
    Price, &c. v. Campbell.
    [October Term, 1799.]
    Usury — What Constitutes. — In order to constitute usury, both parties must be consenting- to the unlawful interest; that is to say, the lender to ask, and the borrower to give.
    Same — SameiCase at Bar.--Therefore if a bill of exchange is drawn upon an obscure man in Beotian a, altho’ the payee may expect it will be protested, yet if there was no agreement between him and the drawer, that it should be protested, the transaction is not usurious.
    Same — Same.—There must be proof of a lending and borrowing to constitute usury.
    This was an appeal from a decree from the High Court of Chancery, where Campbell as assignee of his father Robert Campbell, brought a bill stating, that the said Robert Campbell purchased divers bills of exchange drawn by Carter Braxton on sundry persons in Britain, payable to the said ^Robert Campbell, to wit, one for ¿£200. sterling drawn on One drawn on Rdward Harford for ,£200 sterling; another on Robert Young for ¿£1811. 3. 11. sterling; another on Robert Cary and Company for ¿£400. sterling, amounting in the whole to ¿£2611. 3. 11. sterling, and as great part of Campbell’s fortune, who was about to return to Great Britain, depended upon payment of the bills, and that drawn on Young was for so large a sum that a failure would have been ruinous, it was stipulated that the amount of it in case of protest should be ultimately secured in Virginia. That in pursuance of that stipulation, a deed was given by Braxton to the said Robert Campbell, for a tract of land called Broadneck and another called Fosters with sundry slaves, with proviso that if the bill for ¿£1811. 3. 11. should be protested, and Braxton should afterwards pay the amount, with interest, that the deed should be void. That the bill on Cary & co. for ¿£400., and that on Young for ¿£1811. 3. 11. were protested for non payment; of which Braxton had notice. That he made some payments towards the same, reducing the balance to ¿£1960. 0. 3. sterling as appears by an account made up, by two persons for that purpose chosen, who have subscribed their names to their award or report thereon. That the said Robert Campbell afterwards being dissatisfied with the security and requiring other, Aylett and Brooke entered into an obligation in writing', as securities for whatever sum Braxton might then owe Campbell; That this obligation was by some accident 'destroyed, and that Aylett and Brooke, being informed thereof, afterwards gave a writing acknowledging the- former, and obliging themselves anew. That for reasons unknown to the plaintiff, Robert Page afterwards placed himself in Ayletts stead, by an indorsement on the said last named writing. That, the securities after-wards growing uneasy, Braxton, for discharging the debt and indemnifying the securities, gave a deed to Drury Rags-dale *and George Braxton for a tract of land in Hallifax, two lots at West Point, and sixty slaves. In trust to sell the same if necessary, for satisfying that and other debts and indemnifying the securities aforesaid. That Braxton for further securing Page, and for securing White, who was his security in a debt due Govan, gave another deed to Page and White for 76 negroes and other property, in trust to sell them, if necessary, for their indemnity. The bill therefore prays relief against Price executor of Brooke, George Braxton, Drury Ragsdale, Carter Braxton, the administrator of White, and the other creditors stated in the first of the above mentioned deeds of indemnity; and that the lands slaves and property in the said trust deeds contained, might (except the lands released by Robert Campbell) be sold for satisfaction of the plaintiffs claim.
    The answer of Braxton .states, that Robert Campbell then of Virginia was possessed of two bonds the one for £1335. sterling, the other for £1200., liable to a deduction of £61. That the first he was not likely to receive for a long time, and the second was not to be paid till the estate of the obligor could raise it. That the defendant negotiated for those bonds, and purchased them, without recourse on Campbell. That'this purchase was the only consideration for the bills. That Robert.Campbell demanded interest at the rate of 10 per cent upon the loan of the two debts, and took the bills of exchange to legalize the transaction, if he could. That Young the drawee of the bill for £1011. 3. 11., was a friend and relation of Campbell’s in Scotland; a Clergyman, not engaged in commercial business, and unknown to the defendant, who had never heard of him before: that the defendant does not recollect when he received notice of the protests. That Campbell not content with the mortgage, made the defendant give the personal security mentioned in the bill: Upon which he engaged to relinquish the mortgaged premises. After which the defendant sold the mortgaged *lands and most of the slaves. That Campbell in July 1777 wrote a letter in which he declares the defendant is to pay 6 per cent interest, from the expiration of the deed to that time; but notwithstanding this, he afterwards stated his account at 10 per cent. That the settled account stated in the bill was not intended to be conclusive, but was done merely to ascertain the payments made by the defendant. Insists that the contract is usurious; and claims the benefit of the act of limitations.
    The answer of Price. Insists on the' usury; and claims the benefit of the act of limitations: Prays, that if his testator should be considered as liable, the mortgaged property may be first applied.
    The commissioner reported ¿2498. 1. 2)4-sterling to be due in March 1784; of which £1547. 17. 6 to carry 10 per cent interest until paid.
    The suit abated as to Page, and was revived against his administrators. Who insist on the usury and act of limitations, and suggest the uncertainty of assets.
    The answer of George Braxton, says he never was in possession of the trust property.
    The deposition of a witness says, that he heard Robert Campbell say he had lent Braxton a large sum of money, but does not know whether it was in bonds or money ; thinks as well as he can recollect, that he has heard the said Robert Campbell say the debt due him from Braxton was in bills of exchange, but does not know it was for the sake of obtaining 10 per cent interest; altho’. that was a mode, much practised in those days,-of obtaining ten per cent interest. That he knows Broadneck and some slaves were mortgaged to Campbell; and believes it was on account of the said loan. Has understood that Campbell • released part of the mortgaged premises, and took personal ^'security. Being interrogated, says that he is not positive, whether the debt was contracted by loan or otherwise.
    A second witness says, that he understood Campbell had let Braxton have the bonds, and that bills of' exchange were given ; but knows not the terms as to either. That he understood a plantation was mortgaged to secure the debt. That Campbell soon after went to Scotland.
    Two other depositions speak of taking slaves in execution; and the sales being forbid by White and Page.'
