
    
      Steptoe’s Adm’rs v. Harvey’s Ex’ors.
    May, 1836,
    Richmond.
    (Absent Cabell, J.)
    Usury — Contract to Take 172 Shares for 142 Bank Stock at End of Year — Effect.*—A contract to take, for the loan of 142 shares of bank stock for a year, thirty additional shares, is not void under the statute against usury; for, the 172 shares to be returned may not, at the time of returning them, be of any greater value than the 142 shares received, at the time of receiving them, with the dividends or interest added.
    Same —Same —Same — Case at Bar.— In covenant on an obligation to pay 172 shares of bank stock twelve months after date, plea alleges an agreement to lend 142 shares of the value of 100 dollars each, to be returned twelve months after date with more than the value of the dividends which would accrue thereon, and, though payable twelve months after date, with more than the value of 6 dollars for every 100 dollars of the value of the stock so loaned, to wit, with 30 shares of the said stock in addition to the 142 lent, which 30 shares were, at the date of the agreement, of the value of 100 dollars each, and that the obligation was executed in pursuance of this agreement: Held, the agreement set forth is not unlawful, and there being no allegation that the transaction was a shift or device to evade the statute against usury, the plea presents no bar to the action, and was properly rejected.
    Obligation under Seal — Unperformed—How Discharged —At Common Law — Under Statute. — A valid obligation created by an instrument under seal, and not performed, can only be discharged at common law by a sealed instrument. In certain cases the statutes have allowed sealed obligations to be discharged by other matter, and in these particular cases such matter may be pleaded and proved at law. But it is a sound principle that in an action on an instrument under seal, no parol agreement can be pleaded in bar, unless the statute gives the defence.
    Bonds — Parol Agreement with Principal to Give Further Time — Effect as to Surety. — In an action on a bond against a surety, a plea that the creditor has made a parol agreement with the principal to give him time, without the privity of the surety, presents no bar to the action, and will be rejected.
    Argument of Counsel — Failure of Lower Court to Allow Defendant’s Counsel to Open and Conclude — Effect in Appellate Court. — Where the general issue is not pleaded, but special matter, the proof of which rests on the defendant, it may be proper for the court in which the cause is pending, to allow his counsel to begin the argument an d have the reply. But be this as it may, the failure of the court below to allow the defendant’s counsel to *open and conclude, is not of itself sufficient ground for an appellate court to set aside a verdict not appearing to be contrary to evidence
    William Mitchell, Christopher Clark, James C. Steptoe and Robert Mitchell executed under their hands and seals an obligation to Matthew Harvey in these words: ‘ ‘Twelve months after date, we Wm. Mitchell, Christopher Clark, James C. Steptoe and Robert Mitchell promise to pay to Matthew Harvey or order one hundred and seventy-two shares of stock of the farmers bank of Virginia; to which payment well and truly to be made, we bind ourselves jointly and severally, our heirs, ex’ors &c. Witness our hands and seals this March the 23d 1816.”
    John M. Harvey and Magdalen Harvey, executor and executrix of Matthew Harvey deceased, brought an action in the superiour court of Botetourt against Thomas Steptoe and William •- Ranghorne administrators with the will annexed of James C. Steptoe’ deceased, for breach of the covenant contained in this obligation.
    The defendants tendered three pleas. The first, after taking oyer of the covenant, alleged that on the 23d of March 1816, -it was unlawfully and corruptly agreed between the testator of the plaintiffs and William Mitchell, that the testator of the plaintiffs should lend and advance to the said William Mitchell the sum of 14,200 dollars, and should forbear and give day of payment on the said loan for twelve months from the 23d of March 1816, and that in consideration of the said loan and forbearance the said William Mitchell should return and pay to the said testator, twelve months after the said 23d March 1816, the aforesaid sum of 14,200 dollars, with more than six per centum per annum interest thereon, to wit, with the sum of 3000 dollars, as the premium for the forbearance and giving day of payment of the said sum of 14,200 dollars for twelve months; and that, in order to secure the payment of the said two fsums of 14,200 and 3000 dollars at the expiration of the said twelve months, and as a shift and device to evade the laws against usury, the said William Mitchell, together with Christopher Clark, James C. Steptoe, the testator of the defendants, and Robert Mitchell, as his sureties, should execute a writing under their seals, and deliver it as their act and deed, binding them to pay to the said testator, twelve months after the date aforesaid, one hundred and -seventy-two shares of the stock of the Farmers bank of Virginia, the said stock being then of the full and fair value of 17,200 dollars. It was then averred, that in pursuance of the said corrupt, usurious and unlawful contract, and in fulfilment thereof, and for no other consideration, the said William Mitchell, Christopher Clark, James C. Steptoe, the testator of the defendants, and Robert Mitchell did, on the said 23d •of March 1816, sign, seal and deliver as and for their act and deed the supposed •deed in the declaration mentioned. And so the defendants said, that the said supposed deed was made and delivered upon a usurious consideration, and was void in law.
    The second plea alleged, that on the 23d of March 1816, it was corruptly and against the act of assembly agreed between the said Matthew Harvey and the said William Mitchell, that the said Harvey would authorize the said Mitchell to sell and transfer one hundred and forty-two shares of the stock of the Farmers bank of Virginia which the said Harvey then held and owned, and receive the money proceeding from the sale thereof the said shares being then of the value of 100 dollars for each share; that the said Harvey would lend, •forbear and give day of payment of the money so to be received, for 12 months after the said 23d of March 1816, and that the said Mitchell, in consideration of the said loan, forbearance and giving day of payment, would return and pay to the said Matthew Harvey the money so to be lent and forborne, together with interest *thereon above the value of six dollars for each and every 100 dollars of the money so to be lent, for one year, that is to say, should return and pay to the said Matthew, 12 months after the date aforesaid, the sum of 17,200 dollars, which was more than the money so to be lent and the value of six dollars for each 100 dollars thereof for 12 months; and that, to secure the payment of the said sum of 17,200 dollars, and as a shift and device to evade the said act of assembly against usury, the said William Mitchell, together with the aforesaid Christopher Clark, James C. Steptoe and Robert Mitchell, should execute and deliver as their act and deed, a covenant in writing under their seals, binding them, twelve months after the date aforesaid, to pay to the said Matthew Harvey one hundred and seventy-two shares of the stock of the said Farmers bank of Virginia, which said stock was then of the full and fair value of 100 dollars for each share thereof. It was then averred, that in pursuance of the said corrupt and usurious contract, and in fulfilment thereof, and for no other consideration, the said William Mitchell, Christopher Clark, the defendants’ testator James C. Steptoe, and Robert Mitchell, on the said 23d of March 1816, signed, sealed and delivered to the said Matthew Harvey the supposed deed in the declaration mentioned, as and for their act and deed; that afterwards, to wit, on the 29th March 1816, the said Matthew Harvey, in further compliance with said corrupt and usurious agreement, gave to the said William Mitchell authority to sell and transfer the said one hundred and forty-two shares of stock, which he the said Mitchell did accordingly afterwards sell and transfer for their full value, to wit, for the price of 100 dollars for each share and no more, making in the whole 14,200 dollars, for which the said Harvey, pursuant to said usurious agreement, forbore and gave day of payment for 12 months after the said 23d of March 1816. And so the defendants said, that the supposed deed in the declaration ^mentioned was made and delivered on a usurious consideration, against the act of assembly, and is void in law.
    The said first and second pleas were received without objection, and the plaintiffs filed general replications to them, tendering issues, and the defendants joined in the issues.
    The third plea was in these words: 1 ‘And the said defendants for further plea say, that the plaintiffs their action aforesaid thereof ought not to have and maintain against them, because they say that on the 23d day of March 1816, at in the county aforesaid, it was corruptly and against the form of the act of assembly in that case made and provided, agreed between the said Matthew Harvey and the said William Mitchell, that the said Matthew Harvey should lend to the said William Mitchell one hundred and forty-two shares of the stock of the Farmers bank of Virginia, -which the said Harvey then and there held and owned, of the value of one. hundred dollars for each share thereof, and no more, and should forbear and give day of payment thereof for twelve months after the said 23d of March 1816, and that, for the said loan, forbearance and giving day of payment of the said stock, the said William Mitchell should return and pay to the said Matthew, twelve months after the said 23d March 1816, the aforesaid one hundred and forty-two shares of stock, 'with more than the value of the dividends which would accrue thereon, and though payable twelve months after date as aforesaid, with more than the value of six dollars for one year for each and every one hundred dollars of the value of the stock so loaned, to wit, with thirty shares of the said stock, in addition to the said one hundred and forty-two shares to be lent as aforesaid, which said thirty additional shares were then and there, to wit, on the said 23d March 1816, at in the county aforesaid, of the full and fair value of one hundred dollars *for each share, and that, in order to secure the payment of the said one hundred and forty-two shares, and of the said thirty shares in addition thereto, the said William Mitchell, together with Christopher Clark, the testator of the defendants James C. Steptoe, and Robert Mitchell, should execute and deliver to the said Matthew Harvey as their act and deed, a covenant in writing under their seals, binding themselves to pay to the said Matthew, twelve months after the date aforesaid, one hundred and seventy-two shares of the said stock, the same being then and there of the value of one hundred dollars for each share. And the defendants in fact say, that in pursuance of the said corrupt, usurious and unlawful agreement, and in fulfilment thereof, and for no other consideration, the said William Mitchell, Christopher Clark, James C. Steptoe and Robert Mitchell did, on the said 23d day of March 1816, at in the county aforesaid, sign, seal and deliver as and for their act and deed, the aforesaid supposed deed in the plaintiffs’ declaration mentioned; and so the said defendants say that the said supposed deed in the plaintiffs’ declaration mentioned, was made and delivered upon a usurious consideration, against the act of assembly in that case provided, and is void in law, and this they are ready to verify. Wherefore they pray judgment &c.”
    The plaintiffs objected to the third plea, and moved the court to reject it, on the ground that it presented no bar to the action ; and the court being of this opinion rejected the same accordingly; to which the defendants excepted.
    The defendants then filed a fourth plea, alleging, that on the 23d of March 1816, it was corruptly and against the act of assembly agreed between the said Matthew Harvey and William Mitchell, that the said Matthew should lend to the said William one hundred and forty two shares of the stock of the Farmers bank of Virginia, *which the said Harvey then and therte held and owned, of the value of 100 dollars for each share thereof, and no more, and should forbear and give day of payment thereof for 12 months after the said 23d of March 1816, and that, for the said loan, forbearance and giving day of payment of the said stock, the said William Mitchell should return and pay to the said Matthew, 12 months after the said 23d of March 1816, the aforesaid 142 shares, of stock, with more than the value of the dividends which would accrue thereon from the said 23d of March 1816 for 12 months, and with more than the value of six dollars for one year for each and every 100 dollars of the value of the stock so lent, to wit, with thirty shares of the said stock in addition to the said 142 shares so to be lent, which said thirty additional shares, though to be paid and transferred twelve months after date, were then of the full and fair value of 90 dollars for each share in cash, w'hich said value was then well known to the said Harvey and Mitchell, and which said thirty shares were so agreed to be paid, as a premium for the forbearance aforesaid, and with the intent of the parties to secure to the said Harvey, upon the loan aforesaid, more than the value of six dollars for one year for each and every 100 dollars of the value of the said 142 shares of stock so to be lent, and that, in order to secure the payment of the said 142 shares and of the said 30 shares, it was then further agreed between the said Matthew and William, that the said William Mitchell, together with Christopher Clark, the defendants’ testator James C. Steptoe, and Robert Mitchell, should execute and deliver to the said Matthew Harvey as their act and deed, a covenant in writing under their seals, binding themselves to pay to the said Matthew, twelve months after the date aforesaid, one hundred and seventy-two shares of the said stock, the same being then of the value of 100 dollars for each share. It was then averred, that in pursuance of the *said corrupt, usurious and unlawful agreement, and for no other consideration, the said William Mitchell, Christopher Clark, James C. Step-toe and Robert Mitchell did, on the 23d March 1816, sign, seal and deliver as and for their act and deed, the supposed deed in the declaration mentioned. And so the defendants said that the said supposed deed in the declaration mentioned was made and delivered upon a usurious consideration, against the act of assembly, and is void in law. To this plea the plaintiffs replied generally, tendering an issue, and the defendants joined in the issue.
    The defendants then offered two other pleas in the following words: “5th plea-— And the said defendants for further plea say, that the plaintiffs their action aforesaid thereof ought not to have and maintain against them, because they say that their testator James C. Steptoe, in his lifetime, signed, sealed and delivered the supposed deed in the plaintiffs’ declaration mentioned, as one of the securities of William Mitchell the principal covenantor in said deed, who alone received the consideration for which the said supposed deed was executed, the said James C.‘ Steptoe and the other obligors therein named having no other interest in the said supposed ■deed, and being no otherwise bound thereby, than as sureties for the said William Mitchell; and that, on the 23d of March 1817, at in the county aforesaid, when the stock in the said supposed deed mentioned was due and payable according to the tenor and effect of the covenant therein, and when the said William Mitchell was solvent and fully able to have paid and discharged the same, the said Matthew Harvey the plaintiffs’ testator, without the knowledge or consent of the said James C. Steptoe in his lifetime, or of these defendants since this death, in consideration of the sum of six hundred and eighty-eight dollars then and there agreed to be paid by the said- William Mitchell to the said Matthew Harvey, entered into a new contract with *the said William Mitchell in relation thereto, by which new contract the plaintiffs’ testator agreed with the said Mitchell, that he would indulge him and give day of payment for the said stock until the 23d day of March 1819. And the defendants in fact say, that the said William Mitchell, after the said 23d of March 1817 and before the said 23d of March 1819, became wholly insolvent and unable to pay the said stock or any part of it, and so remained until his death, whereby the said James C. Steptoe in his lifetime, and these defendants since his death, became and are deprived of all remedy against the said William Mitchell in his lifetime, and against his representatives since his death. Wherefore these ■defendants say, that their testator in his lifetime was, and that they since his death are, wholly exonerated in law from the obligation of the said supposed deed and the ■covenants therein, and this they are ready to verify. Wherefore they pray judgment &c.
    6th plea — -And the said defendants for further plea say, that the plaintiffs their action aforesaid thereof ought not to have and maintain against them, because they say that their testator James C. Steptoe in his lifetime signed, sealed and delivered the supposed deed in the plaintiffs’ declaration mentioned, as one of the sureties ■of William Mitchell the principal cove-nantor therein, who alone received the consideration for which the said deed was executed, the said James C. Steptoe and the other covenantors therein mentioned having no other interest in the said supposed deed, and being no otherwise bound thereby, than as sureties for the said William Mitchell; and that after the 23d day of March 1817, to wit, on the day of July 1817, at in the county aforesaid, when the stock in the said supposed deed mentioned had become due and payable according to the tenor and effect of the covenants therein contained, and after the said covenant had been broken, and remained in law a contract the breach *whereof was to be compensated in damages, and at a time when the said William Mitchell was solvent and fully able to pay the said damages, the said Matthew Harvey, in consideration of the sum of 688 dollars then and there paid to him by the said Mitchell, entered into a new contract with the said William Mitchell, in 'relation to the said stock in the said supposed deed mentioned, by which new contract the said Matthew Harvey, without the knowledge or consent of the said James C. Steptoe in his lifetime, or of these defendants since his death, agreed with the said William Mitchell, that the contract aforesaid should be and remain a contract for the delivery of 172 shares of the stock in the said supposed deed mentioned, and should be fully satisfied and discharged by the delivery of such stock, and the payment of such dividends as should accrue thereon, on or before the 23d of March 1819. And these defendants in fact say, that the said William Mitchell, after the said day of July 1817, became wholly Insolvent and unable to pajr the stock aforesaid and the damages aforesaid, or any part thereof, and so remained till his death. Whereby the said James C. Steptoe in his lifetime, and these defendants since his death, are deprived of all remedy and redress against the said William Mitchell in his lifetime, and against his representatives since his death. Wherefore these defendants say, that the said James C. Steptoe in his lifetime was, and that these defendants since his death are, wholly exonerated in law from the obligation of the said supposed deed and the covenants therein contained, and this they are ready to verify. Wherefore they pray judgment &c.”
    These two pleas were also objected to by the plaintiffs, on the ground that neither of them presented any bar to the action; and the court being of this opinion rejected both; to which the defendants excepted.
