
    Gibson v. Fristoe and Others.
    [Wednesday, Nov. 8, 1797.]
    (1 Am. Dec. 502.)
    Usury — What Constitutes. — A. being indebted by bond to B. in iiSl. 11 s. M. sterling, on the 17th day of December, 1787, assigns him C’s bond for 7802. currency, at the agreed value of 382Í. 8s. 2d. sterling ; and gives a new bond, with two sureties, for the balance of 106Z. 17s. 2a. sterling, payable in March following : this is usury.
    Same — Verdict.—in such case, it is sufficient if the verdict finds facts amounting to usury, though it does not find the corrupt agreement in technical words.
    Gibson brought an action of debt against Eristoe, R. Ralls and C. Ralls, upon a bond bearing date the 11th day of October, 1788, and given for payment of 1491. 12s. Id. specie, payable on or before the first day of March, 1789, with lawful interest on the same, from the 17th day of December, 1787. The defendants first put in the plea of payment ; which was afterwards withdrawn by consent, and thereupon the defend-63 ants, *after taking oyer of the bond, filed the following plea:
    The said defendants say, that they ought not to be charged with the said debt by virtue of the said writing obligatory, because. tney say, that on the 17th day of December, in the year of our Lord 1787, at the Parish of----, in the County of Prince William, the said defendant, John Pristoe, was indebted to the said plaintiff, by bond, in the sum of four hundred and fortjr-five pounds, eleven shillings and two pence, sterling, with interest thereon, from the first day of January, 1786, and on the said day and year aforesaid, at the Parish and County aforesaid, it was corruptly agreed between the said plaintiff and the said defendant John Pristoe, that the said plaintiff should forbear and give day for the payment thereof, until the first day of March, 1789; and that the said defendant John Pristoe, for the forbearance and giving day for payment thereof, for the time aforesaid, and in lieu of the aforesaid bond, should give and assign to the said John Gibson, a bond given by Ann Brent, George Brent and Daniel Carrol Brent, to the said John Pristoe, for six hundred pounds current money; and also sundry bonds, given by the said Ann Brent and George Brent, amounting in the whole, with interest then due, to the further sum of one hundred and eighty-seven pounds, nineteen shillings and ten pence half-penny; and that the said defendant should give his bond to the said John Gibson, for the further sum of one hundred and forty-nine pounds, twelve shillings and one penny, specie, payable on or before the said first day of March, 1789: And afterwards, to wit, on the said 17th day of December, in the year of our Lord 1787, at the Parish and County aforesaid, the said defendant John Fristoe did assign and make over the said several bonds above mentioned unto the said John Gibson, and the said writing obligatory in the declaration mentioned, was then and there sealed, and as the deed of the said defendant, then and there delivered by the said defendant unto thé said plaintiff, for the forbearance 64 and giving day for the payment *of the money due from the said John Fristoe to the said plaintiff, on the bond first above mentioned, until the said first day of March, 1789; and in lieu of the said first mentioned bond, in performance and fulfilling, and according to the form and effect of the said corrupt agreement: Which said several bonds so assigned by the said John Pristoe to the said plaintiff, together with the said writing obligatory, sealed and delivered by the said defendant to the said plaintiff, do exceed the sum which was due and owing from the said John Pristoe, unto the said plaintiff on the said first mentioned bond, with interest, at the rate of five pounds for every hundred pounds per annum, until the said first day of March, 1789. Whereby, the said writing obligatory in the said declaration above mentioned, by force of the Act of Assembly in that case made and provided, is become void in law; and this they are ready to verify; whereof, they pray judgment, if they ought to be charged with the said debt, and if the said plaintiff, his action thereof against them ought to have or maintain, &c.
    The replication was as follows: “and the said plaintiff says, that he by any thing by the said defendants above in pleading alleged, ought not to be precluded from his action aforesaid thereof against the said defendants, because he saith that the said defendants, the writing obligatory aforesaid in the declaration aforesaid mentioned, to the said plaintiff did make, seal, and as their deed deliver, for a true and just debt to the said plaintiff from the said defendant John Pristoe, without that, that it was corruptly agreed between the said plaintiff and the said defendant John Pristoe, in manner and form as the said defendants have above in pleading alleged, and this he is ready to verify: Wherefore, he prays judgment and the debt aforesaid, together with his damages by reason of the detention of that debt to be adjudged him, &c.”
    Nothing further was done towards an issue ; and the jury found the following special verdict:
    «“'We of the jury find, that the defendant John Pristoe was indebted by bond to the plaintiff on the 1st day of January, 1786, in the sum of 4451. 11s. 2d. sterling, payable in bills of exchange or in current money at the current exchange, when paid, with interest from that date. That the defendant on the 17th day of December, 1787, by agreement between the plaintiff and defendant, did make over and assign to the plaintiff sundry bonds amounting to 7801. current money, at the value of 3821. 8s. 2d. sterling, and the balance due to the plaintiff, being 1061. 17s. 2d. sterling, which at the rate of 40 per cent, exchange, amounted to 1491. 12s. Id. currency, the said defendant in pursuance of the settlement, signed by the plaintiff and referring thereto, in these words, to wit: Mr. John Fristoe, &c. gave his bond on the 11th of October, 1788, with Rawleigh Ralls and Charles Ralls, his securities for that sum, payable on the 1st day of March, 1789, and bearing interest from the 17th of December, 1787: which last-mentioned bond is the bond in the declaration mentioned. That the amount of bonds assigned by the defendant to the plaintiff and the bond given by the defendant to the plaintiff as before-mentioned, exceeded the original debt and interest thereon due from the defendant to the plaintiff, 2441. 12s. 7d. currency. That the defendant about the time of assigning the bonds, intended to remove to Kentucky; and that the plaintiff after-wards declared that the defendant should not have gone to Kentucky, without having •settled the debt. That the bonds so assigned have been fully paid Up and satisfied to the plaintiff, together with the interest due to the times of payment. That the obligors in the bonds so assigned, were at the time of the said assignments, deemed of sufficient estate and property to satisfy and discharge the same. That, at the time of the writ being served upon the defendant for the before-mentioned bond of 1491. 12s. Id. currency, the said defendant acknowledged the debt to be a just one. If, 66 *upon the whole matter the law be for the plaintiff, we find for the plaintiff the debt in the declaration mentioned, and •one penny damages; if for the defendant, then we find for the defendant.”
    The exhibit referred to in the verdict is in these words:
    Mr. John Fristoe to John Gibson. Sterling. To your bond payable the 1st of
    January ,1786,for goods sold you ¿445 11'2
    To interest from 1st January, 1786, to the 17th December, 1787, 43 14 2
    ¿489 5 4
    1787. Cr.
    Dec. 17. By bonds of George Brent, Ann Brent and Dan. C.
    Brent, assigned to me, valued
    per agreement, ¿382 8 2
    106 17 2
    Exchange at 140 per cent, to
    m ake cur. 4214 11
    ¿149 12 1
    The sum of one hundred and forty-nine pounds, twelve shillings and one penny specie, is due by a bond granted the 11th day of October, seventeen hundred and eighty-eight, by John Fristoe, Rawleigh Ralls and Charles Ralls, payable on or before the first day of March, seventeen hundred and eighty-nine, with interest from the seventeenth day of December, seventeen hundred and eighty-seven.
    John Gibson.
    There is amongst the papers filed in the cause, the bond on which the suit is brought: and a list of seven bonds given by the Brents, amounting in the whole to 7801. : six of them for 301. each, the first of which was payable in March, 1785; the second in March, 1786; the third in March, 1787; the fourth in March, 1788; the fifth in March, 1789; the sixth in March, 1790; the seventh bond was for 6001. and was likewise payable in March, 1790.
    *At the foot of this list, is the following assignment; Dumfries, seventeenth day of December, seventeen hundred and eighty-seven. This day I have assigned unto John Gibson, the above seven bonds, amounting to seven hundred and eighty pounds current money, for the sum of three hundred and eighty-two pounds eight shillings and two pence sterling, in part of a bond due by me to him, as witness my hand and seal the day and date above mentioned. The above seven bonds are all due, and no part of which is received by me, or any of Mr. John Ralls, sen’s, executors, or any person for them.
    John Fristoe, (Seal.)
    The District Court gave judgment for the defendants; and Gibson appealed to this Court.
    Washington, for the appellants.
    The question is, whether the facts stated in the special verdict amount to usury? In order to constitute usury, there must be a lending on one side, and a borrowing on the other. There must be a corrupt agreement on one side to take, and on the other to give, greater interest than the law allows. If the defendant had any relief, it was in a Court of Equity; where the unconscionable gain, if any, might have been corrected. That, however, is no question at present; but, the question is merely, whether the unreasonable profit, if it be so, was usury or not? In all these cases, the first inquiry is, if there be a loan? I admit, that if a real loan is endeavoured to be covered under any disguise whatever, it is still usury. Here was no direct loan; and the question is, if there was any indirect lending? If one goes to borrow, and the parties communicate about a loan, which at length terminates in a sale of property, at a price greatly beyond its value, it is usury; because, it is merely a scheme indirectly to avoid the statute. But, here was no borrowing,, nor any communication about a loan; it was a fair sale of property, which the one party might make, and the other purchase. The case is no more than this; Fristoe says to 68 the ^plaintiff, I have not money to pay you, but, if you will accept of property upon such terms as we can agree upon, I will discharge the debt immediately ; Gibson consents, and got a bargain : Now, although a Court