
    *Braxton v. Willing, Morris & Co.
    [November, 1795.]
    Contracts — Clause Stipulating Right to Depart from— When Justice Requires — Effect.—If parties enter into an agreement stipulating the mode of settling certain past transactions between them: and add a clause, that, when justice requires, the agreement shall be departed from, it runs through the whole agreement.
    Same-Ideas of Parties — Effect.—And the ideas of the parties with regard to a particular item, will be the rule concerning it, notwithstanding the agreement.
    Sale of Land — Adjustment of Incumbrance fay Vendor— At What Time flay Be Done. — If A. and B. have an account to settle, and during the discussions, there be a contract between them for the sale by A. to B. of a tract of land, upon which there are incum-brances made-known to the purchaser at the time of the contract; one of which the vendor undertakes to adjust; the price of the land to be liquidated in the settlement of the account: it will be sufficient if the vendor adjusts the incumbrance, by the time of the decree
    Promise to Pay Debt of Another — Breach—Issue to Ascertain Damages. — If A. pro’mise B. to pay a debt, which the latter owes to C., but fails to do so ; whereby B. sustains an injury; equity will direct an issue .to ascertain the damages sustained by B.
    Appellate Practice — Insufficiency of issue. — And if the issiie be so framed as not to embrace the contemplated object,, and be found for the defendant; the appellate court, will direct another issue more appropriate to, the case.
    Equity Practice — Usurious Bond — Reiiéf.—If a bond bear more than legal interest; and for that reason be deemed usurious in a court of law, equity will relieve against the judgment, and decree just compensation,'if the transaction be fair.
    Negotiable Instruments — Acceptance—Payment. — Acceptance of a bill does not entitle the acceptor to charge it in account against the drawer from the date of acceptance, unless he pays the whole • money at the time, or discharges the drawer from all responsibility.
    Carter Braxton exhibited a bill in chancery, in the county court of Henrico, against Willing & Morris, 1. For a settlement of some mercantile transactipns between them., after an attempt at adjustment, which had resulted in an agreement stating the principles upon which they should be settled. 2. For the price of a tract of land called Westpoint sold by Braxton to Morris, subsequent to that agreement, the purchase money for which was to be included in the settlement aforesaid.
    The answer states, That the commercial transactions were principally carried on with the funds of the defendants, the plaintiff having, in fact, advanced very little; and that the plaintiff is greatly indebted on them, to the defendants. Admits the agreement for the Westpoint land.
    *The accounts were, by consent, referred to commissioners to state and report them to the court.
    Willing & Morris afterwards filed a cross bill against Braxton; which refers to the argeement relative to the settlement of the commercial transactions; and prays an account.
    The answer admits the commercial transactions, and refers to the order for account in the original suit.
    The accounts were referred, by consent, in this cause also, to the commissioners.
    The agreement concerning the commercial transactions was dated on the 9th of March, 178S, and stipulates,
    1. That distinct accounts should be made out, according to actual dates, and supported by vouchers.
    2. That a tobacco account should be made out, shewing the purchases and disposition of the article, and the actual investitures of money, or other property, therein.
    3. That “the several sums of money paid and received, shall be estimated according to the scales of depreciation of the places and times of payment, or receipt; that is to say, when monies were paid or received for the use of either, any, or all of the parties in Virginia, such monies shall be estimated by the Virginia scale of depreciation, and in like manner, as to any other scale: And lest a doubt should arise how monies are to be estimated which have been paid and received on bills drawn between Virginia and Pennsylvania, it is to be understood, that, when either of the parties drew on the other for the monies of the drawer in the hands of the party drawn on, the same shall be estimated at the time when the bill was paid; but when bills were drawn to raise money for the use of the drawer, or for any joint concern, (the drawer or concern not having monies in the hands of the party drawn upon,) the same shall be estimated at the time when the bill was drawn. But a reasonable allowance of time shall be made for the investiture of money, according to the circumstances of the case.
    *4. “On the 1st day of January, 1780, Robert Morris shall stand charged with the half of the monies then due by Carter Braxton to Messrs.Webb & Co. of Curraiso, for military stores bought of them by the said Carter Braxton, in which adventure the said Robert Morris agreed to be one half concerned, and from this date an interest account shall commence, and be properly stated and settled to the date of the final settlement of all accounts.”
    5. That a commission account should be stated.
    6. That in case disputes should arise, the same should be submitted to arbitrators; and where circumstances should require a variance from any of the preceding articles, such variance should be made according to the principles of justice, it being the object of the agreement that right might take place effectually, and without delay.
