by Nicholas and Stribling, by which, in consideration of 5000 dollars expressed to be paid to them by Smith, they bargained and sold to him 50 shares of stock in the bank of Virginia, to be delivered and transferred to him, his heiis or assigns, on or before the first day of July 1813; and in the meantime Nicholas and Stribling to pay over to Smith whatever dividends the same bank might divide on said stock from the date of the instrument, halfyearly, until the time when said stock should be regularly transferred to him. The date of this instrument is the 1st of July 1812. A memorandum and several receipts were indorsed, as follows: “Memo. It is agreed between the undersigned, to avoid a loss on either side, which would be the consequence of a considerable rise or fall in the price of the stock within mentioned, that the price of the said stock shall be rated at 100 dollars per share, and that the payment of the within obligation is to be received in money at that rate. Witness our hands and seals the day within mentioned.” *(Signed and sealed by Smith and Nicholas.) “1813, Ap’l 22d. Received int. on the within up to the 1st of January last. — Dec’r 23d. Received int. on the within up to the 1st of July last. —Received of colo. Nicholas the int. on the •within in full up to the 1st of July 1814. — • Received interest up to the 1st of July 1815. — Received int. up to the 1st of January 1816.” Signed by Smith.
    "Exhibit B. was a letter enclosing an account from Smith to Nicholas, in the following terms: “Staunton, December26th 1815. D’r sir, You will herewith find a statement made of the balance due me on your small notes, including the dividend of July last, which money I will thank you to send by C. B. Penn esqr.” (Signed) “J. Smith.”
    “Wilson G. Nicholas esqr. to J. Smith Dr.
    1813. Dec, 13. To your note with int. from 1 July 1813, for.$ 850.00 int. on same from 1 July 1813 till Aug°tl815. 31.25 - 281.25
    To your note due Jan’y 1,1814, for.. 250.00 int. on same till 1 Aug"t 1814... . 23.75
    To your note due 1 Jan’y 1815, for... 650.00 int. on same till 1 Aug’t 1815. 42.25 - 692.25
    To your note due 1 Jan’y 1815, for . 212.50 i nl. on same till 1 Aug’t 1815. 13.75 - 226.25
    To the hank dividend on 1 July 1815 on 50 shares a 5 pr. cent. 250.00 250.00
    $ 1723.50
    1815. July 21. By this sum paid my dr’ft to J. Brown jr. 500.00 Aug-'t 1. By do. do. 1000.00 - 1500.00
    Due J. Smith on 1 Aug’t 1815. $ 223.50."
    receipt for the balance of 223 dollars 50 cents, signed by Charles B. Penn, is subscribed to the account.
    Exhibit C. was an obligation dated the 12th of July 1816, executed by Nicholas to Smith, by which Nicholas bound himself in the penalty of 30,000 dollars, with condition that if he should, on or before the 1st of January 1818, assign and transfer to Smith 150 shares of stock of the bank of the United States, then the obligation to be void. On this instrument was the following indorsement: “15th July 1818. Received the int. on the within up to the first instant.” (Signed) “J. Smith.”
    Exhibit D. was in the following words: I “have agreed to pay mr. Joseph Smith on the first day of July next, for the stock of the bank of the United States that I owe 'him, the market price of that stock on that day, or 150 dollars a share, at his option, with the dividend that may be declared on that day. Witness my hand and seal the 2d day of January 1818.” (Signed and sealed by W. C. Nicholas.) This paper was objected to by the plaintiff as evidence there being no proof that it was ever executed or delivered to him, or that he ever had any knowledge of it: and the chancellor sustained the objection.
    Exhibit E. was an indenture dated the 12th of July 1816, by which Nicholas conveyed to Johnson the same property which was subsequently conveyed by the indenture of the 1st February 1819; upon trust, for the purpose of securing the faithful performance of the contract specified in exhibit C.
    In the progress of the cause, the chancellor ordered that an issue be made up between the parties, and tried at the bar of the superiour court of law for Augusta county, for the purpose of ascertaining whether the contract of the 1st of February 1819, between Smith and Nicholas, was usurious or not. Two trials were accordingly had; but the jury being unable to agree upon a verdict at either trial, the issue was set aside by consent of the parties.
    *Stribling was three times examined as a witness in the cause. First, his deposition was taken by the plaintiff, de bene esse, before Nicholas had put in his answer to the bill; and he was twice examined before the jury, on the trial of the issue in the superiour court of law. He deposed, that ■ being requested by Nicholas, early in 1812, to negotiate for him a loan of money in Augusta, and hearing of a fund of 5000 dollars in the hands of Smith, he applied for it in behalf of Nicholas, assuring Smith that ten per cent, interest and abundant security would be given ; to which Smith replied, that he never had loaned money at more than six per cent, interest, and never would, and that he had determined to invest this money in bank stock, for the benefit of his child, by whose mother, then latelj' dead, the money had come to him. The witness then suggested to him a plan, by which he thought his views would be answered, and at the same time Nicholas be accommodated; which was, to let Nicholas have the money for the time he wished it, and take his obligation for the delivery of bank stock at the expiration of that time, and meanwhile to receive as interest whatever the bank might divide on such amount of stock. To this the plaintiff assented; and sometime afterwards accompanied the witness to the residence of Nicholas, to consummate the business. In the office of Nicholas, witness drew the contract of the 1st of July 1812, which was then executed by Nicholas and himself. In his first deposition, the witness states that he does not remember any thing being said, before this time, about an indorsement; that he thinks he himself suggested to the parties the propriety of some indorsement, to prevent loss to either in the case of a great rise or fall in the price of stock; and on their agreeing to the suggestion, the witness wrote the indorsement which appears on the contract. He considered the contract as a contract for stock, and to be discharged in stock, except in the event that stock should .get much *above or much below the par; and he repeats, that according to his recollection, the contract for the sale of the stock had been made without any condition, and reduced to writing in the manner in which it appears in the body of the written agreement, before any proposition was made to provide for the payment of money instead of stock, in case of a rise or fall. But in his examinations before the jury, he states, that since his deposition was taken, Nicholas had shewn him the letter of the 1st of June 1812, written by the witness to Nicholas, in