    A jury was afterwards impaneled to try the issues. On the trial, the defendants moved the court to instruct *the jury, that if they believed from the evidence, that the consideration of the covenant was one hundred and forty-two shares of the stock of the Farmers bank of Virginia, lent by the plaintiffs’ testator to William Mitchell the first named cove-nantor, for twelve months from the date of the said covenant, of the value, at the time of the loan, of one hundred dollars each share, and that the thirty shares, additional to the said 142 shares, were reserved and agreed to be paid in consideration of the forbearance of the said 142 shares for 12 months from the date of the covenant, and that the value of the 30 shares, so reserved and payable 12 months after date, was greatly more than six per centum on the value of the said 142 shares so lent, that the 30 shares were worth in fair market, if sold on the said 23d of March 1816, deliverable twelve months after date, at least 50 dollars per share, and that both parties so understood it, and intended to secure to the said Harvey for the loan aforesaid a compensation of the value aforesaid, — then, upon the third plea upon which issue was joined, the defendants were entitled to a verdict, and this without any reference to the question whether Harvey would gain or lose by the rise or fall of the market price of the 142 shares of stock so lent: which instruction the court refused to give, but instructed the jury, that if they should be satisfied from the evidence, that the whole of the consideration of the covenant, which passed from Harvey to Mitchell &c. was 142 shares of bank stock, worth at the time 100 dollars each, and that the same was lent and received by the parties as and for 14,200 dollars, to be returned, at the day given, in stock of 142 shares, with the addition of 30 shares, the contract to give and receive the 30 shares aforesaid did not necessarily make the whole or any part of the contract between the parties corrupt or usurious, because the whole 172 shares to be returned at the day given might not be : ! ; : ■ ! : : • i ! worth as much as, or more than, the whole of the 142 shares at *the time they were delivered; but to make the : s ! covenant or contract corrupt or usurious, it must be proved to the satisfaction of the jury, that the parties agreed upon the value of the shares lent, with their dividends or interest, and for the premium to be paid by Mitchell &c. for forbearance and giving day, which premium was more than six per cent, upon the value of the subject lent, and that, to secure such excessive premium, it was also agreed by and between the parties to give and receive the aforesaid 30 shares as an equivalent for such excessive premium; and further instructed the jury, that if they should believe from the evidence, that 142 shares of bank stock were either lent or sold by Harvey to Mitchell &c. for 172 shares to be returned at a future day in kind, without stipulating as to the value of the shares, each speculating upon the greater or less value of stock at such future day, so that Harvey might lose and Mitchell &c. gain if the value or price of stock were less at such future day, the contract was not usurious in consequence of the fact that, at the day of payment, the value of the stock was such) that Harvey should receive, in 172 shares, more than the value of 142 shares with interest at the time he lent or sold them. To which opinion of the court the defendants excepted. ! : [ • • ■ i : :
    The defendants holding the affirmative of the issues, their counsel claimed the right of opening and concluding the argument of the cause before the jury, and moved the court to permit him to open and conclude, but the court overruled the motion and allowed the plaintiffs’ counsel to open and conclude. To which opinion the defendants also excepted.
    The jury found a verdict for the plaintiffs, and assessed their damages to 18,200 dollars, with legal interest thereon from the first day of March 1819, to which time, it appeared, the testator of the plaintiffs had received the dividends of the stock. Judgment was rendered on the verdict. And the defendants appealed to this court.
    *The cause was argued here by Johnson for the appellants, and C. Robinson for the appellees.
    I. Johnson said, the third plea was intended to raise the question whether there might be usury where the loan was not of money but of some other thing to be returned ejusdem generis. The plea does not take the broad ground that a loan of 100 bushels of wheat in June 1835, with a covenant to return 120 in June 1836, is necessarily usurious. But it takes the ground that a loan of 100 bushels, with a covenant to return what the parties intend to be more in value than the 100 bushels with six per cent, interest, is usury. He referred to the statute 1 Rev. Code, ch. 102, 'i 1, p. 373, which provides that “no person shall, upon any contract, take directly or indirectly, for loan of any money, wares or merchandize or other commodity, above the value of six dollars for the forbearance of one hundred dollars for a year,’’ and said that to reject this plea would be to strike words out of the act. It would be argued that the stock to be returned might at the end of a year be worth less than the stock received; but mere possibilities ought not to be looked to. The court should look to the probabilities on which parties negotiate. A reservation of that which is plainly and obviously at the time worth more than what interest would be, must be usury. Tf this were not so, he asks, how could there be usury in commodities? Suppose a sum of money be lent of which the interest would be 30 dollars, and in lieu of interest there be reserved the use of a valuable plantation or slave,— a plantation which has habitually rented, or a slave that has uniformly hired, for 100 dollars, — -he en-quired whether this would not be usury? The circumstance that the thing reserved was variable in value, he admitted, would put it upon the party to shew the intent. Here, he said, the intent was averred. *The court also, he insisted, com- ' mitted an error in refusing to give the instruction asked at the trial, and in giving the instruction which it did give.
    - ; : : II. Johnson contended, that the court erred in rejecting the fifth and sixth pleas. They presented the question whether it could be pleaded at law that some of the obligors were sureties, and that such dealing had taken place between the creditor .and principal debtor as would discharge the sureties. That equity would give relief upon proof of the facts pleaded, he said was clear, and it seemed to him that when equity had established a rule giving relief in a particular state of facts, the law ought to conform. He cited Moore v. Bowmaker, 6 Taunt. 379; 1 Eng. C. L. R. 417; Samuel v. Howarth, 3 Meriv. 272; Pain v. Packard &c., 13 Johns. 174; King v. Baldwin, 2 Johns. Ch. Rep. 554; S. C., 17 Johns. 384. He compared a plea of this kind to a plea of usury, and did not see why the facts which went to discharge the obligors might not be pleaded in the one case as well as the other. The law should follow equity, as it had done in cases of penalties. Under the act in 1 Rev. Code, ch. 116, <t 6, p. 461, it had been decided that a surety might set up at law the discharge created by that act. Wright’s adm’r v. Stockton, 5 Leigh 153. And he did not perceive how the relief, where it'was against the whole demand, could be had more effectually under a statute than under the doctrines of the common law. He adverted to the defence allowed in cases of fraud, and said, that modern legislation was in favour of allowing defences of this nature at law, and such legislation ought to have weight. Acts of 1830-31, ch. 11, § 62, p. 62; Supp. to Rev. Code, ch. 109, '{ 62, p. 1S7.
    III. He adverted to the point raised by the last bill of exceptions, whether the counsel for the defendants had not the right to open and conclude. This, he admitted, was not a point of any great moment, but he said it ought to be decided. *1. Robinson said, he should not controvert the proposition that there might be usury in other things besides money. The statute might appljr to loans of stock as well as of money. Thus, if the owner of stock shall authorize another to sell it and receive the proceeds, and take from the other a covenant to transfer back to the lender, at the expiration of a year, the same amount of stock, and to pay the lender the dividends in the meantime, and likewise take a separate bond for the principal and interest, so that the lender, were it not for the statute, might enforce either the agreement to return the stock and pay the dividends, or the obligation to pay principal and interest, this would be usury. For neither principal nor interest would be at hazard. The creditor would at the end of a year have a certain claim to that extent, with a chance of getting more if there should be a rise in the price of stock. White &c. v. Wright, 3 Barn. & Cress. 273; 10 Eng. C. E. Rep. 75. So if the obligation be that the borrower shall, at a future day, pajr the lender his principal or transfer to him a given quantity of stock, at his election, and in the mean time pay interest, here, as the creditor is sure of having at least his principal with legal interest, and has the chance of an advantage if the stock shall rise, it has been held to be usury. Barnard v. Young, 17 Ves. 44.
    On the other hand, if a party lends stock, which the borrower sells, and gives bond to replace the stock at a given time, and in the mean time to pay lawful interest on the sum produced by the sale, this clearly is not usurious. Forrest v. Élwes, 4 Ves. 492. In such case, if the stock were to rise, the lender might have more than principal and legal interest. Yet on the other hand, if it should fall, he would have less. The same principal would apply, if, m lieu of interest in the mean time, the dividends should be reserved by way of interest, for in this case, as in the last, the price of stock might fall and the borrower would then be a gainer. Bailey, J., in White &c. v. Wright, 10 Eng. C. L. Rep. 78. *The material circumstance is, whether there is any option reserved to the lender to be exercised in future. Where there is none, the law allows a loan of stock, to be replaced at a future day. Whether the quantity to be returned is the precise quantity lent, or be more or less, is immaterial. The shares stipulated to be returned, though more in number than those received, may turn out of no greater value at the time they are returned, than those received were at the time of receiving them.
    He referred to 1 Hawkins’ P. C. p. 614, to shew that the language of the statute of 12 Ann. ch. 16, was like that of Virginia, differing merely as to the rate of interest; and also to shew that the statute of Anne was like those which preceded it; and then referred to the decisions under the english statutes, cited in 1 Hawk. P. C. p. 615, $ 20, p. 616, i 23, 25, 26, 27, and p. 618, § 40. Most of these were cases in which the payment depended upon the return of a ship, or upon the life or death of a party ;* cases therefore, in which the time of payment might never arrive, and the lender, in consideration of this risk, had a chance of getting more than legal interest. The following cases were also referred to, coming within the same class. Shapley v. Hurrel, Cro. Jac. 208; Mastín v. Abdee, 1 Show. 8; Thorndike v. Stone, 11 Pick. 183; Earl of Chesterfield v. Janssen, 1 Atk. 339, 345, 348, 349; Plight v. Chaplin, 2 Barn. & Aid. 112; 22 Eng. C. E. Rep. 38; Eountain v. Grymes, Cro. Jac. 252; Matter of Naish executrix of Stewart, 7 Bing. 150; 20 Eng. C. L. Rep. 81.
    Another class was referred to, where more than legal interest is reserved, and where it may be regarded as certain that the time of payment will arrive, but in which this large interest is allowed because there is a risk and responsibility upon the creditor, which may cause his principal and interest to be abated and perhaps *entirely lost. Fereday v. Hordern, Jacob 144; 4 Cond. Eng. Ch. Rep. 64; Gilpin v. Enderby, 5 Barn. & Aid. 954; 7 Eng. C. E. Rep. 314.
    The remaining class referred to was like the case before the court, where the time of payment would certainly arrive, but it would depend upon the value of the commodity at the time of payment, whether what was agreed to be paid would be more or less than principal and legal interest. — cases in which the contingency justified the contract; a contingency of such a nature, that a portion, perhaps the whole, of the principal and interest might be lost. Maddock v. Rumball &c., 8 East 304; Tate v. Wellings, 3 T. R. 531; Pike v. Ledwell &c., 5 Esp. N. P. Cas. 164; Spencer v. Tilden &e., 5 Cow. 144; Holmes v. Wetmore, 5 Cow. 149, note; Cumming v. Williams, 4 Wend. 679; Hamlin v. Fitch, cited 5 Cow. 149. The first three were cases of stock, the next three, cases for the return of cows and sheep, and the last a case of military certificates.
    The court, he said, would understand that he did not contend, that where the form adopted was a shift to evade the statute, the contingency or risk would prevent the application of the statute. If there be a loan, —if there be a corrupt contract to take, directly or indirectly, above the value of six dollars for the forbearance of 100 dollars, then the contract is void, no matter what the shift or device. But these things, he contended, must be made out by the plea and the evidence.
    He stated the nature of the issues joined on the first and second pleas, and the finding on those issues, and said, that by the finding it was ascertained that there was no loan, at usurious interest, of money which the party originally had, nor of money proceeding from the sale of his. stock; and that the covenant was not a shift or device to evade the laws against usury either of the one kind or the other.
    *If the matter set forth in the third plea was usury, he said, every contract in Virginia for the hire of a slave was usurious. The slave, it was true, might die before the end of the year, and so the stock might become of no value. In the case of a slave hired, or a plantation rented, for more than six per cent, upon the value, the owner is deprived in the mean time of the privilege of selling, except subject to the tenancy. This is an injury for which ,he has a right to be compensated. In the case of stock, the injury is greater. During the year the stock might rise to a very high price, far greater than that which the borrower might have agreed to pay. Vet the former owner of the stock, no longer having it to sell, would be unable to get this advanced price. In many of the joint stock companies, a borrower might often, for 142 shares obtained immediately, agree to pay 172 a year afterwards, and yet pay no more in value than he received. Even in relation to the stock of the bank of Virginia, or Earmers bank, it seemed at present highly probable that 172 shares of stock would not bring in the market, twelve months hence, more than 142 shares now, with the addition of the interest in the mean time. Such a bargain as was made by Mitchell might therefore at this moment be advantageous to a borrower.
    The plea cannot be helped by the general allegation in the commencement, that it was corruptly and against the form of the act of assembly agreed &c. The agreement actually set forth is not against the statute, nor is it alleged to have been a shift or device to evade the statute. That the parties intended to secure more than the value of the stock at the time of the loan, with six per cent, on its value, or that the covenant was devised with intent to secure more, is no where alleged in the third plea. It is the fourth plea which avers, that the value of the 30 shares was well known to the parties, and that they were agreed to be paid as a premium for *the forbearance, with the intent of the parties to secure to the creditor upon the loan, more than the value of six dollars for one year for each 100 dollars. The court received this plea, and in receiving it has gone far enough.
    II. Robinson said, the matter relied on in the fifth and sixth pleas could not be made a ground of defence at law against a sealed obligation. Moor v. Bowmaker merely acknowledges the rule as to relieving bail. And Pain v. Packard, King v. Baldwin, and Samuel v. Howarth, are cases of instruments not under seal. Where a statute declares that certain facts shall make a contract void, it is clear that those facts may be pleaded and proved, whether the obligation be. under seal or not. This is the case under the statute against usury. So if the consideration be illegal and the obligation void at common law, it may upon common law principles be enquired into. But if the obligation be under seal and valid at the time of its execution, it I can, at common law, only be dissolved by being cancelled and surrendered, or by performance of the condition, or a release. Whether it appear on the face of the instrument that the party is a surety, or not, is immaterial. The cases of Bulteel &c. v. Jarrold, 8 Price 467 ; 3 Eng. Sxch. Rep. 422; Davey &c. v. Prendergrass, 5 Barn. & Aid. 187; 7 Eng. C. E. Rep. 62, and Ward v. Johnson, 6 Munf. 6, shew conclusively that the defence set up by the 5th and 6th pleas can never be made at law against a sealed obligation. The statute may certainly authorize an obligation to be discharged by that which would not have discharged it before; and then it may be shewn to the court .that such a case exists as comes within the statute. The act in 1 Rev. Code, ch. 116, § 6, p. 461, under which Wright’s adm’r v. Stockton was decided, is of this description. Sounder the statute, payment after the day, and before action brought, is equivalent to performance; and a judgment for a penalty, for relief *against which a party was formerly driven into equity, is now to be discharged at law by the principal and interest due. As to cases of fraud, the rule of Tomlinson’s adm’r v. Mason, 6 Rand. 169, is altered by the act of 1830-31, ch. 11, <j 62, p. 62. But the cases to which that act applies are plainly specified, and the specification of them will prevent its being extended to others. The complaint is not that more effectual relief can be had at law when the party is entitled to it under a statute, than when he is entitled under the doctrines of the common law, but the real complaint is that the party cannot be relieved at common law, when his whole ground of relief rests upon the doctrines of courts of equity.
    In this view of the subject, it was unnecessary to enquire whether the creditor would have been stopped from proceeding against the principal.
    III. Robinson said, that in criminal cases the right of being heard by counsel is very uniformly secured to the accused, in this country, either by the constitution or statute ; and if this right should be entirely withheld in opposition to the constitution or the law, he inclined to think that a verdict thus obtained ought to be set aside. But even in a criminal case, he should doubt whether an erroneous opinion as to the number of arguments would be ground to reverse a judgment. In a civil case, it was necessary not only that there should be error, but error which injures a party. He could not be injured unless the verdict rendered was against evidence. And if that had been the case, there would or might have been a motion for a new trial, and if it were overruled, then a bill of exceptions stating the facts. There is a material difference between a civil and criminal case, in this, that the accused has a right to get a verdict if he can, in opposition to the opinion of the court, and the court cannot set it aside.
    *Johnson, in reply, mentioned the strong resemblance between stock and money, asa thing to be lent; as strong, he said, as between the bank note and the silver dollar. It was dangerous to say that 'because stock might fall, usury could not be committed in it, when there was really a loan. He referred to Ord on Usury, pp. 1, 23, 25, 46, 66, 67; Comyn on Usury, p. 104; Atkinson v. Scott’s ex’ors, 1 Bay 307; Moore v. Battie, Amb, 371; 2 Tho. Co. Lit. p. 10, note E. ; Burglacy v. Ellington, Brownl. 191; Bedov. Sanderson, Cro. Jac. 440; Shep. Touch. 62; Browne v. O’Dea, 1 Sch. & Lef. 115; Gibson v. Eristoe &c., 1 Call 62. Nothing, he said, was better settled than that the reservation need not be in money. Where it is in any thing else, averments may be made to bring in issue the fact constituting usury. The cases cited from New York, in which the contracts were for cows and sheep, he argued, were held not to be usurious, because they were not loans but sales. He admitted that there is a mode of depreciation belonging to stock, which does not belong to money. The market price regulates its value, and stock also diminishes in value as the term of a charter draws to an end. Where the transaction is a loan of stock, fluctuation in value need not be taken into view, because a party, by lending instead of selling, shews it to be his purpose to keep it in kind, and doing so, must hazard the rise and fall. But the depreciation which arises from the approaching termination of a charter ought to be taken into the estimate. This however is trifling; — ■ generally nothing, if the institution be well managed.
    He mentioned and commented on the case of Steel v. Boyd, decided at Lewisburg in July 1835 (since reported in 6 Leigh 547) ; and upon the question of practice, referred to 3 Black. Com. 366; 1 Tidd 908.
    
