
    Nathaniel Williams, and others, vs. Daniel B. Banks, and others.
    In cases remanded under the Act of 1832, eh. 302, where the opinion of the Court of Appeals has been pronounced on the several questions involved in the first appeal, the decision of that Court, thus pronounced, is, by the terms of that Act, made conclusive as to the points finally decided, and no error can be imputed to the Court below, if its subsequent proceedings have been in conformity with that decision.
    
      Where a claim has been allowed by the Court of Appeals, and the cause remanded for further proceedings, it is too late to plead to such claim, for the first time, the statute of limitations.
    
    Where the defence of usury is set up to the claims of the complainants, the affirmative of this charge by the defendants rests upon them under the Act of 1845, ch. 352, and must be sustained by evidence, which can enable the Court to decide that less than the nominal amount of a promissory note has been paid for it, and how much less, so that under the 3rd sect, of the Act, the Court may ascertain the amount really due, and decree accordingly.
    A complainant in a bill in equity alleges an indebtedness to him by one as maker or endorser of “certain promissory notes,” describing one of the notes filed as an exhibit with the bill; and the respondents, in their answer, make defence against “any note or notes” of the party indebted—Held: that any promissory notes of such party, held by the complainant at the time the bill was filed, are embraced within its allegations, though filed as claims, for the first time, after the cause was remanded; and also, that the plea of limitations cannot be sustained as to such of said claims as were not barred by limitations when the bill was filed.
    Appeal from tlie Circuit Court fox Baltimore city.
    Tliis cause was on a former occasion before tbis Court. The proceedings and decision of the Court upon the first appeal, will he found reported in 11 Hid. Hep., 198, &c. Subsequently to the remanding of the cause, additional claims were filed by the complainant, Banks, under a new commission, and further testimony taken, not only in reference to said additional claims, but also to those before this Court on the first appeal. Under the new commission, the complainant, Banks, as holder thereof, filed four additional promissory notes, drawn by Hannah K. Chase, and endorsed by William Chase Barney, marked D. B. B., Nos. 1, 2, 3 and 4, amounting to the sum of seven thousand dollars, dated on the 25th and 30th of July 1844, respectively, all of them payable two years after date; and proved by Joshua Cockey that the signatures thereto were in the handwriting of said Hannah K. Chase, and by Levi K. .Bowen that the endorsements were in the handwriting of William Chase Barney; and also proved the handwriting of the signatures and endorsements to the notes filed under the original commission, prior to the first appeal. The complainants also proved by George W. Earhart, that in the Spring of 1846, at the instance of William Chase Barney, he negotiated the said four notes with Daniel B. Banks, and that he recollected meeting with Hannah K. Chase about that time, and that she stated to- him that the notes were good, that they were her notes, and that she had given them to her grand-son, William Chase Barney. The defendants excepted to the declarations of Mrs. Chase as inadmissible.
    The complainants also filed,, under the commission, the following exhibits-; 1st. Exhibit A, being the record of proceedings in a suit at law in the Superior Court of Baltic more city, wherein Richard G. Berford is plaintiff, and Nathaniel Williams and Josej)h B. Williams, exrs.. of Hannah K. Chase, are defendants. 2nd. Exhibit B, the record of' proceedings in a suit at law in the Superior Court of Baltimore city, wherein Daniel B. Banks is plaintiff, and the said executors are defendants; to the admissibility of both of which, as evidence, the defendants excepted.