    There are among the papers the several exhibits spoken of in the -bill and answer, to wit,1 the mortgage, the two deeds of indemnity, the second obligation of Aylett and Brooke, with Page’s indorsement. Campbell’s settled account, spoken of in the bill, charged Braxton with the two bonds, and credited the bills of exchange; but debited him anew with the bills and credited the payments, leaving the alleged balance of £1960. 0. 3. In this settlement the amount of the bonds at the time of the transaction is made to be £2551., 2. 11. And the amount -of the bills of exchange is made to be £2611. 3. 11. which makes a difference of .£60. 1. And this the referees credit as a balance due to Brax-ton at the time of giving the bills; and the commissioner in his report charges it thus, “To balance overpaid at this date £60. 1.” There are several letters in the record betw°een Braxton and Campbell, on the subject of payment; and particularly that spoken of in Braxton’s answer. Which appears to have been written after November 1778 instead of July 1777 as Braxton’s answer supposes. Wherein .after some' remarks on the subject of a tender by Aylett, Campbell adds “to' put an end to the most troublesome affair ever man was concerned with, I now inform you that if you will bring the money to New Castle or to Hanover town the day of Mr. Jones’s sale, will receive it, you paying *the six per cent from the expiration of the deed, the above is a just and true state of the affair between you and you humble servant. ’ ’
    There is another letter, nearly in the same words, not directed to an3r person or dated; to which there is a postscript in these words 1 ‘Instead of bringing or sending the money you sent Mr. Clark for ray answer, which was, that as you had not complied in bringing or sending the money to the time, but desired I might call or send some person in my stead for it, I was now of another opinion, for that as I intended home first opportunity, in that case this currency could be of no use to me, but would take it in different payments, two, three or four years hence — interest, to which no answer.”
    In a letter from Campbell to Braxton dated in July, 67, which was prior to the assignment of the bonds, in July 1768, Campbell says, “Being obliged to separate my bonds, thought myself under an obligation in consequence of what had passed between us on that subject, to reserve one until you return ; and shall want to know by the bearer if I am to dispose of it or not. ”
    In another of the 6th, of August 67 he says, “I suppose you know by tliis time that it is Major Gaines’ bond, I have still by me,”
    In another of the 29th, October 67, he says, “I shall send down, by Mr. Sample, Major Gaines’s bond, and if you can get the late speaker’s administrators in the humor to discount I am willing to transfer the same, though am well satisfied that money cannot be better secured.”
    In another of the 17th, of February 68, addressed to Carter Braxton Esq., Williams-burg he says, “I received yours last night, which shall fully answer in a few days, probably call on you to have the affairs finished one way or other, I do not *want any advance so much as the money, and that in good bills, or could have disposed of the bonds without asking consent of any person before this time.
    “Should you hear of my purchasing Boss’s land which I hope will go no further, until that affair is over and the old informer cast up, it shall in no ways affect j'our bargain, as to the gentleman not making himself liable to me on j'our account, I knew that some time ago, but there are many I should prefer to him on sundry accounts, the exchange falling will certainly be an advantage to you, and whether my notions may be chimerically founded or not, time only can tell, though I think and wish should we agree that you may come off with pa3ring 2J4 per cent instead of I have had no account from your quarter for a long time, nor can I tell whether London is in being or not. I am Sir, your humble servant.
    , Robert Campbell.
    February 7, 68,
    “You may depend on the affair transpiring from. R. C. ” The Court of Chancery decreed payment of ^2498. 1. 2. currency with interest at the rate of 10 per cent to the time of pronouncing the decree, and five per cent interest on both from the time of the decree until payment, and in default thereof, that the mortgaged slaves should be sold for satisfaction, and if they should prove insufficient, that the administrator of Brooke and the executors of Page should out of the estates of their decedents pay the balance. And dismissed the bill without costs, as to the other defendants. From which decree Braxton and the other defendants against whom the decree for payment was made, appealed to this Court.
    Warden and Marshall, for the appellants,
    contended,
    *1. That the contract was usurious. For the real substance of the agreement was a loan, and the bills were but a mere device to take the case out of the statutes. Every circumstance shews that it was clearly understood betwixt the parties that the bills would come back protested. That on Young was not drawn on a merchant of character, trading to America, and therefore likely to have funds in his hands to answer it; but upon an obscure clergyman, not even inhabiting in a trading town, but residing in the interior of Scotland; and not shewn to have had any connection whatever with Braxton. The bills' were given for bonds at par. The mortgage is'for the payment of the money by installments, which would not have been the case if it had been a purchase instead of a loan: Neither would it have been the case in a security for a bill expected to be paid; but it was very likely to be done in the case of a bill which it was supposed would not be paid.
    2. That Campbell’s'claim was barred byr the statute of limitations For Braxton’s letters were not written within five years; and Page’s engagement was not under seal. ' 1 :
    3. That the debt at most ought only to carry simple interest. For the bill was merged in the mortgage; and if a suit was brought at law, upon the covenants, a jury would only give five per cent. The securities were bound for a sum certain, and not as Indorsers of the bills; on which no action can be maintained against them.
    Randolph & Wickham, contra.
    Contended that the contract was not usurious. That there was nothing which shewed Campbell’s knowledge that the bills would be protected when he took them; and although privately there might have been such an expectation in the parties, these circumstances will not affect the case, unless it was part of the agreement that there were no funds in the drawees hands, and that the bills should be protested. That the person on whom they were *drawn afforded no knowledge of any such agreement; because Braxton might have money in his hands to answer the demand, by remitting in time, or by various other means. So that it was contingent whether they would be protested or not, and Braxton had it in his power'to avoid the ten per cent; which took it out of ‘the statute. 1 That it did not appear that he affected to assert that the contract was for a lending and usurious, until long after the transaction. That the mortgage was taken merely in the room of an Indorsor, which was the customarj1-mode; and therefore no unfavorable inference could be drawn from that circumstance. That the act of limitations did not apply, as the deed of trust protected the claim. That the deed being a collateral security for the money due on the bills, it was the bills themselves which were to ascertain the amount due to the creditor; and as they bore ten per cent, interest, that rate of interest was to be paid out of the trust property.
    Cur. adv. vult.
    