    The contract for the Westpoint land recited, that part of it was mortgaged to Carter & Ritzhugh, and part to Love. Both which mortgages ■ Braxton stipulated should be assigned to Morris; who was to deduct Carter & Ritzhugh’s debt out of the purchase money; and Braxton was to settle with Love, and make a complete title to Morris, free from all incumbrances, except Mrs. Moore’s dower in the part mortgaged to Love. The purchase money for the whole of the land to be liquidated in the settlement of the accounts aforesaid.
    The commissioners reported that, after having examined the different accounts, together with the vouchers and reasonings, as well' on the part of Carter Braxton, as on the part of Robert Morris; and after having closed the account between Carter Braxton and Willing, Morris & Co., by carrying the balance thereof into the account of Robert Morris with Carter Brax-ton, they found a balance of £9&7. IS. 10. as per account annexed to the report, accompanied with the following remarks,
    1. That Carter Braxton, on the 1st of January, 1783, gave Robert Morris his bond for £50S1. 10. 6. sterling; which was not brought into the account, but left in full force *against Braxton, notwithstanding some objections made by him to the bond.
    2. That they had suspended Braxton’s claim, against Morris, for half the purchase money and charges of an estate, in Rngland, bought by Braxton, as he had not obtained a complete title to it.
    3. That they had credited Morris with £ 141. 9. 5%. charged by Braxton for half the balance of the sloop Union at Cape Rrancois; and with j£104. 12. 8%. as half the balance charged by Braxton for merchandize at the Cape. But, as there remained some merchandize unaccounted for by Lory, Plumbard & Co. which might be sufficient to adjust those balances, they gave alternative directions, so as to credit or debit Morris according to the result, when that merchandize should be accounted for.
    4. That Braxton’s claim of ¿£1950. 14. 1. for half the loss' on military stores purchased of Webb & Co. was not admissible, unless he secured Morris, who was sued for the money by the administrator of Webb & Co., on the ground that Braxton had used his name as a partner.
    5. That they had suspended the claim of Robert Morris for £166. 13. 4. on account of a joint adventure with Pleasants, Shore & Co., until the accounts, respecting that adventure, were settled.
    6. That the court would decide whether 'Morris’s charge of £67/8. 3. 6., for half the balance of Jonathan Hudson’s account, should be allowed, until the accounts between Braxton and Hudson were settled.
    7. That Robert Morris should be charged with half the value of $639, and $151 paper money received by him of J. Bradford of Boston, after that species of currency had ceased.
    8. That Braxton was credited with £142. 18. 6. the value of Ramsdale’s bill on Braxton for cost of stores purchased for the sloop Virginia; but subject to the right of Morris to shew that he had not charged it to the United States.
    *9. That Love’s mortgage upon Westpoint, had not been discharged. Carter Bratxon excepted to the report of the commissioners,
    1. Because he was not allowed sundry credits against Willing, Morris & Co.
    2. Because a charge in his commission account was rejected.
    3. Because his claim for some green beef was not allowed.
    4. Because he was overcharged 3s. 6d. per cwt. for a parcel of tobacco, and was not allowed a commission on the transaction.
    5. Because his claim for a short allowance, in respect of a difference in dates, was rejected.
    6. Because he had not been credited for the merchandize at Cape Rrancois.
    7. Because Morris was allowed for a pretended short credit on Dixons & Page’s bills.
    8. Because Braxton was not allowed the full amount of the money paid, by Bing-ham, to Morris.
    9. Because Braxton was overcharged for some money sent by Stewart.
    10. Because he was improperly debited ■with £680. 0. 10., without crediting him for a balance paid for bills, &c.
    11. Because he was not allowed for a short credit upon tobacco.
    12. Because he was debited with an overcharge for commissions.
    13. Because he was overcharged for money received of Peter Whitesides & Co. arising from depreciation at improper dates.
    14. Because he was not allowed the full amount of Cowper’s bill.
    15. Because he was not allowed for the loss sustained by the default of Morris in not paying, as he had engaged to do, a debt due from Braxton to M’Call.
    *16. Because he was not allowed half the price of the English estate.
    17. Because he was not allowed the purchase money for the Westpoint land'.
    18. Because his claim to a short charge on freights, warehouse rents, &c. was rejected.
    The county court disallowed the 2d, 3d and 9th exceptions; but allowing the 1st, 4th, Sth, 6th, 7th, 8th, 10th, 11th, 12th, 13th, 17th and 18th, directed an issue to be joined upon a declaration, then filed, to ascertain the damages Braxton sustained by nonpayment of M’Call’s debt.
    The declaration contained - two counts, that is to say : 1. A count for non-payment of the debt, without charging any special damages. 2. A count for money paid and advanced by the plaintiff for the defendant.
    The issue was joined; and found for the defendant.