the following terms : “My dear sir, I am happy to have it in my power to inform you that mr. Smith has at last arrived, and I have brought my negotiation with him to a very favourable close. This morning I received of him the whole sum you wanted (5000 dollars) which I hold subject to your order. If you do not find it convenient or necessary to draw for the i money before the 15th instant, it is more than probable I can take the money to you.” This letter had satisfied him that he had been mistaken in one statement in his deposition; and he was now convinced that at the time Smith and himself went to the house of Nicholas, the contract was not in the imperfect state represented by the deposition, but had been concluded, before that time, between the witness and Smith, or at least the terms of it had been so well understood between them, that the money was completely at the witness’s command, and would have been paid to the order of Nicholas if he had drawn for it: and the contract so made by the witness, on behalf of Nicholas, with Smith, was a contract for the purchase and sale of stock, with the privilege of paying- it in money, rating- the stock at par, if there should be a great rise or fall in its value; the dividends to be paid to Smith in lieu of interest. The terms of this contract were designed and supposed to be expressed in the written agreement and the indorsement i thereon, which the witness drew, as before mentioned, *at the house of Nicholas. (When Stribling made this correction of his former testimony, he was most laboriously crossexamined as to the nature of the conviction, to which h'e declared that his mind had been brought, respecting the real terms of the contract. In the course of this crossexamination, he appeared to be very much embarrassed, and to have great difficulty in distinguishing between his present recollection of facts, and his present opinion or impression, founded on his own belief that he could not have written the letter of the 1st of June 1812, unless the terms of the contract, as reduced to writing at the house of Nicholas, had been previously understood and settled between Smith and himself. Yet both the parties to the suit admitted on the record, that he was very intelligent, and of unimpeachable veracity.) At the time of making the contract and of reducing it to writing, the witness himself believed, and he is satisfied that both Smith and Nicholas believed, there was nothing unlawful either in the agreement for the sale of stock, or in the modification of that agreement which was made by the indorsement thereupon : Smith appearing to be satisfied if he could secure to himself the receipt of bank dividends, whatever they might be, for the use of his money. At this time the impression of the witness was, and he believes it was the general impression, that Nicholas had no bank stock. “Witness had no personal knowledge of the dealings between the parties since the contract of 1812, but had understood from Smith, since the failure of Nicholas (which took place in August 1819) that the said contract had been cancelled in some arrangement for United States bank stock: he thinks Smith informed him that he had purchased of Nicholas about ISO shares of that stock, at 80 dollars per share, the stock to be delivered some time after-wards, and the money being paid down. Witness understood from Smith that he did not receive the stock, but that the debt, at the time *of the settlement, was made a money debt at the then market price of stock, which was somewhere about ISO dollars per share. Witness did not understand from Smith what portion of the money' he had received, but that he had received some money'on account of that transaction. He further understood that the contract for United States bank stock, above mentioned, was made before the subscriptions for said stock had been closed. In July 1816, about the date of that contract, witness was in Richmond, and the books of subscription for stock of the United States bank were then open. Smith himself visited Richmond about that time, and the witness understood from him that his object in making that visit was to subscribe for stock in the bank of the United States. Witness had also understood from the plain Liff, at a subsequent period, that the bond in controversy in this suit grew out of the transaction with Nicholas ' respecting the ISO shares of United States bank stock.
    Stribling and several other witnesses were also examined as to their knowledge of the pecuniary affairs of Nicholas. The general result of the testimony on this subject was, that for many years previous to 1819, Nicholas had been much involved in debt; that he had frequent and urgent occasions for money to a considerable extent; that in Richmond, in the early part of 1819, the general impression in regard to his affairs was unfavourable; that about the time of his failure, the report was general that he had been much embarrassed for very many years, and had been much injured by the great sacrifices he had for a long time been compelled to make, in order to raise money to sustain his credit; and that he himself, after his failure, estimated his debts at about 298,000 dollars.
    It further appeared by the testimony, that at the time of opening the books of subscription for the stock of the United States bank, in July 1816, much diversity of opinion existed among men of business, on the question *whether or no the investment in that stock would be safe and profitable; but the prevailing opinion was, that the dividends would be about six per centum, and the stock about par. In Richmond, a considerable amount of the stock was subscribed for; the terms of subscription being the payment of 100 dollars per share, in specie and debt of the United States, or wholly in specie, at three instalments, within 12 months from the date of subscription. The price of the stock in August and September 1817 was 1S6 dollars per share; in January 1818, ISO dollars; in July 1818, 130 dollars; in January 1819, 105 dollars; in February and July 1819, 100 dollars. The dividends were, in July 1817, 2 dollars 60 cents per share; in January 1818, 4 dollars; in July 1818, 3 dollars SO cents.
    It was proved that the dividends on stock of the bank of Virginia were, in January and July 1807, and January 1808, 4 dollars per share; in July 1808, 3 dollars SO cents; in January and July 1809, 3 dollars; in January 1810, 4 dollars; in July 1810 and January 1811, 5 dollars; in July 1811, January and July 1812, and January 1813, 6 dollars; in July 1813 and January 1814, 5 dollars; in July 1814, 13 dollars; in January 1815, 4 dollars 25 cents; in July 1815 and January 1816, 5 dollars; in July 1816 and Jánuary 1817, 3 dollars 25 cents; and in July 1817, 5 dollars.
    In December 1829, the cause was heard; and the chancellor, being of opinion that the transactions between Smith and Nicholas were usurious, dismissed the bill with costs. From which decree Smith appealed to this court.