      
      Usury — Hazard of Principal — Effect.—The principal case holds that, a contract to take, for the loan of 142 shares of bank stock for a year, 30 additional shares, is not void under the statute of usury; since the 172 shares at the time they are to be returned may not be of any greater value than the 142 shares were at the time they were lent. For this proposition the principal case is cited and followed in State Bank of N. C. v. Cowan, 8 Leigh 250, 255; foot-note, to Gibson v. Fristoe, 1 Call 62.
      In City of Lynchburg v. Norvell, 20 Gratt. 610, it is said, the Question arises,' in su'ch cases, is this hazard encountered by the lender, areal substantial hazard, or is it merely colorable? If the lender has made his agreement so that it is a colorable hazard he is secure from loss and has a chance of gain; thus by taking away the contingency deprives the transaction of its legality. Citing Steptoe v. Harvey, 7 Leigh 501. The principal case is cited for this proposition in Smith v. Nicholas, 8 Leigh 358, which case holds that, where upon a loan of money, the lender, besides his principal, contracts to receive, in lieu of interest, something which may be worth more than six per cent, per annum, though it may perhaps prove to be worthless, as the dividends on bank stock, the contract is usurious. The principal case is also cited in Brakeley v. Tuttle, 3 W. Va. 134. See monographic note on “Usury” appended to Coffman v. Miller, 26 Gratt. 698.
    