    Various other proceedings took place in the county court; and resulted in a decree in favour of Braxton ; from which Willing, Morris & Co. appealed to the high court of chancery.
    The high court of chancery directed the commissioner to make some statements founded on the above mentioned report of the commissioners in the county court; and, upon the coming in of those statements on the Sth of October, 1793, reversed the decree of the county court, and ordered Carter Braxton to pay, to Robert Morris, .£9627. 12. 1. with interest on several parts thereof from different periods; but, if Braxton before the first day of March thence next following, procured a sufficient conveyance for the Westpoint land; free from all incum-brances, except the mortgage of Fitzhugh and Carter, and the dower of Mrs. Moore; he was to have credit for ,£9181. 13. 4. ; and if he paid the judgment which Webb’s administrator had obtained against him and Morris, or indemnified the latter against it, he was to have a further credit of £1950. 14. 1. But, if Robert Morris was compelled to pay that judgment, then he the said Morris was to be credited with so much as *the payment should exceed the said £1950. 14. 1. And that when the tobacco transactions of Dory, Plumbard & Co. were settled, Braxton was to have credit, 1. For any money that Morris’s share of the proceeds should fall short of £'246. 2. 23£. the amount of balances on the sloop Union, and the merchandize at Cape Francois. 2. For half of any loss which might appear upon the final settlement of the adventure with Pleasants, Shore & Co. But, if the amount of half the proceeds of the said tobacco should exceed the £246. 2. 2j£., Morris was to have a further credit for the same.
    Braxton appealed to the court of appeals.
    For the appellant, it was insisted that the agreement respecting the commercial transactions ought not to be interpreted according to the letter; but should be expounded, under the express stipulation in the last article, by the principles of equity; and consequently, whenever justice required, that it should be disregarded, it ought to be departed from. That, in various instances, the commissioners had not observed the true dates; and that the exceptions which had been disallowed by the chancellor, were sustained by the evidence. That Braxton ought to have been allowed the price of the Westpoint land, as the monies due him upon the accounts would discharge all the incumbrances on it, and the getting in of the legal estate was matter of form, which might be provided for at the time of the final decree. Dangford v. Pitt, 2 Wms. 629; Gibson v. Patterson, 1 Atk. 12. That the commission account was not rightly settled; and that the affair of Whitesides & Co., was improperly adjusted, as Braxton ought to have credit at an earlier date. That Braxton was entitled to the full amount of Cowper’s bill; and that the issue directed by the county court, to ascertain the loss sustained by the non-payment of M’Call’s debt, was improperly framed, as it did not embrace the intended object; and therefore, that a new issue ought to be directed.
    *For the appellee, it was said, that the agreement ought to be construed according to the letter, except where particular instances, not in the ordinary course of the transactions, could be shewn; for the provision, in the last article, did not extend to all cases indiscriminately. That the debits and credits stood at their proper dates in the report; and that the exceptions which the chancellor had disallowed were properly disregarded. That Braxton was not able to make a clear title to the West-point land; and therefore, was not entitled to credit for the price, as the incumbrances would exceed the purchase money, and there was not the least probability that Braxton would be a creditor upon any view which could be taken of the account. 2 Wms. 198; 1 Bro. Ch. 75. That the commission account, and the affair of White-sides & Co., were rightly settled; and that Braxton was not entitled to the full amount of Cowper’s bill, as the latter retained it for the unpaid balance. That the issue directed by the county court embraced the object that was contemplated, from being disregarded in such cases; and, as it has been found for the defendant, the verdict was conclusive, as to the damages pretended to have been sustained by the non-payment of M’Call’s debt.
    In reply it was-insisted, that the provision in the' last article of the agreement was' general, and applied to all cases, where justice required that the rules laid down in the body of it should be disregarded. . That Morris was apprized of the incumbrances upon the Westpoint land at the time of the contract, and only stipulated for a removal of that of- Love, which Braxton had a right to do at any time, as no period short of the final settlement of the accounts 'was fixed; and therefore, if the state of accounts was in his favour, the price of that estate ought to be brought to his credit; for the stipulation was that it should be liquidated in the settlement, which amounted to an agreement that the whole intervening time was to be allowed to get in the incum-brance, so as to make its. price a debit in the account. VThat the issue directed by the county court was misconceived, as it did not raise the question of the special damage; and therefore one more suitable to the nature of the case, and better calculated to satisfy the conscience of the chancellor, ought to be directed.
    Cur. adv. vult.
    