    The defendants then proved, by Mrs. Mary Barney, certain declarations of William Chase Barney, and also filed three letters written by him to said witness, who was his mother, tending to show fraud on the part of the said William Chase Barney, in obtaining the said notes, and usury on the part of those by whom they were negotiated. To the admissibility of which declarations and letters, as evidence, the complainants excepted.
    To claims D. B. B., No. 3 and No. !», .Oled under the original commission, and claims D. B. B. Los. 1, 2, 3 and 4, filed under the remanded commis-.ion, ¡be defendants plead the statute of limitations, and also to the notes bearing date subsequent to the date of the deed of trust, and to the claims of Renwick, Mills and Elion, which were, on. the former hearing, allowed b^ the Court of Appeals—the complainants objecting- to the right of the defendants to die the plea of limitations to said claims. The defendants also excepted to all of tire claims of the said Banks: 1st, “because the same and each of them were originated in usury, to which said Banks was a party;” and 2nd, “because the same were ante-dated, and were in fact, if executed by the said Hannah 1C. Chase, dated, as they purport to be, witli the fraudulent purpose of avoiding the effect of the said deed of trust of the 2nd of August 1844, and were, in fact, signed and executed long subsequently to the execution and recording of said deed, and this was well known to said Banks.”
    The complainant, Daniel B. Banks, being afterwards examined, in pursuance of a petition of the defendants, to certain interrogatories therewith filed, testified that he purchased the notes, filed since the cause was remanded, from Earhart, in the early part of 1846, and that ho did not recollect what ho paid for them, and had no memorandum showing the amount; that he was not aware, at the time of purchasing them, that 'William Chase Barney had received the notes without consideration from Mrs. Chase ; that be liad filed a list of all the notes held by him, which were signed by Hannah K. Chase, amounting to the sum of $2,250, and that he was unable to say what proportion the respective sums paid hy him Lore to the notes and property, but that, to the best of bis belief, the sums paid were a groat dea.1 more than one-third of the value of said notes and property.
    The 5th of the interrogatories propounded to the said Banks, is in the following words: “If yon held or possessed the said notes, now produced by you, since the mandate of the Court of Appeals, why did yotf trot produce or file them before this cause was appealed on?” hi reply, he testified that he did hold the said notes at the time of "filing tbe Bill of complaint, did not then file them, be-* cause he was told by D. Stewart, bis eoiinsel, at that time, that it was unnecessary to do so, be, Stewart, bating made an arrangement with N. Williams, a defendant in this cause, that they were to abide tbe decision of tbis case, and that be, Banks, was not aware' it was necessary to file them, until so informed by bis present counsel.- Tbe defendants excepted to the admissibility in evidence of so milch of said answer as relates to tbe statement of D. Stewart, and also to tbe answers generally, “as being vague, evasive, in com-* píete and unsatisfactory.”
    Tbe Court below, (Krebs, J.,) by its decree, overruled tbe defendants’ exceptions and plea of limitations to the complainants’ claims heretofore established by tbe Court of Appeals, and also tbe exceptions of tbe defendants to the' claim D. B. B., No. 4, under tbe original commission, and to tbe claims D. B. B., No. 1, No'. 2, No. 3: and No. 4, filed by Daniel B. Bank's, under tbe remanded commission, in which were set up tbe defences of usury, ante-dating and limitations ; and sustained tbe defendants1’ exceptions to Banks’ answers to interrogatory No. 5. Tbe complainants’ exceptions to so much of Mrs. Mary Barney’s testimony as related to conversations Between her a'nd William Chase Barney, Were also sustained by tbe decree, and tbe property covered by tbe deed of trust of Hannah K. Chase, was-thereby directed to be sold, for' tbe payment of tbe claims allowed. From this decree tbe defendants appealed.
    Tbe cause was argued before Bartol, Goldsborough andOochran, J.
    