    Johnson, for the appellant,
    premised, that this being a case in which usury was relied upon to defeat the plaintiff’s whole claim, the defendant occupied the same ground as if he were defendant at law. The usury must be specially and distinctly detailed, *and must moreover be proved strictly as alleged. Crenshaw’s adm’r v. Clark et al., 5 Leigh 65. And then, he said, there was no defence of usury sufficiently made in the answer; for there was only a general allegation of usury, followed by a specification of facts, and therefore the general allegation could at most only have the effect to point the specific facts to that defence: and taking every one of the facts stated in the answer, as strictly true, they did not amount to usury. For, as to the contract of 1812 (waiving the question whether the several transactions detailed in the answer were connected or no) the substance and amount of the allegations was simply, that the contract was, under cover of a sale of stock, a real contract to borrow money, and pay bank dividends in lieu of interest. There was no averment in the' answer, that the dividends exceeded, and were known to the parties to exceed, the legal rate of interest; no averment that the dividends were referred to as the measure of usurious interest upon the loan. Then, the naked question was presented, whether the loan of money, to receive bank dividends in lieu of interest, was usurious. And he contended, that there was no sufficient authority for the proposition that a party who reserved, upon a loan of money, that which might, in the course of events, be worth more or be worth less than legal interest, was guilty of usury. The only adjudged case to that effect was Roberts v. Tre-mayne, Cro. Jac. 507, which was in direct opposition to the subsequent case of Grant v. Gordon, Com. Rep. 583. And though the principle stated by justice Doderidge in Roberts v. Tremayne, had been frequently recognized in other cases as good law, such recognitions were nothing more than the dicta of the several judges, wholly extrajudicial, and unnecessary to the decision of any point before the court. All the cases in which it was supposed that a contingent reservation, of that which might peradventure prove of greater value than *legal interest, had been held to infect the contract with usury, were in fact cases in which legal interest, or its equivalent, was to be certainly paid, and a contingent advantage was stipulated for in addition; as where the lender reserved legal interest, and a share in the profits of a trade, this was decided to be usury, whether there was any profit on the trade or not.
    Upon the proofs in the cause, he said, the allegations of the answer as to the contract of 1812 were not sustained. The proof of usury should be so clear and satisfactory as to exclude every reasonable doubt. Green-how v. Harris, 6 Munf. 484; Crenshaw’s, adm’r v. Clark et al,, 5 Leigh 69; Grigsby v. Weaver, Id. 197. Stribling, in his first deposition (to which alone the court should look for the real circumstances of the contract) states expressly that the original contract was for the sale and purchase of bank stock, and that the indorsement was. made subsequently to the completion of that original contract; and his whole evidence proves that neither the sale of the stock, nor the modification by which the stock was made payable in money, was designed as a contrivance for securing a usurious premium on the money advanced. Taking the only definitive and binding contract between the parties to be that evidenced by the bond and indorsement, there was nothing whatever in the proofs, to shew that the dividends were of greater value than legal interest on the money; nothing from which the court could properly infer that the chance of the dividends, exceeding six per centum, connected with the chance of their being less, was worth more than the certain reservation of legal interest.
    Then, if there was no usury in the contract of 1812, he contended that there was nothing to impeach the subsequent transactions. The contract of 1816 was nowise usurious or oppressive. All that Smith, in January 1818, was authorized to claim, was only the value of the stock; and what that was, does not appear.
    *As to the contract of 1818, there was no averment or proof to connect it with that which forms the subject of the present controversy; and for the want of proof, it was properly excluded by the chancellor.
    Leigh and Stanard, for the appellees,
    said, that as to the proposition that where a defendant in equity relies on the defence of usury, he stands in exactly the same situation as if he made such defence at law, — if it meant only, that he was bound to give a distinct account of the particulars of the transaction wherein usury was alleged to consist; that the facts so stated must amount to usury; and that the onus probandi rests on the defendant; — that was not disputed. But if it meant that the defendant was bound to make the defence by plea, with all the formal strictness of a, plea of usury at law, or by answer as strictly formal as the plea, there was no authority for the doctrine. The case of Crenshaw’s, adm’r v. C'ark et al. did not sustain it. It would surely be sufficient, if the answer should state such facts as, if found in a special verdict, would be held by the court to constitute usury, — facts, upon the mere statement of which, res ipsa loquitur; even though a corrupt agreement be not charged in technical form and language. Gibson v. Fristoe &c., 1 Call 63, 73. The proposition of the appellant’s counsel proceeded on the analogy of an action at law upon a specialty, in which usury was required to be strictly pleaded,and exactly proved; but why assimilate the present case to such an action, rather than adopt the analogy of the actions of ejectment and detinue, where usury was allowed to be given in evidence without pleading it at all? They then proceeded to a minute examination of the answer of Nicholas, and contended that the defence of usury was clearly and sufficiently made in respect to all the contracts there detailed. The contract of 1812, they said, taking it, upon the answer and proofs in the cause (between which there was the most perfect agreement) as *a contract to lend 5000 dollars, and to receive, in lieu of interest, bank dividends which might or might not exceed legal interest, the hazard being supposed real and not merely colourable, — a view of the transaction certainly the most favourable to the appellant, — was still directly within the principle of Roberts v. Tremayne, and usurious upon that authority. For here, none of the principal was hazarded; at most, only a part of the interest was in risque, since it was hardly possible there would be no dividends at all. This hazard, however, was merely colourable; for, to ascertain the real design of the parties in reserving dividends in lien of interest, the court will look at the state of facts at the time, known to and anticipated by them both. They both expected that the dividends would yield ten per cent. But the authority of Roberts v. Tremayne is questioned. That case has been approved over and over again; by lord Hardwicke, in Chesterfield v. Janssen, 1 Atk. 350, — by De Grey, chief justice, in Murray v. Harding, 2 W. Black. 