      
      Contracts. — See monographic note on “Contracts” appended to Enders v. Board of Public Works, 1 Gratt. 364.
    
   PENDLETON, President,

said that the court had framed a decree in the cause; which he directed to be read by the- clerk in open court, and entered on the order book, as follows:

The court having maturely considered the transcript of- the record, the several exhibits therein referred to, and the arguments of the counsel, is- of opinion upon the several heads of discussion stated, in the interlocutory decree of the said high court of-Chancery, as follows:

On head the first. — “The claim of Carter Braxton to be allowed the difference in depreciation of money between the time of payment, as stated by the commissioner, and the date of the contracts on which the money became due.” That the court are not precluded from this discussion by the third article of the agreement, No. 1, but are at liberty under the last article of the said agreement, to depart from- the principles of the said third articles,- if -right and justice between the parties shall require it. That the connection between the parties was not that of a general copartnery, but particular speculations, in which the joint stock was to consist, not of money, but'of commodities, to be purchased and collected by Carter Braxton, from time to time; and when received by him, became joint property, who was alone answerable to the vendors for the price, and Willing & Morris and Robert Morris accountable to him for-a moiety thereof when the commodity came into the joint stock; and, therefore, in all contracts made by Brax-ton, which were executed by delivery of the commodity -at the time, the date of the contract ought to regulate the scale of depreciation, without respect -to the time of payment; but *that in all executory contracts for purchases made by him, except so far as money was really paid in advance, the time of delivery of the article to him, ought to be the rule; and not the date 'of contract or time of payment; and that in the case of tobacco, the time of delivery shall be that on which the inspectors’ notes were put into the hands of Braxton, or orders, entitling him to call on the inspectors for tobacco inspected, and this rule shall be reciprocally applied in cases of purchases made by Willing & Morris or Morris, and in this application, it appears that an error is committed in entering to the' credit of Willing & Morris, the costs of the brigantine Brax-ton, as in January one thousand seven hundred and seventy-seven, instead of November in the- same year, since, although the said brigantine was purchased and paid for in January, she was bought as the property of Willing & Morris, and remained so until the said month of November, when it was agreed that she should become joint property. If other instances occur, they are to be corrected according to the principle before established. Under this head, there would appear an error in entering to the .credit of Carter Braxton, six thousand eight hundred and twenty-three pounds fourteen shillings and nine pence, as paid Nicholas and Jacob Eaulcon, as of April one thousand seven hundred and seventy7seven, which, by the testimony of Alexander Love and Charles Irving, appears to have been paid in the month of February preceding, and ought to stand at Carter Braxton’s credit in that month, but it being suggested that this error hath been wholly or in part corrected in the accounts, the parties are to be -at liberty to have that error and its correction examined, and properly adjusted.