      Henry May, for the appellant:
    Tbe decree now under review, overrules our exceptions .to such of tbe antecedent claims, as were established by tbis Court, in 11 Md. Rep., 228. Tbe claims thus said to be established are:
    
      1. Elion’s judgment rendered against Mrs. Chase the 26th of March 1846. It is true, that this Court say in 11 Md. Rep., 236, that limitations cajmot bar this claim, as Elion obtained judgment against Mrs, Chase on the 28th of March 1,846, nearly two years after the deed of trust to the appellant; but surely this Court neyer meant to say, that such subsequent judgment by confession against the grantor, Mrs. Chase, could, prevent her prior grantees of August the second, 1844, from pleading limitations to the ■cause of action, as held by Elion at the date of this deed of trust. That cause of action was the note of Mrs. Chase to Elion, which matured on the 5th of January 1845, .and her other note for 0350,«due the 7th of January 1845, No subsequent acknowledgment or confession of judgment by Mrs. Chase, could affect the right of her prior grantees to plead limitations against the cause of action, as it stood on the day of the assignment of all her property to th.e appellants. Owings & Piet, vs. Low, 5 G. & J., 145, These notes were filed for the first time before the commissioner, on the 17th of February 1851, some six years .after their maturity. We- excepted to these notes on two grounds, viz : limitations, and the payment of dividends on them by Talbott. They were both clearly barred when filed, and must be rejected on the objection of limitations, which runs to the filing of the claim in the creditor’s suit. Hall’s adm’r vs. Cresswell, 12 G. & J., 36. It was therefore an error to hold this claim, to be clear of the recorded objection of limitations, because of the subsequently confessed judgment by Mrs. Chase, 3 Md. Rep., 67 and 78. Id., 312. And the question now is, whether such mistaken opinion of this Court is conclusive on the remanding of the case Under the'Act of 1832, ch. 302, sec, 6. The order remanding the cause requires it to be disposed of in conformity with the opinion filed by this Court. If, therefore, the ■claim of Elion is to he established, it is solely because of the conclusiveness of that order;
    
      The second of the claims allowed is Mills’ note, dated July 30th, 1844, filed less than three years after maturity. The third is Renwick’s note, dated July the 30th, 1844. This last note was not originally objected to on the ground of limitations, and therefore was allowed by this Court in the then state of the record. But as the Act of 1832, ch. 302, sec. 6, allows further proceedings by amendment of pleadings or new evidence, we had a right to object to it on the ground of limitations, as we have done by our new exceptions. Doub vs. Thomas, 1 Md. Rep., 327 and 328. Strike’s case, 1 Bl. Ch. Rep., 85. Welch vs. Stewart, 2 Bl. Ch. Rep., 42 and 43. It was only filed as a claim under his petition of the 20th of Mar3h 1850, more^tlian three years after its maturity. This Court could not, as the record stood on the first appeal, decide the applicability of limitations to Renwick’s claim, and its decision then, is not binding now when the record brought up is materially different. Brown vs. Somerville, 8 Md. Rep., 444.
    The fourth of said claims is the note held by Banks, dated July 30th, Í844, Ext. D. B. B., No. 1 or No. 5. This note fell due July the 30th, 1845, and is not barred by limitations, as it was filed with the bill of complaint on the 29th of July 1848. It was excepted to by us originally on the ground of usury, but this Court said there was no evidence of usury at that time. But since the remanding of the case, Banks has admitted that he advanced a great deal more than one-third on each and all of said notes, and this impliedly establishes usury to at least one-half of this note, on the same principle that Renwick was convicted of usury.
    Banks had another antecedent claim, which was the ' note of Mrs. Chase, dated since the 30th of July 1844, payable one year after date, for $2000. This note was marked Exhibit No. 4, and was at the former hearing rejected for want of proof. No additional proof of the execation of this note lias been taken, since the remanding of the case, yet it lias been allowed by the Court below.
    We now come to the consideration of the four additional notes, marked I). B. 33., Nos. 1 to 4, all dated just prior to the deed of trust, and tiled by Banks, for the first time, on the 14th of July 1858, after the remanding of this cause, and all of which were allowed by the Court below. It will be seen by Banks' answer to the 5th interrogatory, that he field these new or additional notes when he filed the original bill in this cause. A plaintiff has no right to file new or additional claims, after he has allowed the case to be heard as to a portion of his claims, and it has been returned from the Court of Appeals for further proceedings, in relation to the claims then before the Court. 10 Wheat., 443. 3 Howd., 424, Ringgold vs. Emory, 1 Md. Rep., 349, &c. Welch vs. Stewart, 2 Bl. Ch. Rep., 39. Post vs. Mackall, 3 Bl. Ch. Rep., 509. But an additional reason for excluding these last claims from this record, is found in the fact, that Banks had, on the 3rd of July 1849, brought suit on them at common law, which suit was still standing at the time of the decree below. The suit at law was brought against Mrs. Chase’s executors, while this bill in equity is filed against her trustee in the deed of August the 2nd, 1844. Therefore we could not have met the filing of these new claims in this cause, so late as 1858, by calling on Banks to elect between his suit at law and in equity, on the same causes of action, to relieve ourselves from a double vexation, because the defendants were different parties. 2 Story Eq., sec. 889. If judgment liad been recovered on them, against the executors, it would not have been admissible in evidence against the trustees of the real estate, although the individuals filling both offices might be the same. Strike’s case, 1 Bl. Ch. Rep., 57 Gibson, et al., vs. McCormick, 10 G. & J., 109. Collinson vs. Owens, et al., 6 G. & J., 4. Cox, et al., vs. McCaus
      