    
      
      Bonds — Extension of Time of Principal by Parol Agreement — Effect as to Surety. — Where an obligee of a bond executed by a principal and sureties makes a parol agreement with the principal, without the consent of the sureties, whereby he gives further time to the principal, the sureties are thereby discharged in equity, but not at law. Sayre v. King, 17 W. Va. 573, citing Steptoe v. Harvey, 7 Leigh 501; Ward v. Johnson, 6 Munf. 6. For this proposition the principal case is cited in Glenn v. Morgan, 23 W. Va. 470; Merchants’ & Mechanics’ Bank of Wheeling v. Dorsey, 9 W. Va. 382; Harnsbarger v. Kinney, 13 Gratt. 521; Devers v. Ross, 10 Gratt. 253, and note; foot-note to Baird v.Rice, 1 Gall 18; foot-note to Wright v. Stockton, 5 Leigh 153. The principal case is also cited in Shepherd v. Wysong, 3 W. Va. 52. pee monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
      Argument of Counsel — Failure to Ailow Defendant to Open and Close — Effect in Appellate Court.— Though it has been decided that where the general issue is not pleaded, but special matter, the proof of which rests on defendant, it may be proper for the trial court to allow his counsel to begin and conclude the argument, yet the failure of that court to allow him so to do, will not suffice for the appellate court to set aside the verdict, unless it appears that the verdict is contrary to the evidence, the same being certified. Valley Mut. Life Ass’n v. Teewalt, 79 Va. 427, citing Steptoe v. Harvey, 7 Leigh 501. See also citing the principal case on this question. Young v. Highland, 6 Gratt. 18, and note; Sammons v. Hawver, 25 W. Va. 680. See monographic note on “Arguments of Counsel” appended to Coleman v. Com., 25 Gratt. 805.
    
