
    Pollard v. Baylor’s Devisees.
    October, 1809.
    Deeds ol Trust — Usurious Contract* — Case at Bar.— J1 B. being' indebted to certain British merchants, conveyed a tract of land and sundry slaves, in. trust, to secure the payment of the debt, in three equal annual instalments, with interest from the date of the deed of trust; the payments to be made in tobacco, to be delivered at, and addressed to them in London, on which they were to draw the usual and accustomed mercantile commission of 21 shillings sterling, for each hogshead actually shipped; and it was further provided, that in case of non-shipment of the tobacco, a further sum equivalent to, and in lieu of, the usual mercantile commission thereon, at the rate of 21 shillings sterling per hogshead, estimating each hogshead to be worth 101. sterling, was to be added to each payment; — held, that the transaction was usurious, and the deed of trust void.
    Ejectment by Robert Pollard against John Baylor, in the Fredericksburg District Court, for one messuage and a tract of land, in the County of Caroline.
    The Jury found a special verdict, stating, that, on the 24th day of August, 1790, the defendant was seised in fee of the land in question, and on that dajT executed a deed of trust to James Brown, of the City of Richmond, for the purposes in the said deed mentioned, which they find in'hasc verba. The deed recited, that John Baylor was indebted to Alexander Donald and Robert Burton, of the City of London., merchants and partners, trading under the firm of Donald & Burton, in the sum of 8191. 7s. 9d. sterling money of Great Britain, the payment of which, with interest thereon at the rate of five per centum per annum, he was desirous of assuring to them in three equal annual payments to be made in good merchantable crop tobacco, to be delivered at, and addressed to them in London, upon which they were to draw the usual and accustomed commission of 21s. sterling for each hogshead. The property conveyed was 2,000 acres of land, being part of the tract whereon the said Baylor resided, nine young negro men and two young women by name, together with the future progeny of the said females. Each sum payable annually, was to bear interest .from the date of the deed, and, in case of non-shipment of the tobacco, a farther sum equivalent to and in lieu of the usual mercantile commission thereon, at the rate of 21s. sterling per hogshead, estimating each hogshead to be worth 101. sterling, was to be added to each payment. In case of failure of payment, James Brown, the trustee, on the request of the said Donald & Burton, or one of them, in writing, was to sell so much of the said land, or so many of the said slaves, (or the whole of each, if necessary,) as should be needful for raising the amount of the principal and interest remaining unpaid at the time of making such sale, after any instalment or instalments which should then have become due at the then current exchange, with a further sum adequate to the commission on the tobacco agreeable to the estimate afore-«aid; such sale or sales to be. for ready money, and at such place or places in the 'State of Virginia as to the said James Brown should seem most convenient, four weeks previous notice thereof being given in one or more of the Virginia gazettes. This deed was reacknowledged *and delivered at Richmond the 4th of June, 1791, and recorded in the -General Court the 18th of the same month.
    The Jury moreover found, that in consequence of the said deed, the said James Brown entered into and was seised of the said land, (which was the land in the declaration mentioned,) for the purposes mentioned in the deed; that, after executing the same, the defendant snipped and consigned to Donald & Burton, one hundred and five hogsheads of tobacco, agreeable to the covenants in the said deed; that Donald & Burton advanced other sums of money for the use of the defendant, 1 !as ■exhibited in an account rendered by James Brown, attorney for Donald & Burton,” which account they found in the words and figures following, &c. (setting it out;) that a suit at law was instituted for the recovery of the balance due on the said account, and a verdict and judgment entered for 2001. which had since been paid; that, 4‘on the 22d of April, 1795, the said James Brown sold the lands and negroes in the said deed mentioned, (having advertised the same on the 10th of March in the Virginia Gazette,) at the Bowling Green for ready money, when Robert Pollard, the lessor of the plaintiff, became the purchaser of all the lands and slaves in the said deed of trust contained for the sum of 9851. which he then and there paid ;o the said James Brown,” who thereupon conveyed the said land to him by a deed in these words, &c. (setting out the deed,) ■dated July 16th, 1795, and recorded in the General Court, November 12th, 1796.
    The account exhibited was acknowledged by John Baylor, in writing, dated “New-Market, January 29th, 1795, to be just; balance due eight hundred and twenty-four pounds 19s. sterling, on the 19th September, 1794.”