      land’s adm’r, Id., 16. Gist’s adm’r, vs. Cockey, et al., 7 H. & J., 134. Dent adm’r, vs. Dent, 3 Gill, 482,
    
      A fortiori, these notes even if declared on in the suit at law against the executors, cannot be considered as filed in this equity case, until filed de facto, which was uly the 14th, 1858, up to which time [limitations ran against them as interposed by us. Hall’s adm’r, vs. Cresswell, et al., 12 G. & J., 36. Welch vs. Stewart, 2 Bl. Ch. Rep., 37. Post vs. Mackall. 3 Bl. Ch. Rep., 486.
    The purchaser of over-due paper, takes'it subject to all the equities between the' original parties relating’ to the particular note, and the true test is, whether at the time of the transfer the payee could have maintained an action on the note. Sto. Prom. Notes, sec. 178. The same authority shows, that the purchaser of over-due paper takes it subject to all the equities between the original parties, whether he had notice of those equities or not. See, also, 5 Sandford, 157 and 163, Pringle vs. Phillips. In Annan vs. Houck, 4 Gill, 325, this Court recognized the rule that the endorsee of over-due paper “is chargeable with notice of all the circumstances under which the note was obtained by the payee from the maker, ’ ’ In the case of the Merchants Bank vs. The Farmers Bank of Va., which was twice before this Coirrt, (but is to be found only in manuscript,) it was held, that the holder for full value of a check on the Virginia Bank, marked “good,” by its cashier, when the drawer had no funds, could not recover on the check, because having received it a few months after date, it was subject to all equities as over-due paper. In Renwick vs. Williams, 2 Md. Rep., 363, this Court say, that accommodation notes constitute an exception to the rule, “and in such a case the want of consideration cannot be relied on, although the holder took it when over due.” But in that very case it is said, on page 364, that the endorsee of over-due bills, takes them subject “to those equities, which are inherent in the note, and which would show it to have been void ab initio, such as fraud, mistake, &c.” The new evidence taken since the remanding of the case fully establishes the fraud on the part of Barney, in obtaining Mrs. Chase’s notes; for the exercise of undue influence is fraud. Watkins vs. Stockett, 6 H. & J., 442. Davis vs. Calvert, et al., 5 G. & J., 269. The declarations of Barney, made before lie passed the over-due notes to Banks, Berford and Eenwick, are admissible against them, as purchasers of over-due paper. A bona fide holder for value, without notice, can only recover the amount actually received; Sto. Prom. Notes, sec. 197, note. 9 Granch, 153, Clark vs. Van Reimdysk,
    