    
      
      London ecli. of 1824. by Curwood. — Note In Original Edition.
    
   *BRPCKENBROUGH, J.

By the statute it is declared that the taking on any contract, directly or indirectly, for loan of money, wares or merchandizes, or other commodities, above the value of six dollars for the forbearance of one hundred dollars for a year, shall be unlawful, and all contracts on which a higher interest is reserved are declared to be void.

It has been long ago decided that where, on a loan of money, there is a hazard that the principal sum lent may be lost, it is not usury to contract for a higher than the legal rate of interest, because, whilst on the one hand the lender may by some contingency receive greater interest than the law allows, yet on the other some event may happen that may altogether deprive him of his money. Comyn on Usury p. 21; 1 Atk. 340. In MastIn v. Abdee, 1 Show. 8, the court say — '"When there is a hazard that the plaintiff may have less than his principal, it is no usury.” And in Gibson v. fristoe, 1 Call 81, judge Pendleton says —"‘If the principal or any considerable part be put in risque, it is not usury.” The restriction on the rule is, that where there is only a slight contingency, or the hazard is merely colourable, then the case is taken out of the rule. Comyn, p. 31. The same rules prevail as to the loan of any other commodity, as well as money. If any chattel be loaned, for the forbearance of which a greater sum or greater value be taken or reserved than the legal rate of interest, it is unlawful. But if the principal be hazarded, or if the commodity stipulated to be returned may be less in value than that loaned, although it is more in quantity and amount, such contract is not unlawful.

The researches of the counsel for the ap-pellees have brought before us several cases from a sister state, in which it has been decided that upon the loan of a certain number of animals, such as cows or sheep, and a promise to return double the number in three or four years, the loan is not obnoxious to the charge of usury, *on the ground that it is uncertain, at the time of the loan, what will be the value of the animals to be returned several years afterwards; and that although the lender might probably have made a profitable bargain, yet he might have lost some part of the capital itself. Spencer v. Tilden, 5 Cow. 144; Holmes v. Wetmore, Id. 149, note; Cummings v. Williams, 4 Wend. 679. And in Hamlin v. Fitch, Kirby’s Conn. Rep. 260, the court, in illustrating the matter then before them, sasr— “A loan of one hundred bushels of salt in 1783, when it was at twelve shillings, to repay double the quantity at the end of a year, when it may be worth but four shillings, would not be within the statute, be the price what it might at the end of the year.” And the reason given for this opinion is a sound one. “To bring a contract within the statute and the mischief it was made to prevent, it must be clearly for the repayment of a greater value than the amount of the loan with an advance of six per cent, per annum. That it be of a greater quantity, though of the same kind of article, is not sufficient. If the article be of a fluctuating value, it may not be at the time of repayment worth more or so much. ”

With respect to contracts for replacing stock at a future day according to the then state of the market, it seems to be now settled, that if the lender be not certain whether by the stock’s being replaced at the given day he shall be a loser or a gainer, any gain which he may obtain by the replacing will not taint the agreement with usury. Comyn, p. 114; Tate v. Wellings, 3 T. R. 531; Pike v. Ledwell, 5 Esp. N. P. C. 164; Maddock v. Rumball, 8 East 304. To which may be added the above case from Kirby’s Conn. Rep. 260. But on the other hand, if the lender has so made the agreement that he is secure from loss and has a chance of gain, this, by taking away the contingency deprives the transaction of its legality. Barnard v. Young, 17 Ves. 44.

^Tested by these principles, I think there can be no doubt that the third plea tendered by the defendants was properly rejected by the court. It does not aver that the contract to replace 142 shares then lent, by 172 at the expiration of a twelve month, was intended as a shift to evade the statute, nor that by the contract the lender was secured from any loss. The chief reliance of the pleader seems to have been that the 142 shares lent, and the additional 30 shares to be returned, were each of them of the value of 100 dollars at the date of the loan ; whereas it is the uncertainty of the value of the stock at the time of its replacement, arising from the fluctuation in the price of the article, that is the turning point-on which the question depends whether the loan be usurious or not. On the same principle, I am of opinion that in the instruction which was refused, and in that given, as set forth in the bill of exceptions, no error whatever was committed by the court.

The appellants contend that the court erred in rejecting the fifth and sixth pleas. Those pleas aver that Steptoe was only surety for Mitchell, (thereby departing from the terms of the covenant, which on its face shews that the covenantors were all principals) ; and then aver that Mitchell the principal, at the time when the shares became due, made a new contract with the covenantee, by which he extended the time for replacing the said shares. This brings up for adjudication one of the questions decided in Ward v. Johnson, 6 Munf. 16. In that cáse, it appeared on the face of the obligation that Ward was surety for Long the principal obligor, and yet it was decided that the defence, that the obligee had given time to the principal by taking a confession of judgment with a stay of execution, by which the -surety was alleged to be discharged, was not one that could be made at law, however it might be in equity, and a plea setting forth such defence was overruled on demurrer. That decision is supported by the case of *Davey v. Prendergrass, 5 Barn. & Ald. 187. I think we should not disturb the decision of Ward v. Johnson.

The last exception taken to the opinion of the court relates to the order of proceeding in the trial of causes before a jury. It is undoubtedly the ' practice in England, that he who holds the affirmative shall open the case, and close the argument to the jury. 3 Blacks. Com. 366. In this state, the practice has varied. In some of the circuits the english rule prevails; but in the greater number the plaintiff in all cases (except in writs of right) is allowed to begin, and the general court has recommended that to be the rule in all- the circuits. I have thought that the english rule was the best: but however that may be, I do not think that the adoption of the other rule is any ground for reversing a judgment which is otherwise correct. I am for affirming the judgment.

CARR, J.