of Chancery might relieve, if there were any undue advantage taken, yet the law cannot; because, there was neither a loan or a borrowing; without which there cannot be usury. [Loyd v. Williams,] 3 Wils. 261; [Floyer v. Edwards,] Cowp. 112. Which last case, not only establishes the general principle, but goes further; for there more than five per cent, was taken, and justified merely upon the custom. [Tanfield v. Finch,] Cro. Eliz. 27; [Murray v. Harding,] 2 Wm. Black. Rep. 859, 3 Wils. 390, S. C. All these cases prove the definition of usury to be, a corrupt agreement for greater interest than the law allows; and that there must be a borrowing and a lending. So that if one meant a loan, and the other not, there would be no usury: for, both minds must concur in the corrupt intention. Usury is odious, and not to be presumed; for, it occasions not only a loss, but a penalty. Therefore, it must be expressly proved.
    The question then is, if the facts in this case amount to usury? It is the case of a debtor not able to pay his debt in money, but offering to discharge it in property, and the creditor accepts the offer. I said offering property, for bonds are property; they do not in any manner differ from other property, but are every day bought and sold at market. So that if the plaintiff had not been a creditor, the purchase would have been clearly legal; and his being a creditor, does not make any difference at law. If Fristoe had given stock at a valuation, though the value of that is more easily ascertained, it would not have been usury'. And where is the difference? One is as much the subject of loan and purchase, as the other. Nothing like a loan is found in this case, whatever might have been the opinion of the jury; and I repeat it again, that, without a loan, there can be no usury. At the former argument, it was supposed that the liability of the assignor 69 might affect the case; but, I *cannot see how. For, suppose, instead of bonds, Fristoe had paid the debt with lands, and the title had afterwards been evicted, he would have been liable on his warranty, and yet that would not have turned the transaction into usury. But, the principle of that case is precisely like the other. The contrary argument goes the length of establishing, that if a debtor, not having money, is willing to discharge his debt in property, that the creditor dare not take it but at the full value; for, if he takes it at less, his conduct is corrupt, and he will be condemned for usury. So that, instead of the debtor’s being able to facilitate his struggles, he will be obliged to submit to a suit and execution. For, his creditor cannot, without danger or loss, relieve his difficulties. Therefore, taking it as a question at law, there can be no doubt | that it was not usury.
    But, even in Equity, the transaction could not be'impeached. For there was no future responsibility on Fristoe, because the obligors were able at the time of the assignment, and it is found that they have since actually paid the money. In addition to which, it appears that the transaction was in 1787; that the largest of the assigned bonds was not due until 1790; and that twelve or thirteen shillings in the pound was given for it: Which was a fair market price and more.
    Randolph, contra.
    There was a surplus for which we were entitled to a credit; as the jury have said there was an excess. If Fristoe had given the plaintiff the bonds to collect, and pay the debt, he would have been clearly liable for the excess; and if there be an assignment without more being said, the assignor would be entitled to the excess, as so much money received to his use. For, the Court will not intend that the assignor would relinquish such an interest, without compensation, or an express agreement to the contrary. But, if there be an excess coming to us, we had a right to insist upon it as a discount. So that, if the Court should be against us on the point of usury, 70 a ^deduction to the amount of the excess should be made from the judgment. ■
    But the transaction was clearly usurious. The act of Assembly annuls every contract where more than lawful interest is reserved, whether the same be directly or indirectly, or by any shift, and this was plainly but a shift to elude the statute. Usury is a mixt question, both of law and fact; and it is for the Court to draw the conclusion from the facts found in the verdict; i. e. whether the facts stated, amount to usury or not. Roberts v. Tremayne, Cro. Jac. 508. Which case expressly proves, that it is not neces • sary for the verdict to find, in so many words, that the agreement was corrupt; but that the Court may infer it from the facts. In our case, the facts found amount to usury; and, therefore, no communication of a loan or other technical language, was necessary to be stated. It is said, that usury is odious, and not to be presumed. But this is only where the words are equivocal; for, then a favorable interpretation will be made. So, if there be a mistake, or if the contingency be doubtful. But if the facts stated amount to complete usury, and are not equivocal, then the transaction will be considered as usurious.