    On this verdict, the District Court gave judgment for the defendant, whereupon the lessor of the plaintiff appealed, and the suit, having afterwards abated by the death ol Baylor, was revived against his dev-isees.
    *Call, Wickham, and Randolph, for the appellant.
    The Attorney General, for the appellees.
    Por the appellant, it was argued, that Baylor’s contract with Brown, as trustee for Donald & Burton, was not usurious; being a transaction entirely in the way of trade, and the same in principle with the cases of Floyer v. Edwards,  Winch, qui tam, v. Penn, Hammett v. Sir Wm. Ted,  and Tate v. Wellings; that the commission of 21s. per hogshead, allowed Donald & Burton, was but a reasonable compensation for their trouble in selling the tobacco which was to be consigned them; and, although they were to receive 21s. for every 101. in case Baylor failed to send them the tobacco, it was in his own power to avoid paying this penalty by shipping the tobacco punctually; which circumstance prevented the contract from being usurious ; that the Court could not infer usury from the facts stated in the verdict, since the Jury had not expressly found it, nor that the contract was entered into from any corrupt motive, or for the purpose of eluding the statute; all which were questions proper for the Jury to consider ; that this was a mixed contract, consisting of two distinct parts — a loan or forbearance of money, and a sale of tobacco; that, by the contract, Donald & Burton were bound to place themselves in the situation of commission merchants; the stipulation, on their part, being that they would sell the tobacco, and, on Baylor’s part, that he would send it; and both agreeing that the commission of 21s. for each 101. should be the measure of damages, which they should recover for his failing to send it; that the advancement of their credit, as commission merchants, by consignments of tobacco, was an object of more consequence to them than the mere commission for selling; and this consideration entitled them to damages for the disappointment; as, in the case of an employer contracting to have a house built, and to furnish materials, if *he fails, there is no doubt but the undertaker is entitled to damages.
    For the appellees, it was said, that, if the counsel for the appellant were correct in their position, that the question reserved in the special verdict could not be considered by the Court, unless the Jury had found expressly the quo animo with which the contract was made, the door of discussion was at once closed; and the cause ought to be sent back for a farther finding. But the Jury have expressly referred to the Court the question of law arising upon the fact; for, if they had found usury expressly, there could have been no question, and judgment must, of course, have been rendered for the defendant. The argument goes to the extent that there can be no special verdicts in cases turning upon questions of usury. It is true, the question, “usury, or not,” is proper for the consideration of a Jury, and they may decide it, if they think proper; but if they do not, but choose to refer it to the Court, the Court will decide it upon the facts, as in all other cases of special verdicts.
    That this was a clear case of usury, is evident; not the case of a merchant about to establish commercial intercourse, but of a planter, who, indebted to Donald & Burton, under the pressure of circumstances yielded to their demands. In consideration of a forbearance of three years, he was bound to ship them tobacco, and to allow them the enormous commission of 21s. per hogshead; and, even if he did not ship, he was to pay the same commission, estimating each hogshead at 101. sterling I It is not found, that 21s. per hogshead was the reasonable and usual commission. But, if reasonable when tobacco is actually shipped, it surely cannot be said to be reasonable, or usual, when tobacco is not shipped. There never could have been a custom so unreasonable. A commission is a compensation for doing1 something. The allowance, therefore, where no tobacco was shipped, and they were at no trouble, could not operate as a commission, but must have been ^intended as a premium for the use of money. That this additional premium was stated by the way of commission makes no difference. A man shall not shelter himself under the pretext of commercial dealing,- so as to evade the statute. It was impossible for the Legislature to describe every case which constitutes usury; but they have gone as far as the ingenuity of man can to prevent it; so that, if, in any case, the intention appear to be to get more than legal interest, it is usury,  All the cases go to this; that, if the party attempts to disguise the transaction, in any manner, so as, in effect, to obtain more than legal interest, it will be as much usury as if a certain rate of interest above the legal, had been taken, 
    