On head the second. — “A claim of Carter Braxton, of short allowance for loss by depreciation on money' unused.” That there appears no error in this part of the decree.

On head the third. — “The claim of Carter Braxton,, to be allowed for the difference between specie and paper money on the amount of Bingham’s bill on Morris.” That *with this bill, Willing & Morris were no otherwise concerned than as drawees and acceptors, and as such, were chargeable with the money in April, one thousand seven hundred and seventy-seven, but as by Carter Braxton’s consent, the money was to remain in their hands, as a deposit to answer Wroe’s expense in the outfit of the sloop Spitfire, the application of the money to that use, as stated-in the accounts, does justice in that respect between the parties, and that the money received'by Mr. Griffin of Wroe, is rightly charged to Carter Braxton, at the time Mr. Griffin received it.

On head the fourth. — “The claim of Carter Braxton to be allowed the difference in depreciation on the money paid for Dixons & Page’s bills, between the date of the bills and the -time of their payment.” That this claim depending on the state of advances at the time the bills were drawn, according to the third article of the agreement, No. 1, there is no error in this part of - the decree, unless the state of those advances shall be changed by the corrections made in consequence of this decree.

On head the fifth. — “The claim of Carter Braxton to be allowed the difference between seventeen shillings and six pence, and twenty shilling's per hundred, on one hundred and sixty-six thousand three hundred and eighty-two pounds of tobacco, paid Beale for salt.” That by the contract with Beale for the purchase of the salt, amounting in paper to thirteen thousand two hundred and twenty-three pounds, twelve shillings and six pence, part was to be paid for in money, and part in tobacco, and by the final settlement between Brax-ton and Beale, the above quantity of tobacco appears to have been allowed in specie, at seventeen shillings and six pence per hundred, and the residue of the money scaled at five for one. The twenty shillings per hundred for tobacco, which Beale speaks of, respects the tobacco on account of vessels, and not that paid on the salt account. The credit • which Mr. Braxton is entitled to for this article, is two thousand four hundred and forty-four pounds fourteen ^'shillings and six pence specie, (not two thousand six hundred and forty-four pounds fourteen shillings and six pence* stated by Beale, by an error of two hundred pounds in reducing the money,) and if it is not so stated to his credit in the accounts; it ought, by correction, to be made so.

On head the sixth. — “The claim of Carter Braxton to be allowed the difference between specie for which the green beef was received, and the depreciation at the time it wa's sold.” That on the principle now established, Braxton was entitled to a credit for the beef when it was received,' and to be debited the same sum when it was sold. The times of receipt or sale are not ascertained with precision, but probably both happened in the month of March, one thousand seven hundred and seventy-seven, so as to make no difference either as to the scale of the depreciation or- state of advances; and therefore, there is no error in this head of the decree.

On head the seventh. — ‘‘The claim for allowances respecting Pleasants, Shore and Company, and Cory,- Plombard and Company.” That there is no error in this part of the decree, suspending those claims as therein stated.

On head the eighth. — “The claim of Carter Braxton to be allowed for Corbin’s tobacco at the date of contract.” That there is no error in that part of the decree, as it is supposed the tobacco was delivered at the time of the contract, since the contrary doth not appear. The next claim under this head, is, “a claim of Carter Braxton for short credit in money paid Ingram for the Portsmouth and Pamunkey, by reducing the paper money at five for one, instead of three for one.” That the contract between Braxton and Ingram for the purchase of these sloops, was for paper money, and a reference to the price of tobacco at three pounds per hundred, was only made to establish a scale between them for the real value of the paper compared to specie, and this to be adjusted, as was usual in contracts about that period, by the price of twenty shillings specie per hundred, evincing that in their ideas, three for *one was the real scale of depreciation, at that time; and, according to that idea, in their final settlement of accounts, they adjusted the paper money by the ratio of twenty shillings per hundred for tobacco, not with intention of favour on either side, but in pursuit of their real contract. That, under the third and last articles of the agreement, the ideas of the parties at'the time of contract ought to controul the legal scale of depreciation, and entitles Braxton to a credit for specie, on the three thousand six hundred and seventy pounds paper, reduced by a scale of three for one, and on four thousand two hundred pounds at five and an half for one, on account of the money paid Ingram for. these vessels. And, therefore, there is error in so much of the decree as establishes the credit- for the specie value reducing the whole by a scale of five for one.