      
      Usury — What Constitutes. — In order to constitute usury, there must be a corrupt intent on the .part of both the contracting parties. In support of this rule, the principal case is cited in Whitworth v. Adams, 5 Rand. 361, 426; Skipwith v. Gibson, 4 H. & M. 490; Watkins v. Taylor, 2 Munf. 436; Call v. Scott, 4 Call 409.
      See the principal case cited in "Watkins v. Taylor, 2 Muni. 440.
    
    
      
      Saine — Same.—The principal case is cited with approval in Swayne v. Riddle, 37 W. Va. 290, 16 S. E. Rep. 513, for the proposition that, to constilu te usury there must be a borrowing and lending, with an intent to exact more interest than is allowed by law, or a forbearance in consideration of such interest being paid.
    
    
      
      Same — Same—Accommodation Paper. — The principal case is cited in Whitworth v. Adams, 5 Rand. 385, for the proposition that, an ordinary note or bond may be purchased ata greater discount than legal Interest, without imputations of usury, although such bond or note be given for accommodation, the purchaser being ignorant of that fact. The principal case is cited in Taylor v. Bruce, Gilm. 168.
      See foot-noie to Gibson v. Fristoe, 1 Call 62. and monographic note on ‘"Usury” appended to Coffman 6 Bruffy v. Miller, 20 Gratt. 698.
      See the principal case cited in Nelson v. Eotterall, 7 Leigh 208.
    