    In all the cases cited on the other side as depending on the usage of trade, the usage was expressly proved and found by the Jury, and was fair and reasonable in itself. The premium taken was conformable to the usage, and no more than a just compensation for risk and trouble. In 3 Term Rep. 531, Tate v. Wellings, the contract, it is true, was decided not to be usurious: but this turned on the circumstance of its being for stock, which is fluctuating in value; and, as the party was bound to return stock, it was reasonable that the other should receive as much' money as would command as much stock with the dividends. Besides, the party had his election to pay stock, or money.
    In 7 Bac. 198, (Gwil. edit.) and 1 Atk. 350, it is said, that, where both principal and interest are at hazard, it is not usury. But, in the present case, there was no hazard of principal or interest; both being secured by the deed of trust.
    The only plausible ground on which gentlemen insist is, that the penalty might have been ¿voided by shipping the tobacco: but, either way, Baylor was to pay an enormous interest.
    ^Thursday, October 19th, 1809. The Judges pronounced their opinions.
    
      
      Deeds of Trust — Usury.—On this question of usurious contracts, the principal case has been overruled in Pollard v. Baylor, 6 Munf. 433, 436, 437. The principal case is also cited in Pulton v. Johnson, 24 W. Va. 108.
      See monographic note on “Deeds of Trust” appended to Cadwallader v. Mason, Wythe 188. and monographic note on “Usury” appended to Coffman v. Miller, 26 Gratt. 698.
    
    
      
       Cowp. 112.
    
    
      
       2 Term Rep. 52, note.
    
    
      
       1 Bos. & Pull. 144.
    
    
      
       3 Term Rep. 531.
    
    
      
       Roberts v. Tremain, Cro. Jac. 308.
    
    
      
       1 Bos. & Pull. 151.
    
    
      
       7 Bac. Abr. tit. Usury, let. G. (Gwil. edit.) p. 191; Jestons v. Brooke, Gowp. 793: Le Blance et al. v. Harrison, Holt’s Rep. 706; Morse v. Wilson, 4 Term Rep. 353.
    
    
      
      , (b) Lowe and others v. Waller, Doug. 736; Barker v. Vansommer, 1 Br. Oh. Rep. 151.
    
   JUDGE TUCKER.

The special verdict in this case differs in some particulars from that upon which the Court decided the 20th of October, 1808.

In this case, the Jury find, that John Baylor executed a deed of trust to James; Brown, to secure the payment of 8191.7s. 9d. sterling, due to Donald & Burton, merchants in London, in three equal annual instalments, by the shipment of tobacco to their address, on which they were to be allowed a commission of one guinea per hogshead ; and, in case of non-shipment of the tobacco, a further sum in each payment, equivalent to and in lieu of the usual mercantile commission thereon, at the rate of one guinea per hogshead, and estimating each hogshead, to be worth 101. sterling: then James Brown, on the request of Donald & Burton, was to sell, &c. the lands in the ejectment mentioned.

*“They find that, after executing the said deed, Baylor did ship and consign to the said Donald & Burton 105 hogsheads of tobacco, agreeably to the covenants, in the before-mentioned deed.

“They find that Donald & Burton advanced other sums of money for the use of Baylor, as exhibited by an account which they find in hasc verba; and that the deed of trust in the said account mentioned, is the same as thfe one before set forth.” But they do not find, nor does the deed of trust mention, that the same was to stand as a security for any future advances which Donald & Burton should make to Baylor.

They also find, that a suit was instituted for the recovery of the balance due on the last-mentioned account,.and a verdict and judgment entered for 200*1., which has since been paid.

They then find the sale of the lands by Brown, (after advertising the sale thereof once,) and the purchase thereof by Pollard, and a deed of bargain and sale for the same from Brown to Pollard, which, after reciting the deed of trust from Baylor to Brown, proceeds thus: “And whereas the said John Baylor failed altogether in shipping-to the said Donald & Burton any part of the-tobacco in the said deed mentioned, and also neglected to pay to the said Donald & Burton, or any other person for them, any part of the debt mentioned in the said deed, to be due from him to them, or the interest thereon, and the sum of money in lieu of commissions, so that the whole amount thereof became due and payable by the said John Baylor to the said Donald & Burton, after the 24th day of August, 1793, (when-the three years during which the payments were to have been made expired,) and the said Donald & Burton did afterwards request the said James Brown in writing, to sell, &c. in consequence of which, &c. the lands were exposed to sale, &c. and Pollard became the purchaser,” &c.