On head the ninth. — '“The claim of Carter Braxton respecting half the purchase of Ball’s estate.” That the agreement of the parties in Henrico court, in the month of August, one thousand seven hundred and eighty-nine, to annul this contract, will operate as- a final1 discharge of Morris from every item of charge on that occasion, but if at a former period Braxton had advanced money for that purchase, the same ought to stand allowed him in the table of advances', from the time of payment to that of annulling the contract. '

On head the tenth. — “The claim of Carter Braxton for the damages he sustained in consequence of Morris’s not having paid the debt due from Braxton to Archibald M’Call, according to promise. ” It appears, that November the sixteenth, one thousand seven hundred and seventy-eight, Braxton having accepted Cooper’s bill, for sixteen thousand pounds, drawn by Morris on his private account, requests Morris to pay this private debt to M’Call, expressing his hopes that there are in the hapds of White-sides and Companjv sufficient effects to answer it. Morris, in a letter to Braxton, of December eighth, following, speaking of the acceptance of Cooper’s bill, says, “it is well, and *your obligation to M’Call shall be discharged.” The deposition of M’Call proves, that he wrote to Braxton in the beginning of one thousand seven hundred and seventy-nine, demanding payment of this debt, evincing that he would have received it, yet it doth not appear that Morris, throughout that year, offered to pay M’Call, nor until early in one thousand seven hundred and eighty, when a kind of loose offer of payment was-made by Whitesides, and refused by M’Call; and this court is of opinion, that Morris having undertaken to pay this debt, and prevented Braxton from discharging it then by other convenient means, is . bound, however the state of advances between the parties might then be, to recompence Brax-ton for his damages sustained by - the default ; to ascertain the quantum of which damages-should have been referred to a jury instead of the issue tried, which was so made up as to depend upon the state of advances;' the verdict upon that issue, therefore; is unsatisfactory, and ought to be set aside, and a. new issue directed to be tried to ascertain the quantum of damages for the nonpayment; which being tried and certified to the satisfaction of the said high court of chancery, the amount thereof ought to be allowed the said Braxton in account.

On head the eleventh. — “The claim of Carter Braxton to be allowed for the difference to his prejudice in his being charged with ten thousand dollars by Morris, which he alleges was sent him on account of the public.” That there is no error in this part of the decree, which appears supported by the correspondence.

On head the twelfth. — “The claim of Carter Braxton for short credit in commissions.” That from the correspondence between the parlies, it appears that Brax- ■ ton claimed a commission of five per cent, on the amount of purchases, and five per cent, on the amount of sales. Morris objects to it as too high, but seems to yield, if Braxton insists on it, threatening him, however, with contracting the business, or changing his agent: upon which, Braxton leaves it entirely to Morris to settle as he pleased; and so it rested *until December the- thirty-first, one thousand seven hundred and seventy-nine, when Braxton resumes his claim, and states his great fatigue, trouble and expense, in support of it. Morris, in answer, February the third, one thousand seven hundred and eighty, agrees it may be as Braxton thinks right; which is considered as an acquiescence in Braxton’s charge of commissions, and so Morris appears to have understood it, from the .testimony of Charles Irving; that therefore Braxton is entitled to five per cent, commissions on the amount of all purchases, and on the amount of all sales, accountable himself to his sub-agents for their commissions or reward: and there is error in this part of the decree, and the error in the accounts is to be corrected.

On head the thirteenth. — “Braxton’s claim for a specific execution of the agreement as to the Westpoint lands.” That although Braxton was not able, at the time of the contract, to make a complete title to Morris, on account of Dove’s incumbrance, yet by the principles of equity, he was entitled to a specific performance, if he was able to do so at the time of the decree, or within a reasonable . time thereafter, usually allowed; and for this a precedent is furnished in this court, in the case of Pollard against Rogers, ante, 239; and therefore, there is no error in either the interlocutory or final decree on this subject, which are affirmed with this addition, that the time allowed Braxton to perform the condition be extended by the final de? cree, so as to comprehend the same time as formerly allowed.