Our act declares ‘ ‘that no person shall, upon any contract, take directly or indirectly, for loan of any money, wares or merchandize, or other commodity, above the value of six dollars for the forbearance of 100 dollars for a year” &c. This statute being copied, in its definition of usury, «from an act of parliament, we are in the constant habit of referring to english decisions, upon any question as to its meaning and construction. Prom these decisions we learn, that there are a good many cases in which more that the value of six per cent, is reserved on the money or other thing lent, which yet are not considered as within the mischief or the meaning of the statute; cases, for instance, of bottomy or respond-, entia, and post obit securities; all cases indeed, where the principal advanced is not to be repaid at all events, but is on a hazard or contingency, provided such hazard and contingency be real, and not col-ourable merely. Ord, in his treatise on usury, p. 46', has this remark: “As the price of stock is in continual "^fluctuation, the contingency respecting it has been held to exempt from the statutes of usury, agreements to transfer a specific amount at a specific future day, which, without such contingency, would be usurious.” In support of this position he cites several cases: and many others may be adduced. In Maddock v. Rumball, 8 East 304, Rumball was indebted to Maddock a certain sum, for which he was sued; but being unable to pay, and Maddock wishing to invest the money" in three per cent, stock, it was agreed between them, in consideration of Maddock’s forbearing his action and demand one year, that Rumball should transfer to him, at the end of the year, so much of that kind of stock as the sum due at the time of the agreement would purchase, and in the mean time should pay Maddock the interest and dividends accruing on such stock; which it appeared upon calculation, produced more to Maddock than his debt and five per cent, interest. But all the court agreed that this was not usury, as the amount of the sum to be paid by Rumball depended upon a contingency; and if the stocks had fallen within the year, Maddock might have received less than his principal and legal interest would have amounted to. They considered this transaction as resting on the same footing with an agreement to replace stock lent; which, though once contended to be usury, if more than the principal and legal interest were thereby obtained, had been long settled to be legal. In Pike v. Ledwell &c., 5 Esp. N. P. C. 164, M. wishing to advance his son, agreed, on the 5th May 1801, to dispose of ^"400. stock to P. for ^160. to be transferred to him when his son should arrive at the age of 21 years, which would be on the 11th February 1804. The value of the stock when the agreement was made was proved to be /240. It was contended on the part of M. that this agreement was usurious. P. had paid ^160. only, for stock worth ;£240. He got ^80. by his bargain, and the dividends in the mean time. But lord *Ellenborough said — “Whatever remedy M. may have in equity on the ground of this being a catching bargain, he has none at law; contingency in the thing purchased is incompatible with the idea of usury, in which the principal must always be certain. It is admitted, that if the stock when transferred to P. would be worth but ^160. it would not be usury ; that the stock would suffer that most extraordinary depreciation was very improbable, but still it was within the reach of possibilitj’". I cannot say that there was not some contingency in the transaction; and therefore the contract was not usurious.” I consider this case peculiarly strong and apt to the point before us. It shews first, that it is the uncertainty of the value of the stock at the time of delivery, rather than the value at the time of sale, which is to be considered ; and moreover, that where there is any real contingency, the contract is not usurious. The case of Forrest v. Elwes, 4 Ves. 492, was thus — Forrest applying to Elwes for a loan, he transferred to him stock, upon bond to return the stock six months after date, and in the mean time to pay interest at live per cent. The stock not being replaced, and being depreciated, the court decreed that the obligee was entitled to the value of the stock at the time of the transfer, with interest to the date of the report. I notice, this case, simply to explain the reference to it by the master of the rolls in Barnard v. Young, 17 Ves. 44. This last was a contract for repayment of a debt with legal interest, or, at the option of the creditor, to transfer so much stock as it would have produced at the day it was payable. Sir William Grant observed —.“I am of opinion that the contract is usurious; as it reserves the capital with legal interest upon it, and likewise a contingent advantage, without putting either capital or interest in any kind of risk. The case of Forrest v. Elwes differs from this in the very point in which I conceive the usury to consist. In that case, the objection” (of usury) “though at first made, *was properly given up; as, though it is true, if the stock had risen, the lender might have had more than principal and legal interest, 3ret on the other hand, if it had fallen, he would have had less; as he had no option to have stock or money, but the borrower could have discharged himself by merely replacing the stock. Here the lender is at his election 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 had the chance of an advantage if stock rose. It was usurious to stipulate for that chance.” Here we find this eminent judge declaring, that in contracts of this kind there is no usury where each party takes the hazard arising from fluctuation in price; and that the very point in which usury consists, is a provision by the lender against that fluctuation. In the case before us, there was no such provision ; and surely every one must say, that from the very nature of the subject it was liable to the fluctuations of the market. The case of White v. Wright, 3 Barn. & Cres. 272; 10 Eng. C. L. Rep. 75, decides the same principle, on the same ground of the option reserved by the lender of the stock. In the matter of Naish ex’x of Stewart, 7 Bingh. 150; 20 Eng. C. L. Rep. 81; Stewart and Pelham, in consideration of ,£1000. paid to Stewart, granted to Holland an annuity of £'120. for four lives, and covenanted that in 30 days after the expiration of the third life, they would insure the £1000. to Holland ; and the grantors executed a power of attornejr to enter up judgment for £2000. but none was entered. A rule nisi was obtained to set aside the power of attorney, on the ground that it was void for usury. It was contended that this was not usury, because the principal was in hazard, as the last two lives might drop at once; or the last life might drop within the thirty days, and before the insurance was effected, and in such case the covenant would be of no *avail. And the court decided that it was not usury, because of the hazard. Tindal, C. J., said — “The question is whether an advance of money, under the circumstances now laid before the court, comes within the statute of Anne, as a loan of money on which a larger rate of interest than five per cent, has been reserved? The general rule is, that there is no loan where the principal is placed in hazard, because a loan contemplates repayment of the money lent: and where there is no loan, it.is matter of agreement between the parties, on what terms the money shall be advanced.” The court also lay some stress on the fact that there was no affidavit imputing to the parties the intention of a loan, or shewing that the principal had never been put in hazard. I will cite but one more case on this point. In the case of Gilpin v. Enderby, 5 Barn. & Ald. 954; 7 Eng. C. L. Rep. 314, a deed was executed between the parties, by which they covenanted to become partners in the business of army clothiers, for ten years, and that Enderby should advance £20,000. as part of the capital for carrying on the business, and Gilpin should find a like sum; that Enderby should during the continuance of the partnership, have out of the profits, if sufficient, or if not, out of the capital, £2000. yearly for his share of the profits. Gilpin then covenanted, that on the determination of the partnership by effluxion of time, the sum of £20,000. should be returned to Enderby, and that Gilpin should guaranty all debts and pay all losses. At the end of the ten years Enderby sued on this deed for the £20,000. and Gil-pin pleaded the statute of usury, — that the £20,000. was a loan for ten years, at the premium of £2000. a year, and the deed a shift and device to evade the statute. Replication, that the deed was executed for good and lawful consideration, and not by way of shift &c. Upon this replication issue was taken, and the jury found a verdict for the plaintiff, thus negativing the corrupt agreement. A judgment *was rendered on this verdict in the common pleas, and a writ of error taken to the king’s bench, upon the ground that the deed manifestly exhibits a case of usury within the statute, and ought consequently to be pronounced void in law. Abbott, C. J., delivered the opinion of the court. He said — ■* ‘By the execution of this deed, Enderby undoubtedly made himself answerable as a partner to all strangers, though he might not be answerable as between himself and Gilpin. And if the deed discloses the real facts and the intention of the parties to it, this is not a case of a loan by Enderby to Gilpin, but a contract of partnership between them of a peculiar kind. If the deed does not disclose the real facts and the intention of the parties, but was executed only as a contrivance to cover a loan of £20,000. for ten years, at ten per cent, the deed was undoubtedly void; but this is a fact that ought to have been found affirmatively by a jury, to enable the court thereupon to declare the deed void. No such fact has been found, and in the absence of such finding-, we must consider the deed as speaking the language of truth. And so considering it, we cannot pronounce it void.” Now, if we compare the case presented by this third plea, with the cases cited shewing that the fluctuation in price, and hazard or contingency of other kinds, will take contracts and loans out of the statute, we must surely agree with the court that that plea presented no bar to the action: for it is a simple case of the loan of 142 shares of stock for twelve months, to have 172 returned for the forbearance; with no provision securing the lender against the fall of stock, and no averment that it was meant as a shift or device to evade the statute, the real intention being an usurious loan. The plea then was properly rejected.

On the trial, the defendants moved the court to instruct the jury, that if they believed the consideration of the covenant was the 142 shares of stock lent by Harvey *to Mitchell for twelve months, of the value of 100 dollars each at the date of the loan, and that the 30 shares additional, agreed to be paid, were reserved in consideration of the loan and forbearance of the 142 shares, and that the value of the said 30 shares was, at the date of said loan, greatly above six per cent, on the value of the 142 shares, to wit, of the value of SO dollars per share, though deliverable twelve months after, and that both parties so understood it, and intended to secure to the lender a compensation of the value aforesaid, — then, upon the third plea on which issue was joined, the defendants were entitled to a verdict; and this without any reference to the question whether the said Harvey might gain or lose, by the rise or fall of the stock. The court refused to give this instruction; and very properly, I think. Nor if the cases I have cited prove any thing, it is that the question of hazard, the consideration of the rise and fall of the stock, is the very point which takes the contract out of the statute. The court, I think, was, upon the same ground of reason and authority, equally correct in the instruction which it did give the jury.

I will turn now to another point in this complicated cause. A fifth and sixth pleas were tendered by the administrators of Steptoe, stating that their intestate executed the covenant as a surety merely, and that afterwards, without his knowledge or consent, a new contract was entered into between Harvey and Mitchell the principal debtor, by which, for a new consideration, further day of payment was given, and by which also the sureties were discharged. These pleas were objected to by the plaintiffs, as presenting no legal bar to their claim; and the court being of that opinion rejected them: to which the defendants excepted. It will be recollected that in the covenant declared on, no distinction of principal and surety is made: all are on its face principal obligors. In Ward v. Johnson, 1 Munf. 45; 6 Munf. 6, this very point was made; in the first place, by motion *to the court below. This, court decided, that if the facts could avail the defendant at all at law, it must be by way of plea: and the cause was sent back. It came up again, with the plea regularly pleaded and demurred to, so as to present the naked point to the court. The cause was elaborately argued by Mr. Wickham and Mr. Wirt, than whom we had no abler counsel: the cases of the discharge of sureties by such new contracts were cited: and the court decided unanimously, that this was no discharge at law, though it might be, and the majority seemed to think it would be, a discharge in equity. This decision was in 1817, and has never been questioned since, that I know of; and I am for standing by it. There is a later case upon this point — an english case — Davey v. Prendergrass, 5 Barn. & Ald. 187, 7 Eng. C. L. Rep. 62. There, upon debt on a surety bond executed by the defendants, conditioned to pay, within one month after 'demand, such balance not exceeding ^500. as upon settlement of accounts S. P. and J. P. should appear to owe the plaintiff, the defendants pleaded a parol agreement made without their privity, giving time to the principal debtors 1o pay by instalments &c. To this plea there was a demurrer, which was sustained, upon the general rule of the common law, which requires that the obligation created by an instrument under seal shall be discharged by an instrument of equal validity. ‘‘The operation of that rule” (says Abbott, C. J.), “is indeed sometimes such as to make it imperative upon a court of equity to interpose and grant relief; but it by no means follows that the rule of law is to be broken down, because a court, having jurisdiction of another kind, will interpose where there is a particular case in which the rule of law may be found to operate harshly. There is great objection to a court of law taking upon itself to act as a court of equity; because they have not the means of doing that full and ample justice which the particular case may *require.” In another part of his opinion he shews the distinction between the case before him, and others in which the courts of law have taken notice of this defence of the surety. “Bills of exchange” (he says) “stand upon a different footing: there the law merchant operates, and the courts of law decide upon them with reference to that law. Guaranties for the payment of debts are not, in general, instruments under seal, and there is no strict technical rule which, as to them, prevents a court of law from looking at the real justice of the case. The cases of bail and replevin bonds are provided for by acts of parliament, giving to the courts an authority over them. A recognizance of bail stands upon a different ground from bail bonds, as to the jurisdiction of the court. • There the jurisdiction is not founded upon statute, but upon a general authority in the court to see that an improper use is not made-of its own records.” The court were right, then, in rejecting these pleas also. With respect to the last exception, taken to the decision of the court refusing to the counsel of the defendant the opening and conclusion of the argument to the jury: it is a question which can have no influence on the opinion of this court, in passing upon the final judgment of the court below. Suppose the defendant’s counsel ought to have had the opening and conclusion: how can we ascertain the effect of the refusal? The verdict was either contrary to the evidence, or it was not: if it was, that would be a sufficient reason for a new trial: if it was not, ought a new trial to be granted because the defendant’s counsel had not the opening and conclusion? In the case before us, no new trial was asked, no objection taken to the verdict as being against evidence. It is not necessary then, in this cause, to give an opinion on this point; and I question whether it might not be better to leave the courts below and the general court to settle the practice as to it.