*The District Court upon this special verdict gave judgment for the defendant. And I am of opinion, that judgment was correct. Por the Jury have .expressly found the shipment of tobacco, which, according to the valuation in the deed, (made for a different purpose, I admit,) must have amounted to much more than the debt and interest; thereby expressly negativing and contradicting the statement of facts contained in the recital of the deed to Pollard; and they have moreover found, that the balance actually due (though not that which was claimed) on the account exhibited by Donald & Burton, hath been actually paid. Upon this state of facts, I am of opinion, that enough appears upon this verdict, for the Court to give judgment in favour of the defendant, and that the same be affirmed.

With respect to the question, whether this contract be usurious, I learn from a note in the hand-writing of the late Judge Pendle-ton, which is, accidentally, in my possession at present, that in a former suit between the same parties, grounded upon this very contract, it was determined by this Court to be usury by the nature of the contract appearing in the instrument itself. I was previously of the same opinion, in which I am the more confirmed by that decision.

Let it be supposed, that after entering into this contract, Mr. Baylor had purchased bills on London to the amount of his whole debt and interest, and had there tendered the money to Donald & Burton: might they not still have insisted that he should pay them eighty guineas more in lieu of the commission of one guinea per hogshead, at the rate of 101. sterling per hogshead, which he was to allow them by this contract? Or suppose that fifty hogsheads of tobacco had sold for as much as the whole debt would amount to. Must he not still have paid the commission of a guinea per hogshead, according to these stipulations, on thirty hogsheads more than paid his debt? Here, then, is a condition arising out of this contract for further forbearance, that the debtor should in any event be liable to pay eighty guineas (amounting to about ten per cent.) *moie than his original debt and interest. This, I conceive, brings the case fully within the statute. Por Baylor could not, by any means whatever, discharge himself from the obligation to pay this additional premium over and above his debt and interest

JUDGE ROANE.

This is the third case which has come before this Court between the present parties, and grounded upon the same deed, viij. the deed of 24th August, 1790.

As to the first case, I do not recollect whether the account current, which is contained in the present special verdict, was also to be found in it, nor do 1 remember the particulars of that verdict: but the Court went fully into the question of usury suggested to arise upon the construction of that deed, and were equally divided upon that question. I was one of those who thought the deed not usurious, in which opinion Judge Lyons concurred. As that opinion has never been published, and perhaps never may be in any particular report of the case, I will beg leave to read it as a part of my opinion on the point of usury in the present case. It was delivered on due deliberation, and I have since seen no cause to change the result therein contained.

[Here JUDGE ROANE read the opinion now alluded to, which see in the note below.]

*In addition to the reasons contained in this opinion, I will beg leave to say, with Judge Lyons, in his opinion delivered in the same case, !‘that in questions of usury the *intent is more to be regarded than the words; that Donald & Burton were commission-merchants in London, and desirous of extending their trade by procuring consignments of tobacco, the profits of which trade, in addition to that of securing the debt due to them, were *their object; and that it was a lawful object, being in the course of their business.”

Such was the opinion of a moiety of the Court, in the first case of Pollard v. Baylor. As for the note mentioned by the Judge who preceded me, and said to contain the opinion of Judge Pendleton on this point of usury, it is true that the judgment of the District Court thereupon was affirmed; but it was only by the equal suffrages of the Judges of this Court. No man has a greater veneration for the memory of that great Judge than myself: but his opinion in a case in which he did not sit, which he had not heard argued, and did not take the trouble to study, ought not to be quoted as an authority. It is even less than an extrajudicial and obiter opinion.

In the next case between the same parties, this Court reversed a judgment in fa-vour of the defendant, on account of certain defects in the special verdict. In reversing that judgment on that ground, and thus keeping alive the controversy between the parties, the majority of the Court undoubtedly adjudged and admitted the deed of 24th August, 1790, not to be usurious: for else, cui bono, send back the parties to make their case . more complete? why not at once put an end to the controversy? why continue a tedious litigation between the parties, if the Court thought that, upon the foundation of that controversy, the party claiming can never be entitled to recover? As to this point, the decision of the Court, a few days ago, in the case of Murdock and others v. Herndon’s executors, is a satisfactory authority. In this second case of Pollard v. Baylor, this question of usury was argued at length by the bar: when, therefore, the Court sustained the cause, and took measures to have a more perfect verdict rendered, did it not virtually at least, overrule an objection which strikes at the very foundation of the claim? did it not, in effect’, decide, that the deed of August, 1790, was not usurious?