   ROANE, Judge.

This case viewed in its proper light, is really a very short one, and as I think a very plain one. It has but two real questions in it. 1. Whether the contract was usurious? 2. Whether the claim is barred by the statute of limitations?

In order to simplify the case, I may throw out of it some points which are too plain for discussion. As first whether the mortgage extinguished the bill of exchange? 2. whether the securities Brooke and Aylett became bound, by their agreement, to pay 10 per cent interest, in the event of the bills being or having been protested? As to the first, it is clear that the mortgage recognized the bill of exchange, as an existing one; and so far ■ from extinguishing it, creates an additional security for its payment. The bill of exchange therefore, and not the mortgage, is the contract which ^determines the rate of interest to be paid, and is the contract really sued upon. As to the second, the general agreement of the parties will. extend as well to the nature as to the amount of the debt due from Braxton to Campbell; and the nature of the debt due by bill of exchange, determines the rate of interest to be paid by them on protest to be 10 percent per annum.

The question of usury is rather more difficult; but I think nevertheless sufficiently clear. I admit that, on questions of this kind we are at liberty to infer usury from the circumstances of the transaction itself. Otherwise it would be generally impossible to detect it. But in. making this inference, we are confined to the enquiry, whether there is a corrupt contract or agreement for usurious interest? Now such a contract or agreement presupposes the consent of both borrower and lender to this effect; and without it there is no usurious contract; whatever may be the hopes, wishes, or expectations of .either party. Thinking this principle to be almost self evident, I shall proceed to examine the present question by it.

The contract, by which Braxton transferred a right, to money in Scotland to Campbell, for a valuable consideration, as evidenced by the bill of exchange, was a lawful contract; and it had the concurrence of both parties thereto. It is no objection, to the legality of such contract, that the drawee is a stranger to the drawer; that the latter has no funds in the hands of the former; or that the drawee is in a line of life other than commercial. This contract is for the payment, of money in another country (not in this); and for the injury arising from a disappointment, the law has allowed an interest of 10 per cent per an-num ; and so far operates as an exception to the general act of usury.

This contract is to be considered as the real contract between the parties, unless it be subsequently ^changed, or it has been previously agreed that the bill is not to be paid, but to be protested; and the money paid here. In the last case the bill would be considered as a shift to evade the statute of usury, and conceal the real agreement of the parties.

However strong the answer of Braxton is to shew an usurious tendency and disposition in Doctor Campbell, as evidenced by the unusual circumstance of his procuring Braxton to draw on a stranger, a clergyman, and a person having no funds of the drawer; Yet he does not state any consent on his part to waive his right to consider this as a legalr bill and to procure it to be honored. He ¿oes not state any agreement on his part, subsequent to the drawing of the bill, that it should not be paid; or any previous agreement that the money was really to be paid here, and consequently, that the bill is a mere shift to evade the statute.

The question then is reduced to this short point. There is a complete agreement of both parties evidenced by the bill of exchange, that the money should be paid in Scotland. There is a hope, an expectation, and even a contrivance in the party, and probably an expectation in both, that the money should not be paid in that country, but in this; but there is no agreement, carrying this expectation into effect, barring the right of Braxton to consider the contract as a real bill of exchange and to procure a payment in Scotland, and converting the contract into an usurious one.

With respect to the plea of the act of limitations, .there is no doubt, that laying out of the case the previous acknowledgments, but the deed of Braxton to Page and White is an acknowledgment which will prevent its operation. That deed refers to the debt to Campbell as an existing one; and when it speaks of £2000, it is only as being the amount of it as supported by Campbell’s representatives: and the license of Page and *White of the 14th of April 1793 to the sheriff to sell some of the negroes, recognizes and refers to that mortgage. I think therefore the decree ought to be affirmed.

But Mr. Randolph asks to correct it. 1. In decreeing that the slaves sold to Adams by Page’s consent should be accounted for. And 2, that liberty should be reserved to the appellee to proceed against the distrib-utees of Brooke’s property.

As to the first, I answer that such of Brooke’s slaves mortgaged to Page and White, as were comprehended in the deed of mortgage from Brooke to Campbell, are now liable to Campbell, by the decree into whose hands soever they may have come, and that Campbell has no lien upon the slaves not so comprehended, but the lien as to them was only in favour of Page and White, who have released it.

And as to the second, that the distributees of Brooke having given or being liable to give bond to the executor to refund, are completely entitled to their distributory shares exempt from any claim, except such as is supported by a specific lien on such property, which in this case is not I believe pretended.