863, — and in the cases of White &c. v. Wright, 3 Barn. & Cres. 273; 10 Eng, Com. Law Rep. 75, and Lloyd v. Scott, 4 Peters 205. They referred to the cases of Browne v. O’Dea, 1 Sch. & Lef. 115; Drew v. Power, Id. 182; Molloy v. Irwin, Id. 310; Gubbins v. Creed, 2 Id. 218, and Webb v. Rooke, 2 Id. 661, in which it was determined that the taking a lease, though at a fair value, was usurious, if the contract of lease were connected with a loan of money, or the forbearance of a debt. As to the contract of 1816, that was a purchase of stock by Smith, the creditor, from Nicholas, the debtor, at an inadequate price; and there was no doubt, upon a view of the situation of the parties, and the various circumstances disclosed by the evidence, that it was connected with the contract of 1812, and in fact a. continuation of that contract, under a different form. The next contract, that of January 1818, was unequivocally usurious; for Smith was certain to get the whole ‘amount due him, and was, in addition to have the benefit of a rise in the market price of stock, without being subject to any risque of loss by a fall in the price, since the contract, in terms, gave him the option of taking the market price of the stock, or 150 dollars a share; and meanwhile he was to have the dividends, which it was almost certain would exceed six per cent. White &c, v. Wright, 3 Barn. & Cres. 273; 10 Eng. Com. Law Rep. 75; Barnard v. Young, 17 Ves. 44. The connection of the contract now in controversy with those stated in the answer was fully established by the testimony of Stribling.
    Johnson, in reply,
    referred to the opinions of judges Coalter and Brooke in the case of Taylor v. Bruce, Gilm. 66, 67, 76, as. to the strictness of proof required to sustain the defence of usury in equity. And on the question whether there was usury in the contract of 1812, he said, that contract, as it must be understood from a combined view of the answer and the proofs, was a contract for the purchase of stock at par, made; perfect at first, and then modified by can-celling so much of it as required payment of the principal in stock, and requiring that payment to be in money; leaving only the dividends to be paid as originally contracted. This was proved by the form of the contract, as well as by the evidence of Striblirig; and this construction was required by the legal principle that where a contract admits of two interpretations, one usurious and the other not, the latter should be preferred. Archibald v. Thomas, 3 Cowen 284. If this were a stock contract, it was not liable to the imputation of usury. Greenhow v. Harris, 6 Munf. 472, 483, 484; Taylor v. Bruce, Gilm. 42; Whitworth v. Adams, 5 Rand. 333; Steptoe’s adm’rs v. Harvey’s ex’ors, lately decided in this court.' And the circumstance that the contract followed, or was connected witn, a negotiation for a loan, did not change its “'character. Tate v. Wel-lings, 3 T. R. 531; Pike v. Ledwell &c., 5 Esp. N. P. Cas. 164 ; Ord on Usury 74 ; Murray v. Harding, 2 W. Black. 863; Jones v. Hubbard, 6 Call 211. Ar.d even taking it as a contract for the loan of money, reserving bank dividends in lieu of interest, he said, it was still not usurious. He repeated, that the dictum of justice Doderidge in Roberts v. Tremayne had not been sustained by a single adjudged case, though he admitted that it had been quoted with approbation by many judges and compilers ; and, referring to the several cases cited by the counsel for the appellees, he insisted that the recognition of the rule, in every one of those cases, was a mere obiter dictum, having no manner of connection with the point in issue before the court. But, he said, it was not necessary to controvert the authority of Roberts v. Tre-mayne, or the opinion of justice Doderidge. The case here was not the case of an ascertained sum reserved as interest, though upon a contingency, but was the reservation of that which, in its nature, was wholly uncertain,. — which might be worth 20 per cent, or might be worth nothing. It was precisely analogous to the reservation of interest, in the profits of a trade, the profits of land, the profits of slaves, or in commodities, such as wheat, corn, or horses. No case could be found in which such a reservation was held usurious, simply because it turned out to be of greater value than lawful interest. The cases of White &c. v. Wright, Barnard v. Young, and others of that class, were all cases of a. reservation of 5 per cent, certain, and of something uncertain or contingent over and above, such as contingent profits of trade. The reservation of interest simply in profits or commodities, must be usurious or not, according to the standard of value at the time when the reservation was made. Thus, in Robertson v. Campbell &c., 2 Call 421, where the profits of slaves were reserved as interest upon a loan, the value was manifestly estimated at the time of the reservation, *and was enormous usury, — £52. a year on £220. and in Gibson v. Rristoe &c., 1 Call 63, and Stribling v. Bank of the Valley, S Rand. 132, there was a profitable bargain supefadded to legal interest for the forbearance. Usury is defined, in Sheppard’s Touchstone p. 62, to be “such a contract as whereupon the lender is to have, in money or money’s worth, for the loan of the thing, above the principal, more than after the rate of £8. for the £100. by the year.” Keeping in view this definition, the exact character and reason of the-doctrine respecting the risque of interest will be found to be this — Where the principal debt is in hazard, and 'that hazard is not merely colourable, but real and bona fide, the transaction is taken out of the statute, because it is in truth not a loan, but a species of wager. But where the risque applies to the interest only, the transaction is a loan, because the money advanced is to be returned at all events; and the hazard, though real and bona fide, does not necessarily prevent the reservation from being of value more than equal to six per cent, per annum. The hazard, in such a case, is to be regarded only as it affects the value of the thing reserved. The estimate of the hazard necessarily enters into the estimate of value, in all uncertain reservations. If, then, it be necessary to estimate the value of the thing reserved, there is nothing in the record here, to shew that the value of the dividends, at the time of the reservation, was more than six per cent, per an-num on the money lent. The answer does not aver it; it avers only what Smith said: and the proof does not sustain the answer in that respect. The only proof anywise relating to the subject is the actual amount of the dividends before and after the reservation.
    