    The authorities cited by Mr. Washington, only prove that a loan is necessary: Which I admit. But those same books prove, that it is a loan whenever the money is to be certainly returned without any hazard. Here the plaintiff was certain of his money at all .events; and, therefore, the case falls within the principle of those cases. In Villars v. Cary, 6 Mod. 303, it is held that if there be a just debt due, and a bond be given for it with unlawful interest, it is usury; and the same principle may be collected from 12 Mod. 385. This doctrine is our case expressly; for here the defendant was indebted, and gave a new bond: The case in Cowp. cited by Mr. Washington, shews that a shift will not do; and that every case of usury should stand upon its own ground. Eristoe got time for payment of the 1061. 17s. 2d. sterling. Now 71 suppose *A. owes B. a sum of money, and pays it to him; who thereupon relends it to A. with more than lawful interest ; this is usury. Suppose then instead ■of his own bond, the party gives one in which he was security by assignment, he is not indeed liable in the first instance, but he is ultimately liable, and so is within the same principle.
    This practice is calculated to afford a cloak for usury, which may be secretly carried on to a great extent under pretense of discounts; and, therefore, the Court will view it with a jealous eye. It is said that it is like the case of a payment in lands with warranty, and that such a payment would hot be usury. But this is the difference, that the warranty in that case only obliges for the title, whereas the assignor pf a bond warrants not only that the bond is due, but that the obligor is able to pay; and, therefore, is ultimately liable for the money, if the obligor fails. Such a transaction as this, was expressly held to be usury in the case of Massa v. Dauling, 2 Stra. 1243; which was the case of an assignment of a note, and therefore is, in principle, precisely like the case before the Court.
    The decision that this is usury, will not affect the general question, whether one may not fairly purchase bonds at a discount ; for, this rests on particular grounds: here payment was called for, threats used that the defendant should not. remove till he had paid the debt, and an advantage attempted to be taken of Eristoe; which finally ends in bonds being given for more than the debt. This was forcing the party to give more than lawful interest. As to Eristoe’s acknowledgment, that the debt was just, it does not alter the case; for, it is only evidence of a fact, and other facts prove it was not for a just consideration.
    Washington, in reply'.
    If the plea in bar is over-ruled, then the defendant has admitted, that he has no payments to offer, and is consequently estopped to insist upon them after-72 wards. Payments ^cannot be given in evidence on the plea of usury; because they are not in issue. If the defendant meant to rely upon it, he should have pleaded doubly and inserted a plea of payment. But, if the plea of payment had been put in, the pretended discount could not have been insisted on. Eor, it is not the case, which Mr. Randolph supposes, of bonds put into the hands of the assignee to collect; but the whole contents are sold at a certain agreed value. The agreement is express, and does not admit of any presumption. The decision contended for, will affect all cases of the sale of bonds; and will make every purchaser liable for the surplus.
    It is admitted, that to constitute usury, there must be a loan; but here was none: there was no reservation of more,than legal interest; but it was a fair purchase of property ; in which, inadequacy of price will not constitute usury. The case in Stra. is so; and it was left to the jury in that case, whether it was a loan or a sale. According to the doctrine contended for, if a bill of exchange were paid at less than the current exchange, it would be usury. In short, the practice will destroy all accommodation between debtor and creditor; and put an end to payment in facilities altogether, however convenient to the parties. Suppose Eristoe had paid the whole debt in bonds at this value, then, according to the doctrine, Gibson was guilty of usury, and an information would lie for it. There is a case in Butw. 101, which goes the whole length of deciding this; and proves very clearly that the present transaction was not usurious.
    Randolph. That case turned on the capacity to make advantage; for the Judge says, there is a great difference between loss and gain. But, when the party who takes up, can’t make gain, it is usury, or else the quotation from Grotius would be idle. The plaintiff, therefore, in order to have avoided the statute, should have shewn that Eristoe was to derive profit from the transaction; but the fact is, that he sustained positive loss. I was misunderstood upon the subject of the rate of bonds. If the seller does not make himself an-73 swerable for the money, *it is not usury; but if he does, it is. In a transfer of stock, there is no future responsibility, and, therefore, no usury. So, if the owner of a bill of exchange delivers it over, without endorsement. But here, the assignor, according to the decision of this Court, is expressly liable; and, therefore, it is usury. Bonds in England do not pass by assignment; and, therefore, no argument can be drawn from them. Promissory notes there, are more like bonds here ; but no case is produced, to shew that such transaction in the case of a note would not be usury there. Indeed, the cases are the other way.
    Washington. The case in Butw. proves, that you may even buy guineas at less than value; and why not bonds? It is not material on which side the profit was; for, in usury, both are corrupt.
    