Taking it, then, both upon the merits of rhe question as aforesaid, and upon the decision in the second case just mentioned, which, otherwise, ought not to have called for *a more perfect verdict, that the foundation of this claim is not objectionable, it remains to inquire, whether the special verdict now before us is adequate or not to sustain a judgment for the appellant under the standard set up bj' this Court in relation to the verdict contained in the second case, just mentioned.

On a minute comparison of the present verdict with that contained in the former case, I think the present verdict at least as imperfect as the former one. I will endeavor to state the particulars.

The verdict in the former case was condemned, and the judgment reversed, on three grounds: 1st. That it was not found whether, at the time of the execution of the deed of 24th August, 1790, James Brown was the agent of Donald & Burton, and, as such, received the indenture from Baylcr. This objection equally applies to the present verdict. There is nothing more on this point found in this case than in the former. It is true it is found, that the account current stated in the verdict was rendered by James Brown, attorney for Donald & Burton: but this merely relates to the time of its presentation, viz. January, 1795, and that Brown was then attorney for Donald & Burton; it does not establish the fact of his agency as at the time of the execution of the deed. 2dly. Another objection to that verdict was, that it was not found whether the publication of the time and place of sale was duly made, agreeably to the terms stated in the deed, but that the Jury found evidence only; (i. e. the advertisement itself;) but that finding is stronger than the present in this particular; for, in that case, it was found that James Brown did duly advertise the sale of the land, which word “duly” would seem to extend also to the number of times of publication required by the deed, whereas in the present case it is only found that the sale was made, James Brown “having advertised the same on the 10th of March in the Virginia Gazette:” It is neither found that it was duly advertised as in the former case, nor more particularly, that it was advertised four weeks, according to the ^requisitions of the deed. These two objections to the former verdict apply, therefore, with equal force, at least, to the one before us. A third objection made to the former verdict was, that it was not found that the 105 hogsheads of tobacco were shipped “in pursuance and fulfilment of the covenants in the deed of trust,” or “to meet bills drawn on Donald & Burton at the time of such shipments.” This objection does not apply to the case before us, for it is found in this verdict, that the defendant ‘did ship and consign to Donald & Burton 105 hogsheads of tobacco, agreeable to the covenants in the said deed.”

But, in lieu of this last objection, another presents itself which did not exist in the former case. It is not found in this case, •as it was in the former, that James Brown was requested in writing, by Donald & Burton, to sell the premises in question, as required by the terms of the deed. This requisite is essential to the legality of a sale, and ought to be found; for the defendant did not mean to subject his land to be advertised and sold at the pleasure of the agent, but only of the principals, in whose liberality and honour he may have had more confidence.

There is, perhaps, still another defect in the present finding, which also existed in the former case, but was not noticed in the judgment of the Court. By the terms of the deed, the agent was not to sell the whole trust property to pay a small sum, but only “as much as should be needful,” for raising the amount of the principal and interest of any instalment which should remain unpaid, with a further sum adequate to the commission stipulated on the sales; i. e. 21s. 'per hogshead. To this sum, thus compounded, the opinion of the Court in the former case seems to have added, as I think ought to be added, all moneys due “for bills drawn on Donald & Burton, at the time of the shipments of the tobacco.” Now, although I have no doubt but that all the bills stated in the account current in truth fall within the above description, yet this is not found by the verdict, nor stated in the account itself, except in relation to the first bill for 1651. drawn Sept. 22, *1790. By a rough calculation which I have made, the balance of principal and interest of the original sum secured by the deed left due by the proceeds of the tobacco shipped, added to the commission on 105 hogsheads of tobacco, according to the terms of the deed as aforesaid, and to this advance of 1651. will fall short of the sum actually raised by the sale of the land and negroes by the sum of 3821. or thereabouts; and therefore it would seem by the verdict before us, that more of the land and negroes Were sold than was justified by the terms of the deed. But (as before said) having no doubt but that all the bills mentioned in the account were for advances made at the time of the respective payments; and, if so, as they ought, according to the opinion of the Court before mentioned, to make part of the sum for which the trust property was liable to be sold; I should think that this fact should be left open to be supplied in the verdict in future, and thus the sale actually made of the trust property stand justified as to the whole sum raised thereby.