      
       Chancery Practice — Allegations and Proof Must Agree. — in a court of equity, as well as in a court of law, the allegations and proof must agree. A recovery will not be allowed upon a case, although proved, which differs essentially from that alleged in the bill. Wren v. Moncure, 95 Va. 375, 28 S. E. Rep. 588, citing the principal case, Brown v. Toell, 5 Rand. 543, Thompson v. Jackson, 3 Rand. 504. Hunter v. Jett, 4 Rand. 104, and Potomac M. Co. v. Evans, 84 Va. 717, 6 S. E. Rep. 2.
    
    
      
       Usury. — See generally, monographic note on ‘‘Usury” appended to Coffman v. Miller, 26 Gratt. 698.
      §Same — Proof of Necessary. — To the point that strong and clear proof should be required to convict a man of usury the principal case was cited in foot-note to Crenshaw v. Clark, 5 Leigh 65; Brockenbrough v. Spindle, 17 Gratt. 32.
    
    
      
       Same — What Constitutes — Interest at Hazard. — gee the principal case cited with approval in Boulware v. Newton, 18 Gratt. 719.
    
    
      
       Reported 7 Leiffh 501.
    
   TUCKER, P.

The bill in this case is filed for the purpose of carrying into effect a' deed of trust for the security of a debt from W. C. Nicholas to the appellant. *The defence set up is, that the transaction was in violation of the statute against usury, and that the security is therefore .void; and if this defence is sustained, the appellant was properly dismissed from the forum of the chancery court.

Before we go into an examination of the facts in this case, it may not be amiss to settle the question which has been so zealously argued as to the authority of the case of Roberts v. Tremayne, Cro. Jac. 507. The vigorous assault which has been made upon it, sufficiently evinces the conviction even of the counsel for the appellant, that its principles, if established, bear hard against his client; and a full examination of the case has satisfied me that his sagacity has not on this occasion deserted him.

The case of Roberts v. Tremayne, was decided in the reign of James 1, more than 200 years ago, by justice Doderidge and his associates, and the principles now in controversy were laid down by that distinguished judge. He says, “If I lend £100. to have .£120. at the year’s end upon a casualty, if the casualty goes to the interest only, and not to the principal, it is usury, for he is sure to have the principal again, come what will come: but if the interest and principal were both in hazard, it is not then usury.” These positions are in conformitj' with the cotemporary adjudications, and are recognized and relied on, as unquestioned law, in subsequent cases, and by every elementary writer. In Sharpley v. Hurrel, Cro. Jac. 208, the case was adjudged not usury, upon the ground that the principal as well as the interest was in hazard. In Soome v. Gleen, 1 Sid. 27, 1 Levinz. 54, lord chief justice Bridgman took the same distinction, between a bargain in which principal and interest are both put at hazard, which is the ordinary case of a bottomry bond, and the case where the principal is not in danger, but is to be returned at all events. It is on this distinction, indeed, that the whole system of bottomry *and respondentia bonds rests. It is not merely for the convenience of trade that they have been sustained, but because of the risque which the lender runs of losing both principal and interest: for if the risque goes only to the interest or premium, and not to the principal also, though a real and substantial risque be inserted, it is a contract of usury, and void. Park on Insurance 416, 2 Ves. 148. Again, in Mastin v. Abdee, 1 Shower 8, it is decided that if the principal and interest be in hazard, it is no usury; and from the same case in Carthew 67 (under the name of Mason v. Abdy) the defence appears to have rested upon the ground that the principal was in danger, but the hazard being deemed colourable, it was declared usurious. The case is also reported in 3 Salk. 390, and the distinction of justice Doderidge is plainly stated there. Coming down to a later period, we find the opinions of justice Doderidge on this particular point, recognized in Chesterfield v. Janssen, 1 Atk. 301, 2 Ves. 125, by justice Burnett and lord Hardwicke, and the same doctrine, laid down in Mason v. Abdy, is set forth as the established law. So too, in Murray v. Harding, 2 Black. Rep. 859, and 3 Wilson 395, the opinion of justice Doderidge is quoted at large as the law of the subject by De Grey, chief justice; and Blackstone, justice, in like manner proceeds upon the ground that the principal must be put in hazard. And in our own courts, in the case of Gibson v. Fristoe & others, 1 Call 62, 73, judge Roane, in laying down certain principles which he holds to be clearly warranted by law, announces this doctrine among others, “that where the intention is to get more than legal interest, it is usury, unless the sum itself be put in risque.” And judge Pendleton says that taking more than legal interest is usury; “but if the principal or any considerable part be put in risque, it is not usury, because the excess in the premium is a consideration for that risque.” In 4 Peters 226, the same doctrines are maintained. *We find them also recognized by the elemen-

tary writers generally. See 1 Fonb. 198; Ord. 22; Comyn 33, 34; 1 Esp. N. P. 177; 2 Blac. Com. 461.

After such an uninterrupted acquiescence in the principles laid down in Roberts v. Tremayne, it would at this day be without excuse, to overrule them, and to set up a new interpretation of the statute. But in truth, if the question were open, I should not hesitate to adopt the construction, that where the interest only is at hazard, the statute is infringed by a contingent contract for more than legal interest. It was certainly going far enough, in the construction of statutes which declared that “none should take for a loan above 8 per cent.” to say that where a greater interest was reserved, the excess should be taken to be a compensation for the risque, and not for the loan, provided the principal were put in hazard. To have gone farther, would indeed have made the statute vain. If, upon a contingency which goes only to the interest, I do take more than legal interest, my case is within the very letter of the statute, which contains no exceptions in favour of usury contingently reserved. By what warrant then can the court make the exception? There is not so plausible area-son for taking such a case out of the operation of the act, as there is in cases where the principal is put at risque. Many of these contracts of hazard are recognized by the law as salutary _ and convenient, such as insurances upon lives, marine insurances, bottomry and respondentia bonds, and such like: cases in which it is obvious that the borrowing and lending of money is not the real object of the parties, and which therefore do not come within the statute. Eor, if I advance ¿'100. to a ship owner to enable him to carry on a voyage, upon terms to receive ¿ISO. if the ship returns in six months, but if she is lost, to receive nothing; here it is obvious that the contract operates as an insurance of the ^100. advanced, and not as a mere loan. But if I advance *,¿100. on terms to receive ^150. if she returns safely, and to receive ^100. even if she be lost; here there is nothing insured to the ship owner. The transaction is an advance of money to be returned at all events, and so is strictly a loan. And it is a loan by which, if the ship returns in safety, I am to gain the usurious interest of ^50. for 6 months loan of ^100. It is therefore strictly within the statute. Upon the whole, then, I take the principle stated by justice Dode-ridge in Roberts v. Tremayne, to be incontrovertible.