      
      Usury — What Constitutes. —To constitute usury, both parties must be consenting to the corrupt agreement; and it must proceed from, and be connected with, a treaty for the loan or forbearance of money. Skipwith v. Gibson, 4 H. & M. 490, citing the principal case ; Price v. Campbell, 2 Call 110.
      Same — Same—Principal in Hazard. — In contracts of loan, if there is a hazard that the creditor may receive less than his principal, it is no usury. Por this proposition, the principal case is cited with approval in State Bank v. Cowan, 8 Leigh 248 ; Smith v. Nicholas, 8 Leigh 350 ; Steptoe v. Harvey, 7 Leigh 522: Boulware v. Newton, 18 Gratt. 719 ; Brakeley v. Tuttle, 3 W. Va. 134.
      Same — Same—Slightness of Risk. — In many cases the courts have held the contracts to be usurious, in consequence of the slightness of the risk, though the loans were upon their face contracts of hazard. City of Lynchburg v. Norvell, 20 Gratt. 610, citing Reynolds v. Clayton, 2 Anderson R. 15 ; Mason v. Abdy, 3 Salk. R. 390 ; Gibson v. Fristoe, 1 Call 62.
      Same — Same—Accommodation Paper. — An ordinary note or bond may be purchased at a greater discount than legal interest, without imputations of usury, although such bond or note be given for accommodation, the purchasers being ignorant of that fact. Whitworth v. Adams, 5 Rand. 385, citing the principal case ; Price v. Campbell, 2 Call 110 ; Brown v. Brent, 1 H. & M. 4 ; Skipwith v. Gibson, 4 H. & M. 490 ; Hansbrough v. Baylor, 2 Munf. 36.
      In Gibson v. Fristoe, 1 Call 73, it is decided that an agreement by which a man secures to himself directly or indirectly a higher premium than legal interest for the loan of money, is usury. The principal case is distinguished in Call v. Scott, 4 Call 409.
      Same — Formal Communication — When Necessary.— The principal caséis cited in Taylor v. Bruce, Gilm84, for the proposition that a formal communication for a loan is only necessary to be shown, when a transaction has the form of a sale or the like, and the device is to be detected by showing the real cause which brought the parties together.
      Same — Proof of Usury — Circumstantial Evidence— Indications of Usury. — See the principal case cited in Smith v. Nicholas, 8 Leigh 360.
      Same — Special Verdict — Province of Court, of Jury.— In a special verdict, the j nry need not find the usury. They find the facts, and the law infers the usury. For this proposition the principal case is cited in Whitworth v. Adams, 5 Rand. 340; Brummel v. Enders, 18 Gratt. 885 ; Bank v. Mandeville, Fed. Cas. No. 850, 2 Fed. Cas., page 610.
      Same — Same—Same — intention of Parties. — Where the facts are found by a special verdict, agreed by the parties, or admitted by a demurrer, the inference of law as to the intention of the parties to lend or to sell, devolves on the court. For this proposition, the principal case is cited with approval in Whitworth v. Adams, 5 Rand. 406 ; Stribbling v. Bank, 5 Rand. 145, 161, 194 ; Brockenbrough v. Spindle, 17 Gratt. 43.
      In Gibson v. Fristoe, 1 Call 62, it is decided, that though the corrupt agreement be not expressed in the verdict, yet if it is apparent to the court that the matter is usury, it is not necessary for the jury to show that it was corruptly made; and Tremaine v. Roberts, Cro. Jac. 508, is cited, where it is said res ipsa loauitur.
      