On head the fourteenth. — “The claim of Braxton to be allowed the difference between allowing Dorcus’s bill at the date instead of the time of payment.” That this bill, drawn by Braxton’s sub-agent upon him, doth not come within the third article of the agreement No. 1, respecting bills draw between the parties; but when the bill was paid, was an advance of so much money by Braxton, and to be then charged: therefore no' error in this part of the decree.

On head the fifteenth. — “The claim of Braxton to be allowed for Cooper’s whole bill at the time of acceptance, *instead of being allowed for his several payments at the time they were made.” That if Braxton had, by accepting this bill, discharged Morris from all liability' to Cooper for the money, he would have had a right to charge the whole at that time, independent of the state of advances; but as Cooper retained the bill, and Morris was liable to him till actual payment, Braxton can only be allowed those payments when made, unless a change in the state of advances shall entitle him to charge the money from the date of the bill, according to the agreement No. 1.

On head the sixteenth. — “The claim of Braxton to be allowed for a moiety of Hudson’s bad debt.” That there is no error in this part of the decree.

On head the seventeenth. — “The claim of Braxton on account of Webb and Company.” This being a joint demand against the company, of which no part has been paid by either, but both sued for the recovery of it, the item of one thousand nine hundred and fifty pounds fourteen shillings and one penny sterling, charged by Brax-ton for a moiety thereof, ought to be wholly discarded from the account, and the eventual charge made to depend upon the recovery, and the discharge thereof by both or either party: and this part of the decree ought to be so modelled as to effect that purpose.

On head the eighteenth. — “The claim of Braxton-for the difference in being allowed, at an improper time, credit for the balance of the money due from Whitesides and Company to him.” That Whitesides and Company were accountable to Braxton for the balance of eight thousand three hundred and eighteen pounds five shillings and six pence, in July, one thousand seven hundred and seventy-nine, when the account of sale was closed, and not before; and in like manner for the sales of the remaining goods, when the account of them was rendered. At the same periods, Robert Morris ought to be chargeable to Braxton! not as a partner of that house, but as having had Braxton’s order, in one thousand seven hundred and seventy-eight, to ^receive the money, and was entitled to a credit for it with that company, at the periods when they became answerable, and the rather, as Whitesides and Company’, in their letter to Braxton of July the thirteenth, one thousand seven hundred and seventy-nine, stating the balance, say, “which sum we shall account for with Mr. Morris, whom you will please to charge therewith.” How this money is credited, the court are not able to discover; but if it be not credited according to the foregoing principles, is to be corrected and made conformable thereto.

On head the nineteenth. — “The claim of Carter Braxton to be allowed for a supposed error in the state of the sterling bond.” That this court do not take upon them to decide whether this bond, bearing an interest of six per cent., be usurious and void at law or not, the decision of which belongs properly to a court of law; but if it was there adjudged to be so, this court would relieve against that judgment, on the ground of its being a fair transaction, and decree just compensation. The items of the account for which the bond was given, appear to be wholly unexceptionable, provided that there was either deducted previous to taking the bond, or Morris is otherwise charged in the accounts for his proportion, according to his share in the privateer, (independent of the defaults of other partners, for which he is not to be accountable,) of the money paid for the Portuguese vessel. The papers do not enable the court to decide whether this has been done or not:’ if not, the decree is to be changed, so as to correct that error.

Upon the whole matter, it is decreed and ordered, that such parts of the interlocutory and final decrees as are before stated to be without error, be affirmed; that such parts as are stated to be erroneous be reversed; and that the appellees pay to the appellant his costs by him expended in the prosecution of his appeals aforesaid here, and the cause is remanded to the said high court of chancery to have the directory and eventual parts of the said decrees enquired of, and proceeded on according to the principles respectively laid down as to each part. 
      
       Usury. — See monographic note on “usury” appended to Coffman v. Miller, 26 Gratt. 698.
      Negotiable instruments — Acceptance — Payment.— Acceptance merely does not entitle the acceptor to sue the drawer, there must be payment. Christian v. Keen, 80 Va. 377, citing Braxton v. Willing, 4 Call 288. See also, monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
     