Another question has been presented, of which it may be as well to dispose before we proceed to examine the facts in this case. It refers to the pleadings in cases of usury, and has grown out of some remarks of my own in the case of Crenshaw’s adm’r v. Clark et al., 5 Leigh 69. I observed that “where the defence goes not merely to absolve the debtor from usurious gain, but to vacate the contract and to annihilate the debt, — to take from the usurer his just principal, and put it in the coffers of the debtor to whom it does not fairly belong, — it is right, upon every principle of good sense and cf law, that the fact should be clearly proved. At law, this is certainly the case. If usury be pleaded to a bond, and established, the bond is vacated, and the usurer loses his debt. Therefore the usury is required to be set forth precisely in the plea, and it must be proved as set forth. The effect of this is, that if the party fails in his proof, or cannot establish the usury without resort to a court of chancery, he will be compelled, in receiving the aid of that tribunal, to pay up the principal which is justly due; and this is precisely the result that justice requires; for while we look with aversion upon the usurer who demands 20 per cent, of a needy borrower, the moral sense revolts not less at the needy borrower who will pocket 80 per cent, of the usurer’s money.” These principles, I find, have led the court, of exchequer in England to reject the practice *of setting aside judgments on the- ground oí usury, which prevails in the king’s bench. . “The regular process of a court of equity,” says chief baron Eyre, “is in every respect best adapted to the case. The plaintiff is entitled in conscience to the money he has advanced: if we set aside the judgment, he loses that, with the rest: a court of equity, on the other hand, decrees what is really due, and no more.” Mathews v. Lewis, 1 Anstr. 7.

Again, in Crenshaw’s adm’r v. Clark et al., it is said, “Although I can cite no case to shew that a plea of usury by a defendant in equity must be as distinctly set forth, and as clearly maintained, as in an action at law, I incline to think that such is the rule: nor is it injurious to the defendant ; for if he fails in establishing the usury, he may still, by an appeal to the conscience of the usurer, by a cross bill, relieve himself from the usurious premium. If this be so, there can be no doubt that there is no such reasonable proof in this case, as to sustain the allegation of usury, and to destroy the plaintiff’s demand even for his principal.” This was one of the. questions in the cause, the chancellor having expressly declared that the fact of usury was sufficiently proved. The opinion was not therefore extrajudicial. I admit, however, it is not authority, in its full extent; for though our lamented brother Carr expressed an entire concurrence in the opinion, his prepared opinion is not so explicit. He says, however, “This being a pretty severe penalty, it is not inflicted without strong and clear proof.” So in Grigsby v. Weaver, 5 Leigh 209, judge Brooke says, “Usury is an offence against the statute, which ought to be well proved before a party is convicted of it: I do not mean by direct proof only, but by inevitable inference, drawn from established facts.” And this, after all, is the material point; for if the fact must be clearly and strongly .proved, it follows of course that it must be distinctly set forth. There *'are no principles more firmly established than those which require the allegata and probata to correspond, and the distinct announcement of the grounds of demand or defence, by the respective parties in a cause. They are principles as applicable to courts of equity as to courts of law; and it would be truly mischievous were it otherwise. To permit a defendant, in answer to a bill of foreclosure, to set forth generally that the claim was usurious, without disclosing the facts on which the allegation rests, would be unfair, and calculated to take the plaintiff by surprise. The allegations, whether of bill or answer, ought to be so distinct and precise, as to give the adverse party notice of what he is to contest: and when so stated, they must be proved satisfactorily to the court, to entitle the party to its'decree. It would lead me too far, were I to extract the various cases which go to these points. I must content myself therefore with a general reference to them. They will be found to establish the positions, that the demand or defence must, be distinctly set forth; that evidence applying to a matter not in issue will not be regarded; and, by consequence, that a party is not to be permitted to allege one thing and prove another: See 6 Johns. Rep. 564; 1 Cowen 734; 4 Johns. Ch. Rep. 281; 1 Brown’s C. C. 94; 11 Ves. 240; 6 Munf. 42, 416; 5 Munf. 314; 3 Rand. 263, 504; 5 Rand. 543; 5 Johns. Ch. Rep. 82; 1 Rand. 249. I do not mean to say that the same technicality will be required in a de-fence by way of answer in equity, though much strictness, it would seem, prevails where the defence is by way of plea. Wortley v. Pit, 1 Ves. 164; Beames’s Pleas in Eq. 188. But I think it a fair application of the cases to the matter of usury, that the defendant who relies upon it, who is conusant of the transaction, and who, if he can prove it, can surely set it forth, should be held to a specification of the terms of the -usurious contract, either by way of plea or answer.

*It is said, however, that in ejectment at law, or in assumpsit or de-tinue, usury may be given in evidence without being pleaded. The reasons, however, are obvious. The manner in which the plaintiff’s demand in those cases is stated, is so general, that the defendant has 'no notice to bring forward that defence. In ejectment, the usurious deed is for the first time -produced upon the .trial. Until the moment it is produced, the defendant has no right to take for granted that the plaintiff rests his claim upon any such deed. He is not therefore called upon to assail it until its production, and as it is introduced without pleading, it is of necessity to be contested without pleading. And so in as-sumpsit and detinue. But there is no case of which I am aware, in which a defendant, who is sued upon a specialty at law, has been permitted to go into evidence of usury, without having specially pleaded the usury. Now the demand here, if to be governed by legal analogy, must fall within the principles applying to actions on specialties, since it rests itself expressly upon the deed of trust, as a security for money, the payment of which is required by the plaintiff.

Upon examining this case, however, I am of opinion that the answer is abundantly full, even upon the principles of Crenshaw’s adm’r v. Clark et al. And if it be true that this deed of trust has grown out of the usurious transactions, it is obvious that the amount now demanded is the usury, and that the plaintiff is seeking no portion of his principal or legal interest; so that he is not on that ground entitled to the rigorous exaction of special pleading from the defendant. I shall not waste time in examining the charge of usury as to the first contract. It is clear and distinct, and the facts set forth with ample certainty. The defendant then proceeds to say, that by the alteration of the contract in July 1816, “the usury became still more enormous;” thus distinctly charging the second contract to be usurious also, and *proceeding to set forth the facts upon which that charge rested. The answer then proceeds: “To complete the ruinous extortion of this contract, it was further modified in January 1818;” again distinctly charging,that this contract added to the ruinous extortion of those that went before. It would be sticking to the letter, to say that by “ruinous extortion,” here, usury was not distinctly intended. In all these cases, indeed, we must be satisfied that the facts are proved, and that they amount to usury; but we shall scarcely overrule the defence, if valid in law, and made out by proofs, merely because the defendant has not averred, in the forms of special pleading, that the agreement was usurious and corrupt. For even the cases which insist that the charges should be distinctly made, and be sustained by proof, admit that there is less rigour, in point of form, in courts of equity than in courts of law. 3 Rand. 263; 6 Munf. 416.