      For a full discussion of this subj ect, see mono-graphic note on “Usury” appended to Coffman & Bruffy v. Miller, 26 Gratt. 698.
    
   ROANE, Judge.

At the first hearing of this cause, I was strongly inclined to think that the bond in question was usurious, even upon an ex parte argument, but now, upon a full discussion, and mature consideration, T am confirmed in that opinion. But, before I come particularly to the circumstances of the present case, as arising from the special verdict, I will lay down some principles, which appear to be clearly warranted by law.

1st. If the corrupt agreement be not expressed in the verdict, but it is apparent to the Court that the matter is usury, there it is not necessary for the jury to shew that it was corruptly made. Roberts v. Tremayne; Cro. Jac. 508; for, in the language of the case, res ipsa loquitur.

2d. That, where the intention of the contract is to get more than legal interest upon the. sum lent, it is usury; unless the sum itself be put in risque. [Jestons v. Brooke,] Cowp. 797.

3d. But, that a slight contingencj7 will not take a contract out of the statute, where the substance of the contract is a borrowing and a lending. [Richards v. Brown,] Cowp. 776.

4th. I hold it also to be a clear principle, that a corrupt forbearance of money 74 then due, is as *much within the statute as an original loan; and that, within the meaning of the statute, it is a loan.

To test the present case, by the foregoing principles:

On the 17th day of December, 1787, the defendant being indebted to the plaintiff by bond, on demand, in 4421. 11s. 2d. sterling, with interest from the first of January, 1786; by agreement, assigned to the plaintiff certain bonds, amounting to 7801. currency, at the value of 3821. 8s. 2d. sterling, and his own bond for 1491. 12s. Id. currency, on account of the said debt. Which bonds, the jury find, exceeded the original debt and interest, by the sum of 2441. 12s. 7d. currency; on the giving and assigning these bonds respectively, the plaintiff lent, or which is the same thing, forbore to demand the money originally due him; as to the sum for which the bond in December was given, until the first of March, 1789, and as to much the greater part of the money due by the bonds assigned, until periods of time posterior to that of the transaction. The bonds so assigned, and the bond in December, are all of them bonds with sureties; whereas the bond, in lieu of which they were given, was a single bond; and as the jury find that the obligors in the bonds assigned were, at the time of the assignment, deemed of sufficient estate and property to discharge the same, I may safely affirm that the risque of losing the present money, as respects the ability of the obligors, was not increased, but rather lessened by the transaction now in- question. It is also found; that the defendant, about the time of this transaction, intended to remove to Kentucky. Whence we may reasonably infer, that he was under a peculiar situation, which placed him much within the power of his creditor.

Under the above principles, is this transaction usurious or not?

The money due, as above stated, 'was, by this transaction, forborne to be demanded; and, in consideration 75 ^thereof, one obligation was given, and others assigned, the amount of which exceeded greatly the principal and interest really due. It is true, the jury . have not found the forbearance, in so many words; but, they have found the agreement and the bond, in -which the forbearance is contained, and that is the same thing. The money due by these obligors could, every shilling of it, have been recovered, supposing the question of usury out of the case, unless there had been an insolvency of the obligors; and, in the case at bar, that is far less probable, than in the original bond. For, there are sureties to the bond on which the suit is brought, whereas that was a single bond, and the obligors, in the bonds assigned, are found to have been of sufficient ability. What then, upon the face of -this transaction, could have induced the defendant to have acceded to the terms of this unrighteous accommodation, but the distress and duress under which he laboured?

If it be said, that on the contingencj7 of all the obligors in the original bond being insolvent, then Fristoe could only be made responsible for the sum allowed as the value of the assigned bonds, upon the principle on which this Court went in the case of Mackie’s exr. v. Davis, et al. 2 Wash. 219, which sum, with the bond in discussion, is not more than was originally due. I answer, that the event of their being insolvent, under all the circumstances of this case, are too slight and remote a contingency to take the case out of the statute, according to the spirit of the decisions, upon the subject.

But we are to consider the case, upon the bond only, for, if .the agreement of the creditor is to get an illegal profit on money lent, every bond given in pursuance thereof, is void.

In deciding this case, I go entirely upon the circumstances of the transaction in question, forming the terms, on which money was to be lent or forborne; and, therefore, it is entirely different, from a case of the sale of a bond, unconnected 76 *with a loan. For, in my mind, every . circumstance here, has considerable weight; especially the ability of the obligors, the additional sureties; and the defendants being about to remove to Kentucky. The decision of this case, therefore, will not affeGt other cases, where such circumstances are wanting.

I said, that the jury have found what is tantamount to finding a forbearance expressly ; that is to say, they have found an agreement which shews a forbearance; and bonds given in pursuance thereof, payable in future, for a debt due by a bond on demand : And this being the case, I may say, in the emphatical terms of Lord Mansfield, [in Lowe v. Waller, 2 Doug. 740,] that it is impossible to wink so bard, as not to see, that a borrowing and loan of money was intended.

. But these bonds, it is said, were sold for their real value: I answer, that in case of the solvency of the obligors, (of which there was no reason to doubt from the verdict,) the plaintiff, inasmuch as bonds form a certain measure of value, was sure of getting a sum exceeding that due, -with interest by the sum of 2441. 12s. 7d. currency, and the present sum not put in risque.