FLEMING, Judge.

The counsel for the appellant made three points in this case. 1. They contended that the contract was usurious, and therefore void. 2. That the act of limitations applied in favor of the securities. 3. That the nature of the debt was altered, by security being given; from which time the‘contract was changed, and carried only S per cent interest.

As to the first, I observe, that in order to constitute usur3r, there must be a borrowing and a lending, with an intent to exact exorbitant interest beyond what is allowed by law, or a forbearance in consideration of such interest being paid. But there appears no conclusive evidence that such *was the case in the contract - now under consideration. There are indeed several suspicious circumstances respecting the bill drawn on Young ; but it is unnecessary to repeat them, as they are not sufficient, in my mind, to bring the case within the statute of usury.

As to the point of the act of limitations, I think the undertaking of the securities in December 1775 under seal, excludes them from the benefit of that act; and that Page’s undertaking to stand in the place of Aylett and to perform every engagement of his (although not under seal) bound Him to abide by every con sequence, which was to follow from Aylett’s suretyship. In addition to this, Page afterwards accepted a deed of trust from Braxton as an indemnity: Which, with the other circumstances just mentioned, certainly removes all pre-tence for the plea.

With respect to the third point, that the taking of the mortgage for security of the debt, changed the nature of the contract, and made the debt bear five per cent interest only, it is sufficient to observe, that the consideration of the mortgage expressly is, to secure the repayment of the money paid by the mortgagee for a set of bills of exchange therein described, if they should be protested ; which in that case would by law carry an interest of 10 per cent per annum. So that Campbell’s accepting the mortgage did not change the nature of the debt, but was considered merely as an auxiliary security for the payment.

Mr. Randolph thought there was error in the decree in not allowing the appellee to proceed against the legatees of Mr. Brooke for the slaves in their possession, and to pursue the mortgaged slaves purchased by Adams. But, besides the answer already given to these objections, it is sufficient to observe that those parties are not before the court, and consequently, we can make no decision affecting them. I am therefore for affirming the decree altogether.

*CARRINGTON, Judge.

Three exceptions have been taken to the decree of the Court of Chancery in this cause. 1. That the contract was usurious and void. 2. That the plaintiffs claim was barred by the statute of limitations. 3. That the 10 per cent ceased on taking the mortgage, and that only five per cent could be demanded after that period.

As to the first, it is said that the contract is usurious, and therefore void. But to constitute usury there must be a loan or forbearance; and there are no features of either discoverable in this cause. Braxton in his answer, calls the transaction a sale and purchase of two bonds for which the bills in question were drawn ; and although he afterwards speaks of them as a loan, yet from the nature of the thing in question (namely bonds) they could not have been intended to be returned: Because in that case they would have been of no use to the borrower; who contracted for them for the purpose of negotiating them in payment of his debts to others; and they were certainly drawn as a consideration for the purchase. As to the shift which has been alleged, it is possible that the intention of Campbell was to make greater profit than five per cent, but such intention is not proved. Braxton indeed states it in his answer; but the answer is not responsive to the bill, and is unsupported by testimony. Besides altho’ Braxton states that to have been Campbell’s intention, he does not say that he himself consented to it, which was necessary to form the contract between them. In short I discover no trace in the transaction so conclusive as to justify me in criminating Campbell and depriving his representatives of their debt. For there is nothing in the case out of the usual course of that kind of business; which was thus, the debtor drew bills of exchange payable to his creditor, but in case of the possibility of non acceptance an indorsor was generally required. In the present case however, in lieu of an indorsor, Braxton conveyed an estate *as a security for the large bill on Young. In this view it was a fair transactio'n, and not justly liable to any objection. But added to this, Braxton’s defence is materially weakened by his lying quiet so long, and making considerable payments, without any complaint.

Upon the whole, I consider the case as not coming within the statute of usury; and that the security taken was intended to strengthen and not to injure the plaintiffs legal rights under the bills of exchange.

The second exception was that the claim is barred by the act of limitations. But there is no ground for the objection; because the claim has been preserved, from the operation of that act, by various transactions down to the year 1792, when the suit was brought.

The third exception, taken by the appellants counsel, has been already anticipated ; and I shall only add that I think there is no weight in it.

As to the corrections asked for by the appellees counsel, it is sufficient to observe that Brooke’s representatives are not before the court, and therefore we can make no decree against them.

Upon the whole, I concur in opinion with the other Judges, that the decree was pronounced on just principles and ought to be affirmed.  