Let us then examine the several contracts. In considering the first, I look upon the agreement and the indorsement as forming parts of one and the same transaction. They are of the same date, and upon the same paper, and independent of the testimony of Stribling, they would be looked upon as one. Whatever .is indorsed upon a bond or contract, bearing equal date therewith, must be taken as part of it, until the contrary'be proved. Gordon v. Frazier &c. 2 Wash. 130. This being so, the memorandum and agreement, if Stribling’s testimony be rejected, must be taken to constitute together one contract between the parties. And if Stribling’s testimony is to be relied on, it can leave no doubt. Notwithstanding the mistake in his first deposition on this subject, he is admitted to be intelligent and of unimpeachable veracity ; and after referring to his letter, he is satisfied, and so deposes, that the arrangement, as it was afterwards finally made, was entered into and perfectly understood before the appellant and himself saw *Nicholas. That arrangement was, that Nicholas should' get the money, and pay bank dividends in lieu of interest, for 12 months; that he should give his obligation to deliver stock' at the end of 12 months, unless stock rose- or fell very much in the mean time, in which event the stock was to be paid at par, in money. When the contract was definitively made, this alternative was waived, and it was distinctly provided that the stock should be rated at par, and the amount be paid in money. But the cause about the dividends remained; so that it was in fact an advance of 5000 dollars to have 5000 dollars returned (which is a distinct loan) ; and the lender was to receive -dividends in lieu of interest, the dividends then being, and having for some years been, above 6 per cent. This is undisguised usury. Admit the hazard of reduced dividends not to have been colourable, — -it was, according to Roberts v. Tretnayne, •usurious, because the interest only was in hazard. But it was obviously colourable. What probability was there that dividends which had for j'ears been above 6 per cent, were then 12 per cent, and for two years before had ranged from 10 to 12 — what probability was there that they would sink to less than 6? There was none. It was but a contrivance to get 10 or 12 per cent, either to lull the appellant’s conscience, or to evade the law; and if so, it was usury. It is not proved indeed, in terms, that the chance of more than 6 per cent, was of the value of six per cent. — but this court sitting to determine law and fact, and to draw inferences as a jury may, must see that the •chance of dividends which, since 1806, had only’ in one year been so low as six per cent, never less than that, and only on one other occasion less than eight per cent. — which were at ten per cent, the year before, and in that very year were at twelve, — was certainly worth more than six per cent. So that it was clearly a contract of loan for above the value of six per cent, and was within the ^statute. This was the sole object of the transaction. Interest was the object, and the indorsements on the contract shew that the lender considered it as interest, though from exhibit B. it appears, that in pursuance of the contract, its amount was graduated by the amount of the dividends. Moreover, as soon as the parties had provided that the sum loaned should be returned in money, and not in stock, the lender ceased to have any interest in stock, and the dividends ■could only have been referred to as a cover for usurious interest.

We come next to the contract of 1816. By exhibit C. it appears that Nicholas became bound to Smith in July of that year, to deliver and transfer to him 150 shares of United States bank stock on the 1st of January 1818. Of the particulars of this contract we have little evidence, though that little suffices to shew its character. Upon the face of the exhibit, it appears to be merely a stock transaction, by which Nicholas, for some consideration not expressed, agrees to transfer a specific amount of stock at a future day. Now, as the price of stock is in continual fluctuation, the contingency existing in such sales has been justly held to exempt them from the imputation of usury, provided they are not used as a device to cover that offence. Ord 46, a. ; Maddock v. Rumball, 8 East 304; Pike v. Ledwell. 5 Esp. Rep. 164; Tate v. Wellings, 3 T. R. 531; Greenhow v. Harris, 6 Munf. 472; Steptoe’s adm’rs v. Harvey’s ex’ors, in this court’ during the last year. But if the transaction is only colourable, or is a mere cover for usury, the form of the contract will not protect it. This is admitted in all the cases before cited. Thus in Tate v- Wellings, where the defendant was to replace the stock sold for his use, at a future day, but if it were not then replaced, he was to refund in money, and in the mean time to pay such interest as the stock would have produced, lord Kenyon left it to the jury to say whether it *was a bona fide loan of stock to be replaced, or was intended to be a loan of money, and the device a mere colour for reserving more than legal interest. Let us then look to the facts in this case, and see its real character. Was it intended as a bona fide stock purchase, or was it, notwithstanding its form, a device to cover the forbearance of the debt of 5000 dollars, and the loan of a further sum Of 7000 dollars, for more than legal interest? I think it was clearly the latter. The facts are, that Nicholas was needy and hard pressed: he was in the gripe of Smith his creditor: he was already fettered by a cpntract on which, for four years, he had been paying ten per cent, interest: the transactions between them had already been usurious, and thus gave strength to the suspicion that their future dealings would be of the same complexion: Nicholas had not a cent of stock, and was obviously’ attempting to relieve his present necessities by future sacrifices: the bank books were open, and stock was taken by others at par, which may therefore be fairly conceived to be its value; and Smith, instead of subscribing for it at that price, contracts with his needy debtor for the forbearance of an existing demand, and for the further advance of 7000 dollars, for the consideration of stock at 80 dollars (which was worth 100) to be transferred at a future day. Moreover, when the time comes for transferring the stock, we find that stock was not the object of the lender, unless he could make further profit by it; for he was to have the value in money, or the stock, at his option. These circumstances (though subsequent to the bargain) throw back a strong light upon its true character, and are proper evidence of what had been its real object. Ord 85. In such a transaction there are all the features which are deemed indicative of usury. Positive proof is rarely to be expected; and hence the courts have always rested upon circumstantial evidence. Thus, where the bargain originates in *a loan (1 Call 81); where the seller is an habitual usurer (2 Rand. 112); where the buyer of an article is in distress, and the price grossly inadequate (Gilm. 86) ; where the party is needy and already in the power of the lender; where the hazard is slight, and the disproportion of price so great as to afford evidence of corrupt intention, — suspicion is very reasonably converted into conviction of the illegality of the transaction. See Ord 69. It would indeed be absurd, if the mere form of a stock transaction should be a sufficient veil for such a bargain as this. Is there no inadequacy of price which can satisfy the mind that a contract to deliver, at a future day, an article of fluctuating value, is usurious? Suppose, when wheat is at a dollar, I contract with mjr needy debtor to give him further time if he will pay me interest in whe'at at SO cents, or will contract to deliver me, in 30 days, 1000 bushels at that inadequate price? Suppose, for 5 dollars per share, advanced by me, A. agrees to convey to me, in 30 days, 100 shares of Virginia bank stock, now worth 110 dollars per share; can you “wink so hard” as not to see the device? So here,'— when Smith gives 80 dollars per share for stock at that moment worth 100 dollars, and which judicious men were at that moment subscribing for, in the same city, at the par value, what could be his motive but usurious gain, and what the motive of Nicholas, but relief from present necessity, with the certainty of a ruinous sacrifice? He had not a cent of sj:ock, and did not borrow to subscribe; but the whole affair was, on his part, but a stroke of finance to raise the funds for present emergency, and on the part of Smith, to continue his unlawful gain. It is not improbable, indeed, that the 20 per cent, was taken off as the interest for the 18 months which were to elapse before the conveyance of the stock. But even this most favourable aspect of the case is usury under the statute, for the interest taken was more than 12 per *cent. per annum. It must be borne in mind, too, that Smith ran no hazard, being secured by the deed of trust (exhibit E.) so that he was certain to get either the money or stock at the end of 18 months; and the risque of its depreciation below 80 was, I think, only colourable. Upon the whole, therefore, I take this contract to have been usurious.