But, indeed, putting bonds merely on the footing of chattels; I suppose that if, on an usurious agreement for money, a horse were set off at 251., whereby to enhance the balance of the money borrowed, beyond what in justice it ought to be; and a bond given for the balance in pursuance of such agreement expressed, or which is the same thing, manifestly inferred from the circumstances of the transaction itself, that such bond would not be permitted to stand; but would be deemed usurious and void. For, where the intention is to get an illegal profit upon money lent or forborne, the writ of man, as said by Lord Mansfield, [in Floyer v. Edwards, 1 Cowp. 114,] cannot devise a shift to evade the statute.

On every principle, therefore, this transaction is usurious, and the judgment of the District Court is right.

*CARRINGTON, Judge. The case carries several marks of hardship along with it, all tending to shew, that the defendant was driven into an agreement to give more than the law has established, for a little longer indulgence from his creditor. For, none but a man pressed by the urgency of his affairs, would have consented to such an improvident bargain, and unusual sacrifice, as was made in the present case. Into whatever shape thrown, it was, strictly speaking, an engagement on the part of the plaintiff to receive, and of the defendant to allow greater gain, than that prescribed by the statute. In other words, it was a contract of forbearance, in consideration of more than the legal profit; both principal and profit being so well secured, that there was not the slightest danger of either being lost. There cannot be a doubt but this was usury'; and, therefore, I am for affirming the judgment.

LYONS, Judge. The bond is good in form, but it is objected to, as being given for an usurious consideration; because, the assigned bonds and this together were for more than the original debt. In all findings by juries, nothing is to be presumed; for facts and not evidence of facts, must be found, which was well illustrated at the bar, by the case of an action of trover and conversion; in which, if the verdict omits to find the conversion, it will not be presumed. In the present case, the verdict does not find that the assigned bonds were transferred at more than the current value, and if any presumption were to be admitted at all, it should rather be in favor of the plaintiff: who ought to be supposed to have acted rightly, until the contrary is shewn; especially as the defendant acknowledged afterwards, that the debt was just, and it is a rule that fraud or corruption ought not to be presumed, neither does the verdict state any' offer of further time for the balance on payment of the bonds; and therefore, all argument upon that ground fails. So, that upon the verdict, it is really no more, than the ordinary case of a sale 78 of *bonds, which is not unlawful, according to the decision of this Court in the case of Hunter’s exrs. v. Hylton, where the bonds were as well secured, as those in the present instance. If, then, it would not have been wrong in other persons, to have purchased them on those terms, why should it be in the plaintiff, when there was no communication for a loan or forbearance? I confess I can see no reason for it; and therefore, cannot say that the agreement was illegal.

The intended removal to Kentucky even if it had been imparted by the defendant to the plaintiff, would not have altered the case; but if it would, still the jury have not found that the defendant told the plaintiff of his intention to go thither, or that there was any conversation between them concerning it; and therefore, no inference can be drawn from thence. The verdict does not state, that the defendant considered himself in the plaintiff’s power, or that he was driven into any usurious engagement, by the terrors of his situation. Ought I then, as Judge sitting here to decide upon the facts presented to me in the verdict, to presume, what the jury with all the evidence before them have not thought proper to infer? Especially, when the transaction bears another construction, namely, that the defendant being about to leave the State, meant to do justice before he went.

The plaintiff’s conduct appears to have been fair throughout, not only during the transaction itself, but even after the suit was brought; for, the plea of payment was withdrawn by consent, which was fair and candid, and if presumptions were to be indulged, it would afford no slight evidence of his confidence in the purity of the original negociation. But, I repeat it again, that presumptions ought not to be admitted at all.

The jury might have found, if the evidence would have supported them in it, that the defendant was forced into the settlement, that there was an intention 79 on the part of the plaintiff to *make illegal gain, and that the bond was given in consideration of forbearance; but they having omitted to find these facts, I with less information of the transaction than they possessed, am not at liberty to infer them. The defendant surely, cannot expect me to be satisfied with less evidence, than would convince the jury.

It was said though, that the jury was not bound to find in words, that the agreement was corrupt or usurious. Be it so ; but then they must find something equivalent to it. In the present case, they have not found any circumstance constituting a corrupt or illegal bargain ; and j'et I am called on to pronounce the transaction usurious, when not a single ingredient constituting usury, is contained in the verdict. For, the jury have not found, either that the defendant asked, or that the plantiff offered a forbearance ; they have not stated any corrupt motive, or design to make illegal profit from the 'distressed situation of the defendant ; they have not said that the bonds were settled at less than the market value, -or that the defendant was driveb into the agreement by the exigency of his affairs, or the extortion of the plaintiff. But, without something of this kind, surely there can be no usury. Although goods sold for more than the value, or property settled at less, may be usury according to the circumstances, yet those circumstances must be found. In the case of the goods, a prior communication for a loan, or something amounting to it must be stated; and in the case of the property, the actual value should be found, with the forbearance and other circumstances tending to shew, that it was settled at less, with an usurious intention. Bonds actually due do not sell for the nominal amount; and much less those upon time.' They fluctuate in value like corn, wheat, or any other article. So, that the purchase of them, for less than they express upon the face, may be perfectly innocent. I cannot, therefore, in the present case decide, that a transaction, unaccompanied with any unfair practice 80 *is void; merely because the defendant has voluntarily made an improvident bargain, which has eventually proved beneficial to the plaintiff, whose conduct has not been impeached.