The'result of my opinion is, that the foundation of this claim being free from objection on the ground of usury or any other objection, both upon my own deliberate opinion on the point, and b3r the judgment of the Court in the former case, (which, otherwise, ought to have affirmed the judgment for the defendant on the merits, ) that still the verdict before us should be set aside, and a venire de novo awarded; first, on the ground of the two (and perhaps three) objections common to this case with the former, as I have endeavoured to point them out; and, on this additional ground, that it is not found in the present verdict, that James Brown, the agent, was required in writing to make the sale in question, without which, under the provisions of the deed, it ought not to have been made.

JUDGE) B'BEMING.

When this extraordinary contract was under the consideration of this Court on a former occasion in another suit between the same parties, I was clearly of opinion that the contract was 239 usurious, and gave my reasons *pretty much at large; and to that opinion I beg leave to refer. Since the last able and ingenious argument of *the case, I have reconsidered it, -with very great attention, and the more I reflect upon it, the more am I convinced of *the correctness of my former opinion, that it has usury stamped upon the very face of it; and no shift, covin, device, or deceit, appears in order to evade the statute, (and such, I'am authorized to say, was the opinion of Mr. Pendleton, a late venerable and enlightened President of this Court, (and it appearing as well on the face of the deed itself, as by the verdict, that James Brown, a principal party to the deed, was the agent of Donald & Burton, the contract was void ab initio; and without considering any other point in the cause, I am of opinion, that the judgment of the District Court is correct, and ought to be affirmed.

By a majority of the Court, the judgment of the District Court affirmed. 
      
       The opinion of the Court, pronounced on the 20th of October, 1808, in another ejectment, between the saíne parties, and founded on the same deed, was, "that the judgment was erroneous in this, that the Jury have not found whether, at the time of the execution of the indenture of the 24th of August, 1790, by John Baylor to James Brown, the latter was the agent or attorney of Donald & Burton, and as such, received the said indenture from Baylor; and also in this, that they have not found whether the 105 bogsbeads of tobacco, stated to bave been shipped by tbe said Jobn Baylor to Donald & Burton, were by tbe former shipped to tbe latter in pursuance and fulfilment ot tbe covenants in tbe deed of trust in the said verdict set forth, or to meet bis bills drawn on Donald & Burton, at the time of such shipments: and further, in this, that they bave not found whether the publication of the time and place of the sale of the land and slaves in the said deed mentioned was duly made, agreeably to the terms stated in the deed; but have found evidence only.”
      The judgment was therefore reversed, (by the unanimous opinion of the Court, consisting of Judges Fleming. Roane and tucker,) and a new-trial directed. — Note in Original Edition.
     