I am for affirming the judgment.

BROOKE, J.

I concur in affirming the judgment.

TUCKER, P.

The first question in this case is as to the discharge of the surety by the contract for indulgence, and the competency of this defence in a court of law. That the arrangement set forth in the plea would be such as to tie up the hands of the creditor, and of course to exonerate the surety, I am inclined to think; but I am satisfied that the defence can only be made in equity. This has been decided both in our own courts and in Westminster hall; and if the question is to be settled by authority, it has been so settled. In Ward v. Johnson, 6 Munf. 6, the surety to the bond pleaded that the creditor had taken a confession of judgment from the principal, with a stay of execution without ’his consent, to which plea the plaintiff demurred, and judgment was given in his favour. This court affirmed that judgment; admitting that the new contract entered into was a discharge in equity, but denying that it could be pleaded as a discharge at law. They declared that when an obligee covenants not to sue one of two joint and several obligors, and much more when he only covenants not to sue for a limited time, the covenant does not amount to a release, and the obligee may still sue the other obligor at law. In this case it is observable also, that the surety appeared to be such on the face of the bond. In the case of Davey & others v. Prendergrass, 5 Barn. & Ald. 187, in debt on a surety bond conditioned to pay such balance as upon settlement should appear due from Prendergrass to the plaintiffs, the defendants pleaded that the plaintiffs had given time to the principal debtors to pay by instalments, without the sureties’ assent. This plea was demurred to, and was adjudged bad; the court being clearly of opinion that the de-fence could not be made at law, but was only proper for a court of equity. The opinions of all the judges present were full to the point, and sustained by *the strongest reasoning. I must content myself with referring to them, as they are too much in detail to be transcribed here. They cite as a decisive authority, moreover, the case of Bulteel v. Jarrold, in the exchequer, not at that time reported, but now to be found in 8 Price 467; 3 Cond. Eng. Exch. Rep. 422. The question may then be considered as incontrovertibly settled in England.

At the last term of the Eewisburg court of appeals, the question how far this de-fence could be made at law, came under consideration in the case of Steele v. Boyd.* That however was the case of a delivery bond, and the court considered the party entitled to avail himself at law of the defence. I beg leave to read the opinion which was delivered on that occasion as containing my own views of the case, in which I understood my brethren as concurring. [Here the president read the opinion on this point, delivered in the case of Steele v. Boyd.] In this case, then, it seems to have been the opinion of the judges, though certainly not directly upon the point decided, that in debt upon bond the surety could not plead this equitable discharge.

The case of Wright’s adm’r v. Stockton, 5 Leigh 153, affords, however, an exception to this position. In that case there were four sureties. Three of them had given the notice authorized by the act of assembly, requiring the creditor to proceed against the principal, and were discharged by his failure. The fourth pleaded this, matter in his own discharge, and this court sustained the plea. I am satisfied that we did not err in that decision. A discharge' by statute must of necessity be a legal de-fence, and is of course proper matter to be' pleaded at law. It is equivalent, when it proceeds from the act of the creditor, to a release, and may therefore well be pleaded ;. and the court, considering the act which released three of the sureties as discharging *the fourth also, sustained his plea of that discharge. That plea might even have been pleaded, had the action been brought against the principal as. well as the surety; and judgment might have been rendered upon it for the surety without impeding the judgment against the principal, both upon general principles, 2 Rand. 174; 1 Chitty 32; 1 Wms. Saund. 207, in note, and upon the express provision of the statute 1 Rev. Code, ch. 116, § 8, p. 462, which declares that the rights and remedies of the creditor against the principle debtor shall in no wise be affected by the act. But they certainly would be so affected, if the creditor was to be debarred of his judgment in the joint action against the principal, and compelled to commence another action against him alone.

I am not aware of any other decision bearing upon this question ; but those which have been cited appear to leave no doubt upon the subject, as far as the matter can be settled by authority. They admit, that where the creditor has debarred himself from proceeding at law, by any act which, upon the principles of a court of law, arrests his right to go on, the matter may be pleaded at lawn Such is the taking judgment with stay of execution, or the accepting a new contract in discharge of the judgment, 1 Call 18, or the release of the body after the execution has once been levied on the principal. They admit that the defence at law may be made in all actions of an equitable .nature; and therefore in actions of assumpsit; in summary motions, in which the proceeding is always equitable; and even upon promissory notes and bills of exchange, which being simple contract debts, in which the party is permitted to go into the consideration, the question of discharge is always, of course, vital and important in deciding the question of liability. ’ They admit too, for the reasons given in Davey v. Prendergrass and Steele v. Boyd, that the' defence may be made in the cases of bail and forthcoming *bonds, since these constitute a part of the proceedings in the cause, over which the court must exercise its control in all its ramifications. And lastly they admit that where the surety has proceeded according to the statute, he may plead that matter in his discharge, because the statute declares that the creditor shall forfeit his rights against the surety, if he does not comply with the requisitions of the notice. But they do not admit that the surety may plead merely equitable matter to debt upon bond; or that in a court of law, in such an action, one obligor would be permitted to plead that he is but a surety, and that arrangements have been made by the creditor with the principal which would induce a court of equity to tie up his hands, although they would offer no bar to his proceeding according to the rules of a court of law. Thus a covenant, upon good consideration, not to sue for a given time, would be enforced in equity without doubt, and thus equity would tie up the creditor’s hands. Yet it has been solemnly decided in Ward v. Johnson, that a covenant not to sue cannot be pleaded at law, in bar of the action against the surety. Could it have been otherwise decided, without obliterating every barrier between the two jurisdictions? And if this distinct, direct and definite legal contract could not be so pleaded, how could we ádmit a defence resting upon the loose and indefinite grounds which are often made the foundation of equitable jurisdiction?

It is said indeed, that -there is as much reason for admitting the defence in the action on the bond, as in the other cases above mentioned, and that no greater difficulties will arise in administering the principles of equity in the one than in the other. Be it so: yet the same thing may be said of the other distinctions in favour of bonds, which have been sustained by the legislature against every assault. It is enough for us to say what the established course of adjudication is, until the ^legislature chooses to change the law. It is not for us to change it. Least of all, should I be disposed to see it changed so as to set the courts of law to speculating upon what a court of equity would do in a given case. Thus the surety pleads a transaction which does not tie up the creditor’s hands at law, according to the principles of the law tribunals, but alleges that a court of equity would tie them up. In deciding then upon this plea, the court of law must undertake to say what a court of equity would do, and act accordingly. I cannot think that such a proceeding can either be sustained by authority or supported by reason, so long as we maintain the distinct characters of the two jurisdictions. Upon the whole therefore, I am of opinion that the fifth and sixth pleas of the defendant in this case were properly rejected.

We come next to consider the questions involving the inquiry whether the transaction was or was not usurious and void.

The first question as to this matter refers itself to the rejection of the third plea. It was, I think, properly rejected. The statute of usury is a highly penal act, and it is therefore proper that whoever is brought within its penalties, should be brought also strictly within its provisions. Its terms are indeed very broad and comprehensive, and it is therefore difficult to commit the offence without falling within its grasp: but for the same reason there is less ground for a liberal interpretation, since, even construed according to the letter, it is sufficiently sweeping to embrace every case where the object of the parties is shewn to be usurious, and the transaction is but a shift to evade the statute. The courts too, for a like reason, have always required that the defence of usury should be pleaded with the greatest strictness, and the usurious contract set forth with certainty and precision. If the defendant succeeds, the lender loses his whole debt, whereas if he, fails at law in his proofs, *he . may still resort in equity to the lender’s conscience, and obtain relief against the usurious gain. By this last proceeding, justice is effected between the parties: the debtor is forced to pay what is due, and’ the lender disgorges his ill gotten gains, or is disappointed of the victim around whom he had been artfully winding his toils. These considerations presented themselves verv forcibly to our minds, in considering the case of Crenshaw’s adm’r v. Clark and others, 5 Leigh 65, and they are not inapplicable in this case, whether the attempt is to get rid of a bet of between fifteen and twenty thousand dollars on the plea of usury. The defence, it is true, is on the part of the representatives of a surety, and does not therefore involve the moral obliquity of a complaint of extortion, preferred by a party who is willing to pocket ten times the amount of his adversary’s money, if he can effectuate his purpose by the assistance of the law. But still it is a defence which is to deprive the plaintiff of what is justly his due, and what the surety guarantied to him.