That the bonds were warranted to be due, don’t alter the case; for, all sales are warranted; and perhaps the plaintiff could not have recovered of the defendant more than the value paid, in case there had been an insolvency.

Upon the whole, the least that could have been required, would be, that the verdict should have stated that the assigned bonds were rated below the market value; and that in consideration thereof, the bond on which the suit is brought, was given for forbearance of the balance; the most, therefore, that could be done for the defendant, would be to award a new trial in order to have the defects supplied. But I am for reversing the judgment.

PENDLETON, President. I do not consider the verdict in the present case as uncertain, or unobjectionable as finding evidence instead of facts. The jury refer to the evidence indeed, but that is surplusage, since they find the facts, which are proved by that evidence. Usury is a question of law, and the jury find in a clear and sensible manner, all the facts necessary to decide it.

Mr. Randolph’s first point may be thrown out of the question, since if there was no usury, the bargain was to stand; and the bonds assigned at the value agreed on of 3821. 8s. 2d. sterling, leaves no excess to be set-off against the bond on which the suit was brought. The supposed threat of the plaintiff not appearing- to have been used at the agreement, if it was of any consequence, may also be laid aside, or balanced by the other, finding that the defendant acknowledged the debt to be just, when the writ was served; which is equally unimportant, since he could no more sanctify the corrupt agreement, if it was one, 81 by that acknowledgment, *than he could by his original assent in making it.

I proceed, therefore, to the principal point.

The legal principles on which questions of usury are to be decided, appear to me to be well settled.

An agreement by which a man secures to himself, directly or indirectly, a higher premium than legal interest for the loan of money, or the forbearance of a debt due (for, in reason and precedent, they stand on the same ground,) is usury. But if the principal, or any considerable part, be put in risque, it is not usury; b.ecause, the excess in the premium, is a consideration for that risque. So, if it be a mere sale of property (and bonds are as much property in this respect as any thing else,) although at an under value, it is not usury; because, price is a thing unfixed, and depends upon the convenience of the parties contracting.

But, if the bargain proceeds from, and is connected with a treaty for the loan or forbearance of money, it is usury; because, the vendor is supposed to have submitted to a disadvantageous price, under the influence of that necessity, which the statute meant to protect him against.

How do these principles apply to the present case on the special verdict?

The jury find that, on the bonds assigned, and the bond in suit, the plaintiff received 2441. 8s. 7d. more than the principal and interest, due on the bond, they were meant to discharge; and that no part of the principal was put in risque under the agreement, since they find that the obligors were deemed solvent at the time, and proved so in event. The plaintiff’s security was bettered too by the liability of the debtors in the bonds assigned, and the sureties to his new bond, instead of the defendant, being alone answerable on the old bond; and he still remained liable for the whole: So that there was no risque.

*Then, was this a mere independent sale of the bonds, or connected with a proceeding, from a treaty for payment of part of a debt due, and forbearance of the residue? It is apparently the latter; and, therefore, it differs from the case of Hylton v. Hunter’s ex’rs. which was a mere bargain for sale of bonds; and there was no prior treaty for borrowing or forbearance.

Eor, what brought the parties together in the present case? It was not to treat of the sale and purchase of bonds, but of the debt existing between them. The bonds are offered as payment, and the plaintiff in his acceptance of them, imposes on the defendant terms, which secure to himself a profit beyond legal interest: and on these terms, as they make but a partial payment, he will give a further day for the balance; provided, the defendant will, to his own obligation, add other security for it. These terms are accepted, and the bond in suit given in consequence.

Under this view of the case, nothing can be more apparent to me, than that this agreement was entered into by the defendant, in order to procure forbearance of part of a debt due, and to avoid a suit for the whole, and that it was not a.n independent sale. Which, if it had been, I should have adjudged it the proper business of a Court of Equity to enquire into its fairness or iniquity, and that it was not usury.

I concur in affirming the judgment; and am authorized by the absent Judge to say, that lie also concurred.  