      
       Opinion oí Judge Roane, in the case of Pollard v. Baylor.
      “With respect to the first objection made by the appellee's counsel, there is nothing- in it. The appellant's attorney aid not exhibit the deed in question as a mere immaterial paper; but, as he tells us in his exceptions, to support his declaration. But. after that paper was rejected by the Court, it would have been improper to have gone on and shewn how his title was derived under it.
      "Nor have I any difficulty upon the question of usury. The agreement was to pay a sterling debt, with interest, by instalments, in tobacco, to be consigned to the creditor, who was to have the accustomed commissions for selling. II was further agreed, that in case of failure of payment in that mode, the principal, with interest, and the amount of the commissions, should be paid here, by means oí a sale of the property conveyed, if the covenant, had been performed by the appellee as contemplated, it was clearly unobjectionable. So in the event, which has happened, X think the commissions must either be considered as a penalty from which the appellee might have delivered himself, and therefore the contract was not usurious, or as a stipulated rate of damages, previously agreed upon by the parties, for an injury produced by non-compliance.
      “I will view the case, first, as before a failure, and on the face of the deed itself: and, secondly, as under the event which has happened.
      "As to the first view, it is rightly held by Judge Buuder, in Tate v. Willings, 3 Term Ttep. 539, that the question is, whether a contract was usurious or not, as at the time it was entered into; for, if the contract was legal at that time, no subsequent event can make it usurious. The same doctrine is held by Lord Manseield, in the case of Floyer v. XOdwards, Cowp. 115. It is also held in the last case by the same J udge, (and I adopt these positions, because I think them right,) that usury is an agreement to pay, originally, the principal, with greater interest than five per cent. In the case before ns, considered as at the time of the contract, the commissions could not be considered as an addition to the legal interest, but as a compensation for a service contracted and intended to be performed; and, consequently, as no greater interest than the law allows Is reserved, the contract is not usurious.
      "This position, that a contract is to be adjudged as at the time of its date, without reference to posterior events, in fact shuts up this question. But I will notwithstanding consider it in the other aspect.
      “In the event which has happened, the appellee is compelled to pay a sum over and above the principal and interest, i. e. the amount of the commissions contemplated. It is true, that, in no event, could the appellee have avoided the payment thereof; but in the event contemplated by the contract, viz. that of his shipping the tobacco, he could have converted them Into a compensation for a service actually performed, and, consequently, that sum would have ceased to be without consideration It would have ceased to be an augmentation of the interest, if otherwise it could be so considered.
      “In this view, the case comes clearly within a well established rule, that, although a penalty be reserved, yet if the borrower had it in his power to comply, and avoid the penalty at a certain day, the contract is not nsnrious. To constitute usury, the borrower must be bound, in all events, to pay a greater interest than the law allows: hut in this case he was not so bound, but might, by complying with his contract, have turned this penalty, as it is now called, into a compensation for a service actually performed.
      “If it be said, that, by the contract, the consignees are not bonnd to sell the tobacco, and therefore the commissions are without a consideration; the answer is, that in that event, it is, as it were, a sale to themselves; and that the service is the same to the consignor, whether retained (as if sold) by themselves, or sold to others.
      “The case of Tate v. Willings is very applicable to our case. There a greater interest than 5 per cent, was reserved on the sum lent; "but, because the borrower might have delivered himseli therefrom within a limited time, by paying stock, the contract was held not to be usurious.
      “The case of Morse v. Wilson, cited by Mr. Call, does not apply. For there, in addition to the legal interest, profits of a‘ trade were granted, from which the borrower could not have delivered himself, and which therefore formed an addition to the legal interest.
      "In every view of the case, then, the contract is not usurious. If the contract had been performed, the commissions would have been given for a bona fide and valuable consideration. As it was not performed, the penalty arises, not from the contract itself, but from the breach thereof by the appellee; and because he did not deliver himself therefrom by performing his agreement.
      “It was well observed, that here are no extrinsic circumstances to vary the construction arising from the face of the contract. If there were, a different conclusion might follow. If, for example, it had been agreed collaterally, that the tobacco should not be shipped, or other circumstances existed shewing plainly, that it was well understood by the parties, that the tobacco could not or would not be shipped. These, or such like circumstances, might induce the Court to consider the contract as really a shift to evade the statute.
      "But the contract is a mere naked one, and, on its face, I clearly hold it to be not usurious.
      “I am, therefore, of opinion, that the judgment of the District Court ought to be reversed, and a new trial awarded, with directions to admit the deed in Question as evidence to the Jury.” — Note in Original Edition.
     