      St. Geo. W. Teaclde and J. Malcolm, for the appellees ;
    The decision of the Court of Appeals^ in 11 Md. Pep., concludes the appellants as to the claims filed under the original commission, and also as to the principles there established. The exceptions taken to the testimony of Mary Barney, and the accompanying exhibits, are well taken. In tbe former case, in 11 Md. Pep.,- this Court passed on the defences of Undue influence, usury, antedating, fraud, &c., as to all claims- filed under tbe original commission. See Act of 1785, ch, 72, sec. 21. The answers of Banks are binding on tlie complainants. 11 Md. Rep., 233. There being, no proof at all of usury, and the ante-dating of said notes in this case, those objections must be overruled. The plea of limitations cannot prevail as to the claims allowed by the former decision of the Court of Appeals ; for as to the said matters, the case has been adjudicated, and as to the claims filed by Banks since the remanding of this case, it is proven that he had them at the time of filing the bill of complaint, and tbe plea of limitations can only go, if at all, to the time of filing the' bill, (and at that time they were not barred, the notes alt being notes at two years after date, and therefore would not be barred until August 1849,) and the bill was filed on the 29th of July 1848. McDowell, et al., vs. Goldsmith, 6 Md. Rep., 319. Strike’s case, 1 Bl. Ch. Rep., 85, note as to limitations. The Act of 1832, sec. 6, permits further proceedings and further amendments and evidence upon the ■merits. The plea of limitations is not a plea, to the merits, and could not be put in under the mandate in this case. 1 Gill, 220, Nelson vs. Bond. After a party has taken his defence, in equity, he cannot set up the plea of limitations. There is, then, no plea of limitations to Renwick's or Elion’s claim, and No. 4 is admitted to be-proven by agreement filed. Banks is not a subsequent purchaser or creditor, and therefore the question of notice does not affect him. 11 Md. Rep., 242 and 243. The apjDellants,’' objection to Banks’ answer to the 5th interrogatory, is not well taken, and cannot be maintained, because he is required to state why said notes, filed under the remanded commission, were not filed prior to the last appeal, and the answer is therefore pertinent and resjDonsive to the interrogatory, and gives the reason for not filing said notes ; and for the same reason the exhibits A and B, filed with the answers, are evidence as showing the facts stated in said answers to be true, and the answers to the said interrogatories are conclusive ujdoii the ajDpellants, under the Act of 1785, eh. 72, sec. 27, unless there is testimony to overrule the answers.
    
      Robert J. Brent, for the appellants, in reply:
    The answer of Banks to the 5th interrogatory was excepted to by the appellants, and the excejation sustained by the Court below, and there having been no ajopeal taken by the complainants, his answer cannot now be considered by this Court,. But if it were otherwise, we submit that our interrogatory Avas intended to discover facts knoAvn to Banks, and that it did not sock a discovery of what others had told him of matters transpiring between them and Williams. See Clark vs. Van Reimdysk, 9 Cranch, 153. 2 Story’s Eq., sec. 1529.
    The second defence of the appellees’ counsel, to our objections to the four new claims filed, rests upon the fact that Banks’ hill, filed on the 29th of July 1848, represented that Mrs. Chase was largely indebted to Banks and Stewart, as maker and endorser of certain promissory notes, one of which he filed with his hill, marked D. B. B., No. 1, hut which is exhibit No. 5. 11 Md. Rep., 228. And their idea is, that such an allegation Incorporates all the notes Banks then held, and when produced and proved at any time in the case, they became and were the causes of action incorporated in the hill, and, as such, were not barred by limitations at the date of its filing. And to support this proposition they rely upon the case of McDowell vs. Goldsmith, 6 Md. Rep., 337 and 338. In that case, this Court held, that the claim of the complainant, described generally in the hill, was properly proved under the commission, and though not actually filed until proved, (some five years after the filing of the hill,) it Avas sustained against limitations, though pleaded in the answer. But our case is a very different one. The complainant, Banks, after alleging a general indebtedness on the part of Mrs. Chase, files with his hill one note, and confines his claims in the cause up to the first hearing, to that note, and to another marked exhibit No. 4, and he submitted the ease for final decree upon these two notes alone. Wre claim that this was a clear waiver by Banks of the right to file these four new notes in this equity case, and moreover shows, in connection with the suit in the Circuit Court, that he had already elected to prosecute ids claim thereon at law. The subsequent change of purpose, and filing them here, since the remanding of the cause, amounts to the filing of a new claim, not meant to be included in the general language of his bill, and therefore it is wholly unlike the case in 6 Md.Rep., 331, and these new claims are subject to our exceptions on the ground of limitations, when filed.
    The Act of 1832, directs the case, when remanded to be proceeded in as if no appeal had been taken in the causej and the decree appealed from- had not been passed, and we contend that limitations may also be pleaded. Brown vs. Somerville, 8 Md. Rep., 444. Thomas vs. Loub, 1 Md. Rep.,. 327. 6 G. & J., 29, Chalmers vs. Chalmers. There is no chancery rule that requires the plea of limitations to be' filed within any particular time. No case can be found to-the effect that the plea of limitations in equity, when properly filed, is .not a plea to the merits. Both Banks and Renwick, not being bona fide holders of this paper, are subject to all the equities of manifest ante-dating, as well-as of undue influence practiced by the endorser on the' maker of the notes. On an inquiry into frauds such as-these, the declarations of Mrs. Chase and of Barney, though made subsequently to the-title of these appellees, are clearly' admissible, because they are not bona fide holders. 6 Md. Rep., 338 and 344, McDowell, et al., vs. Goldsmith. 4 Gill, 331, Annan vs. Houck. In law, Banks is chargeable with constructive notice of the deed of trust recorded in 1844, and should not be heard to deny it. 6 Md. Rep., 235, Mayor & City Council of Baltimore vs. Williams. 11 Md. Rep., 250. 13 Md. Rep., 469, Cooke’s Lessee vs. Kell, et al.
    