We come next to the contract of January 1818. At that date, stock was worth 150 dollars per share; and by the contract, Nicholas agreed to pay Smith, on the first of July, the market price of the stock on that day, or 150 dollars per share, at Smith’s option, with the dividends that might be declared thereon on that daj-. By this arrangement, Smith was secure in receiving the amount of the principal sum due, with the dividends, and took the “chance of getting more. For if stock fell, he would take the 150 dollars, and so get his principal; and if stock rose above 150 dollars, he would take the market price of stock, the excess of which above 150 dollars would be usurious gain. The case is thus precisely that of Barnard v. Young, 17 Ves. 44, 46. In that case, the lender had his option to have his principal and interest, or to have a given quantity of stock transferred to him. His principal never was at any hazard, as he was at all events sure of having that, with legal interest, and he had the chance of more if stock rose. It was said to be usurious to stipulate for that chance. And so here; Smith was to have the market price of the stock on the 1st July 1818, or 150 dollars a share, with dividends, at his option; the sum of 150 dollars per share being really the amount of the principal due him by the contract. Of course, if stock *fell, he nevertheless got the full amount due him, with interest in the shape of dividends; and if stock rose, he would get as much more than the sum due him, as the market price in July exceeded the market price in January. This chance was worth something, and whatever it was worth, was over and above his principal and interest, and so was usury. The case of White &c. v. Wright, 3 Barn. & Cres. 273; 10 Eng. Com. Law Rep. 75, is also in point. There, the lender of stock reserved to himself the dividends by way of interest (as was done here) and the option of deciding whether he would have the .stock replaced, or the sum produced by the sale of it repaid to him in money, with 5.per cent, interest. The bargain was held to be usurious. “A party,” says justice Bayley, “may lawfully lend stock, as stock, to be replaced, or he may lend the produce of it as money, or he may give the borrower the option to pay in one way or the other. But he cannot legally reserve to himself to determine, in future, which it shall be.” And Holroyd, justice, said, “If the produce of stock is lent with an agreement that it shall be returned in money, and the dividends are in the mean time reserved by way of interest, that is usurious, if the dividends amount to more than 5 per cent, on the produce of the stock. This case is still stronger, for the dividends did amount to more than 5 per cent, on the sum produced by the stock, and the lender had the further benefit of choosing, at a future time, whether the repayment should be made in stock or money.” Littledale, justice, concurred. Nothing, I think, can be more apposite than these cases.

The three contracts of 1812, 1816, and 1818, having all been usurious, and proved to have been connected, it only remains to connect them with the present demand, by referring to the testimony of Stribling, who says that Smith told him it grew out of the former transactions. If so, it is tainted with the usury that infected *them, and so the deed of trust is void. Indeed it is in this view obviously unimportant, whether all the contracts were or were not usurious. Eor as each has grown out of that which preceded it, and as this of course must be connected with them all, it follows that if any one was usurious, this deed of trust must be invalid. And even if there was any one of the transactions not usurious, it could not avail the plaintiff here, both because he has not enabled the court to separate what is sound from what is vicious, and because he cannot, as plaintiff, enforce, in whole or in part, a mortgage or other lien that is tainted with usui-y. If Nicholas indeed were plaintiff, the deed would stand as security for what is justly due, and he would be compelled, as he asks equity, to do it. 3 Rand. 12, 220; 1 Johns. Ch. Rep. 482; 4 Johns. Rep. 536, 593. But the user is plaintiff, and can have no relief in that character. His bill therefore was properly dismissed.

BROCKENBROUGH and PARKER, J., concurred.

Decree affirmed. 
      
      .Reported 7 Leigh 501.
     
      
      Note by the president. In considering this point, I take the exhibit 13. as in evidence, though objected to; for the chancellor states the indorsement to be in Smith’s handwriting. Its importance would demand that the cause should be sent back to enquire into its authenticity, if it were denied, and if the case should turn upon this contract.
     