      
       The following was Jtjdgh Fleming's opinion, alluded to above.
      “Three questions seem presented in this case;
      “1st. Whether the contract between John Baylor and James Brown be usurious?
      “24. Whether Brown was the agent of Donald & Burton at the time of the contract? and,
      “3d. WerenotlOS hogsheads of tobacco shipped by Baylor, and consigned to Donald & Burton, agreeably to the contract? and ought not the whole proceeds to have been applied in discharge of the debt then due ?
      “1. With respect to the first point, it appears, that Baylor, being largely indebted to Donald & Burton, (who had immediate right to recover their debt by legal process,) and being thus in their power, and at their mercy, was induced, in consideration of their forbearance for one, two, and three years, to enter into the ruinous contract before us, thus becoming a loan which is altogether In favour of the creditors, without any equality or reciprocity between the parties, and having usury stamped upon the very face of it. Baylor had only this alternative, either to discharge the debt of the shipment of tobacco, (for which he was to have credit for iust as much as they might please to allow him,) after deducting a commission of 21 shillings sterling per hogshead, (let it be sold for what it might,) or submit to have the trust estate sold for ready money, and pay (oyer and above all expenses incident thereunto) a commission of 21 shillings sterling for every 10 pounds on the amount of the sales.
      “The first alternative was clearly against the debtor and in favour of the creditors, because the less they gave him for his tobacco, the higher commission they secured on the collection of their debts, and the more freight on their shipping. By the contract the debt was to bave been paid at three annual instalments of 2731. 2s. 7d. each, with interest at 5 per cent, per annum on each instalment from the date of the deed; to be paid by shipments of tobacco to the creditors, estimated at and understood by the contracting parties to be worth 101. sterling per hogshead, and held out as a lure to Baylor. The first instalment, with the Interest, amounted to 2861. 15s. 8d. 2qrs. which 29 hogsheads of tobacco would have overpaid 31. 4s. 3d. 2qrs., the commission on which would have been 301. 9s. The second Instalment, with interest, amounted to 3001. 8s. lOd. which 30 hogsheads of tobacco would have discharged, save 8s. 10d. The third and last instalment would have been 3141. Is. lid. 2qrs., which 32 hogsheads of tobacco would have overpaid 61. 19s. Od. 2qrs. the commission on which would have been 331. 12s. The whole commission, then, would have amounted to 951. 11s. and the debt overpaid 91. 14s. 6d. by the shipment of 91 hogsheads of tobacco.
      “It appears by the verdict, that, long before the expiration of three years from the date of the contract, Baylor shipped and consigned to the said Donald & Burton 105 hogsheads of tobacco, ‘agreeably to covenants in the aforementioned deed,’ and the amount of the sales thereof was not applied in discharge of the contract, but a new account raised between them, and instead of 101. per hogshead, as estimated by the parties at the time of the contract, accounts of sales of the 105 hogsheads of tobacco are rendered by Donald & Burton, through their agent James Brown, at the average price of 61.16s. lid. per hogshead, so that, instead of the debt and interest being discharged by the shipment of 91 hogsheads of tobacco, and a commission to the creditors of 951. 11s., it would require 131 hogsheads of tobacco to discharge the debt, and the debtor pay a commission of 1371. 11s. besides the loss of 31. 3s. Id. per hogshead, on 105 hogsheads of tobacco, already snipped agreeably, to contract. As to the other alternative, the sale of the trust estate, and the very extraordinary commission on the amount of sales. Mr. Randolph, in his argument, contended, that it was no hardship on Baylor, because ‘that extra commission must be considered asa penalty which he might have avoided by the shipment of tobacco.’
      “We have already seen that he had shipped 105 hogsheads of tobacco, agreeably to the covenants in the contract, for which, instead of 101. as estimated by the contracting parties, they give him credit for 61. 16s. lid. and the greater part of the proceeds applied to other purposes. But had the whole been applied in discharge of the original debt of 8191. 7s. 9d. and Baylor had continued to ship tobacco till the whole was paid, with interest, he would have sustained a loss of 421. for extra commissions," and of 81. 3s. Id. per hogshead on 131 hogsheads of tobacco, amounting in the whole to 4551. 3s. lid. and thus much in discharging a debt, which, with interest from the date of the contract, amounted only to 9011. 6s. 6d. The loss on the sale of the trust estate, unrighteously made, cannot with precision be ascertained; but it must have been enormous, as two thousand acres of land, near the Bowling Green, in the County of Caroline, and eleven prime young negroes, with the increase of two families for about five years, sold only for 9851. These calculations are made to shew the unreasonableness and injustice of the contract, which dire necessity compelled Baylor to submit to. It is true, that the party in whose favour the contract so manifestly appears to be, has used no ‘shift, covin, device, or deceit, (except holding out the idea that 101. sterling per hogshead’ was to be received for the tobacco, in order to receive more than legal interest for the forbearance or giving day of payment of the money in order to evade the statute, but has come boldly forth in defiance of the law, and stamped usury on the face of the contract, which renders it utterly void ab initio. Prom this view of the case, then, it appears to me, 1st. That the contract being usurious, was void in itself; 2d. That by the original deed of 1790. exhibited by the appellant, and under which he claims, it appears clearly to my mind, that James Brown was the agent of Donald & Burton, but, had there been anj" doubt on the subject, he is found by the verdict to have been their attorney; and, 3dly. That the whole proceeds of the 105 hogsheads of tobacco ought to have been applied in discharge of the original debt, supposing the contract to have been a legal one.” — Note in Original Edition.
     