    We suggest,, in conclusion, that as the deed of trust is-only void quoad■ certain creditors, and not in toto, the decree should allow us time to redeem our property by pay-1 ing, as in cases of foreclosure of mortgage, the lien debt. Such course is far more equitable than the absolute sale decreed below.
   Bartol, J..

delivered the opinion of this Court:

This case was before tho Court of Appeals on a former •occasion, and is reported in 11 Md., 199. it was then remanded under the Act of 1832, ch. 302, and in conformity with the requirements of that Act, the opinion of tho Court was pronounced on the several questions involved in that appeal, and presented by the record. By the terms of the Act, to which we have referred, the decision of the Court of Appeals thus pronounced, is made “conclusive” as to the points finally decided, and no error can be imputed to the Court below, if its subsequent proceedings have been in conformity with that decision. Thomas vs. Doub, 1 Md. Rep., 252, 325. Young vs. Frost, 1 Md. Rep., 377, 394.

This being the established law of the case, our first •duty, in disposing of the present appeal, is to ascertain what has been already finally decided.

An examination of the former decision, has satisfied us that the following points have been conclusively settled:

1st. That the deed from Hannah Eh Chase to Nathaniel Williams and Joseph 13. Williams, dated the 2nd day of August 1844, to impeach which the bill was filed, was not fraudulent in fact, but was fraudulent in law, under the Statute of 13th of Elizabeth, as against bona fide creditors without notice, upon debts which existed antecedent to the date of the deed, and, as to such, it ought to be set aside.

2nd. That tho following antecedent claims had been established, and were entitled to he paid from the property ¿conveyed by the deed, viz :

H. C. Elion’s note, dated 2nd July 1844, for $350.00

Mills’ “ “ 30th “ “ “ 300.00

Renwick’s “ “ “ “ “ “ 1,308.12

Banks’ note, dated 30tli July Í844, Exhibit

D. B. B., No. 1 or No. 5, 2,000.00

See 11 Md. Rep., 243.

The grounds upon which the Court proceeded, in its decision upon these claims, are not now open for examination, and therefore we cannot entertain the inquiry whether there was error, in declaring the claim of Elion to be proved, as has been alleged by the appellant. This conclusion, in our opinion, results from the provisions of the Act of 1832, and is in accordance with the uniform course of decisions in this State. It is unnecessary for us to express any opinion upon the question, whether it was competent for the appellants, after the cause was remanded, to interpose new objections, and offer new proof to impeach the claims passed upon by the Court of Appeals; or to decide how far the decision before pronounced would be binding, if by further pleading and additional evidence, the claims were presented in a new and changed aspect; because in the case before us, the claims of which we have spoken, stand now, as they stood on the former appeal, the proof not being in our opinion materially altered.