With these views, let us proceed to consider the plea. We must confine ourselves to its face, without looking to any other part of the case to influence our opinions. By the statute it is declared “that no person shall, upon any contract, take directly or indirectly, for loan of any money, wares or merchandize, or other commodity, above the value of six dollars for the forbearance of one hundred dollars for a year,” &c. To constitute the offence then, under this act, the lender must receive, or contract to. receive, above the value of six dollars for forbearance for a j7ear. If he contracts to receive what at the end of the year may not be of the value of six dollars, he does not commit the offence. If I lend one hundred dollars when wheat is worth one dollar per bushel, upon contract to receive my money at the end of the year, wjth seven bushels of wheat for the forbearance, it would not necessarily be usury, because peradventure the seven ^bushels when delivered may be worth less than six dollars, and theréfore it cannot be truly said that I have contracted to receive above six dollars in value. No court therefore could pronounce such a contract to be usurious; though if it were set for'th in the plea, with proper averments that it was a shift to evade the statute, a jury might find it usury. Nor before that tribunal facts might appear, which might clearly shew that the reservation of interest in wheat was but a contrivance; that the parties well knew that the seven bushels of wheat would be worth more than six dollars value at the time it was to be'paid. This would be evident, indeed, where the reservation is of a great amount. Thus, if twenty bushels of wheat were reserved as the interest of 100 dollars, though the court could never pronounce it usury, because it cannot judicially know that at the end of twelve months it might not be worth less than six dollars, yet the jury, whose province it is- to ascertain facts, may know and may decide, that according to all probabilities the twenty bushels of wheat would be worth more than six dollars, and that the contract, therefore, was but a shift to evade the statute. The distinction arises out of the theoretical incapacity of the court to ascertain any fact or to judge of any motive, and the power of the jury to ascertain every fact and •ferret out every motive. A plea of usury therefore should, on its face, either present such facts, “with certainty to every intent,” as in themselves distinctly amount to an agreement to receive more than the value of six dollars for the loan of 100 for a year; or it must state the facts with such necessary averments of an intent to evade the statute, as that a jury, upon the trial, might decide that the agreement was in substance a contract for usurious interest, and a shift to evade the operation of the law. Now, the rejected plea in this case is defective in either view. Take it as professing to make out a complete case of usury from the facts themselves, and it is defective; *for it alleges “that the loan was of 142 shares, to be returned with 30 shares more, worth at the time of the contract 100 dollars.” But non constat what they would be worth when they were to be received; therefore non constat that the lender would receive more than six per centum. The court cannot estimate the value, which is in its nature fluctuating; and without averments that the parties well knew that the shares would be worth more at the end of the year, and that they corruptly agreed upon that reservation as a shift to evade the statute, the court cannot see that the transaction amounted to usury. I consider the plea, therefore, essentially defective in wanting such an averment. It is averred, indeed, that the 30 shares were then worth 100 dollars. But as they were not then to be received, their value at that time was immaterial. If I lend 1000 dollars, and for the forbearance receive at once 100 bushels of wheat, when wheat is worth a dollar, or a horse worth 100 dollars, it is usury. But if I contract to receive 100 bushels of wheat, or the same horse, a year hence, as my premium for forbearance, I may get less than six per cent, for my money, as the wheat may fall in value, or the horse become worthless. It is then, to the time appointed for the receipt of the premium, and not to the date of the contract, that we must look to ascertain the value of the premium; and as in this plea the probable value of the 30 shares at the end of the year is not set forth, together with the proper averments of the shift and evasion, the plea is substantially defective, and was properly rejected.

The fourth plea corrects the defects of the third, by averring that the 30 shares, “though to be delivered twelve months after, were then worth 90 dollars cash, that the value was well known to the parties, and they were agreed to be paid as a premium, with intent to secure usurious interest.” This, I think, was a good plea; for though the price of the stock was fluctuating, yet if so *much was reserved as to render it morally certain that more than six per cent, would be received, a jury would be justified in finding the usury. Were it otherwise, a loan of 100 shares of stock to be returned in a year, with 100 more shares as a premium, could not be brought within the penalties of the statute. It would indeed be to repeal the statute, if this were so.

It remains then to examine the instructions moved for and refused, and those given, upon this plea. I am of opinion that the instructions asked for were rightly refused. Without scanning them throughout, it is sufficient to advert to one point. The court is asked to instruct the jury, that if the 30 shares deliverable twelve months after date were worth at the date of the contract at least 50 dollars per share, the transaction was usurious. Now if those shares were worth only 50 dollars, the other 142 also could only have been worth 50 dollars. And thus Harvey would have lent 142 shares, then worth 14,200 dollars, to have 172 shares returned to him twelve months afterwards, worth at the same time only 8600 dollars; thus losing near 6000 dollars, instead of securing usurious gain. The instruction asked for could not then have been proper.

Then, as to the instruction given. It is in substance, that the jury must be satisfied that there was an agreement for an excessive premium, and that to secure such excessive premium it was covenanted that the borrower should give the thirty shares of stock as an equivalent. The court further said, that if the jury believed that the loan was made without stipulation as to the value of the shares when they were to be returned, each party speculating upon the greater or less value of stock at that time, the transaction was not usurious. I can perceive no error in this instruction. The law does not forbid contracts of hazard, where that hazard is real and not merely colourable. Loans of articles of fluctuating value, to be returned in kind, are not usurious, *though a greater quantity than six per cent. of the like property is to be paid for the use of the property for one year. Thus if I lend or sell 1000 bushels of wheat, or 100 barrels of flour, to have 1100 bushels of wheat or 110 barrels of flour returned at the end of the year, there may be no usury. It may be; a mere contract of hazard, which is not forbidden by law, and which is of daily occurrence in fair commercial transactions. But if the hazard is merely col-ourable, — if it is alleged in the pleading, and appears satisfactorily to the jury, that in truth and in fact the property to be returned would, upon every reasonable calculation, greatly exceed the legal rate of interest, and that the arrangement was but a shift, — the transaction would be held to be usurious. Thus if I lend 1000 bushels of wheat, to have 5000 at the end of the year, it must at once be obvious, that under any probable state of the market, the quantity returned must exceed the legal rate of interest. So too with stock. The loan of 100 shares, on the terms of 200 to be returned in twelve months, might fairly be averred to be a shift, and I should think a jury might fairly infer it to be so. Indeed, in this very case, the jury might have drawn such an inference: but it is by no means a necessary inference. Had a loan of 100 shares of United States bank stock been made in 1818, for 140 shares to be returned in twelve months, each party merely speculating upon the probable rise or fall, the loan would neither have been usurious, nor profitable to the lender, since stock was then worth 150 dollars for 100, and fell in a single year, I think, to par.* In like manner a sale of certificates at the price of ten shillings in the pound, when the market price was two shillings and sixpence, would have been exorbitant, and might have been inferred to be usurious. Yet if the *sale had been made when there was a prospect of the assumption of the state debts, each party speculating upon the probability of that assumption and the consequent rise of certificates, and not intending a cover for usury, the transaction would have been sustained, though the debt afterwards rose from two shillings and sixpence' to more than twenty shillings in the pound. These cases all shew, that unless the gain is certain, it must appear that the hazard is merely col-ourable, or there is no usury. While, on the other hand, although the value of “the commodity lent and to be returned be fluctuating, yet the transaction will be deemed usurious, if it appears that that fluctuation .is a mere pretext and cover for usurious gain. And such, I think, is the fair interpretation of the several instructions of the court.

As to the last exception, it presents in effect the question whether, for the irregularity of denying the right of opening and concluding the arguihent, the verdict should be set aside and a new trial awarded. Considering the matter in this light, I am of opinion that the error set forth in the bill of exceptions is not sufficient to justify a reversal of the judgment and the award of a new trial. The rules as to the right of opening and concluding in the courts of England, 2 Tidd 908, are substantially the rules which have been held to prevail with us. Where the general issue is not pleaded, but issue is joined on a collateral fact, in which the affirmative is with the defendant and the proofs rest on him, he has the right to open and conclude. But where the general issue is pleaded, or where by any part of the pleadings the affirmative is thrown upon the plaintiff, he must begin and have the reply, even though there may be other issues in which the affirmative is thrown on the defendant. But I do not think it follows that a new trial should be allowed, solely because of an error in this regard. New trials are refused, even where there have been much more serious irregularities in the *proceedings; as where the judge has permitted the jury to disperse, 2 Barn. & Ald. 462, or where a cause has been taken out of its turn and tried as an undefended cause, and there was no affidavit of merits. 5 Barn. & Ald. 907. If the facts in this case had been spread upon the record, and a new trial moved for, and the case had appeared doubtful, the denial of his rights to the defendant might have turned the scale in his favour; but the defendant having acquiesced in the verdict, having by that acquiescence acknowledged' that it is according to the evidence and the instructions of the court, and having rested his defence upon the supposed errors of the court, and not upon a false finding by the jury, I see no ground for setting aside the verdict: and upon the whole matter am of opinion to affirm the judgment.

Judgment affirmed. 
      
      Reported 6 Leigh 547.
     