To the claim of Renwick, the plea of the statute of limitations has been made, for the first time, after the cause was remanded; but in any view of the question, that plea could not be considered, having been made too late. See 1 Bland, 85, note c. 2 Id., 42, 43.

For the reasons stated, we think there was no error in the decree below, in allowing the several claims Avhich Ave have before enumerated.

We now proceed to notice those parts of the decree of the Circuit Court, by which other and additional claims of the complainant, Banks, have been allowed. These consist of four notes, marked respectively “D. B. B., Nos. 1, 2, 3, 4,” filed since the cause Avas remanded; and one note marked “Exhibit No. 4,” which had before been filed, but Avas disallowed bjr this Court on .the former appeal, the same not then being proAred. (11 Md. Rep., 229.)

To the four notes first named, the appellants have interposed several objections:

1st. That they were ante-dated.

2nd. That they were obtained fraudulently by the complainant, Banks.

3rd. That they were obtained by him usuriously.

4th. That they are barred by the statute of limitations..

With reference to the first two of these objections, it is sufficient to say, that, in our opinion, they are not sustained by the proof in the cause. At the former trial in this Court, the same objections were made to the several claims then passed upon by the Court of Appeals, and it was ruled, after a full examination of the testimony, that there was not sufficient proof to establish the alleged ante-dating; (11 Md. Rep., 232;) or to show any knowledge or participation by the endorsees, in any “fraud or imposition or undue influence,” alleged to have been practiced upon Mrs. Chase by William Chase Barney, in obtaining the notos; (11 Md. Rep., 237, 238.) On these questions the proof before us is not materially altered from wbat it was on the former appeal, and we concur in the opinion then announced, on the effect of the evidence. In deciding upon these two objections, we have excluded from our consideration that part of the testimony of Mrs. Mary Barney which relates to conversations between herself and William Chase Barney, and. have also excluded the letters of William Chase Barney, filed with Mrs. Mary Barney’s testimony, under the remanded commission. The exceptions thereto by the appellees, being in our opinion well taken.

3. On the former appeal the appellants relied on the plea of usury, to the claim of Banks on the note marked (“Exhibit 1 or 5,”) and tbo Court said, (11 Md. Rep., 235, 236,) “that the affirmative of this charge, by the defendants, rests upon them, under the Act of 1845, and they have not sustained it by evidence, which can enable the Court to decide that hiss than the nominal amount of the note was paid for it, and how much less, so that under the 3rd section of the Act, the Court may ascertain the amount really due, and decree accordingly.”

These observations are equally applicable to the defence of usury now urged by the appellants, to the four notes of Banks, of which we are speaking. The onus imposed on the appellants, by the Act of 1835, ch. 352, still rests upon them. See Bandel vs. Isaac, 13 Md. Rep., 202.

And we are compelled to say that the evidence relied on by the appellants, does not gratify the requirements of the law. For although the inference from the answer of Banks to the 3rd interrogatory may fairly be drawn, that he obtained these notes for less than their nominal amount, yet there is nothing from which the Court can ascertain how much less was paid by him, and the onus of showing the amount really due was on the appellants.

Under these circumstances, we are of the opinion, that the objection of the appellants on the ground of usury has not been.sustained.

4th. In disposing of the objection on the ground of limitations, it is necessary for us to recur to the pleadings in the cause:

The bill is in its nature a creditor’s bill, filed originally by Banks and Stewart, and alleges “that Hannah Kitty 'Chase, was in her lifetime largely indebted unto your orators, Daniel B. Banks and John Stewart, as maker and endorser of certain promissory notes,” and then proceeds to name and describe one of those notes, which is exhibited with the bill, marked “Exhibit D. B. B., No. 1.” The respondents, Nathaniel and Joseph B. Williams, in their .answer, make defence against “any note or notes of hers,” held by the complainants or either of them.

By our construction of the allegations in the bill, and the answers, any promissory notes which were held by Banks at the time the bill was filed, are embraced within Its allegations. The proof in the cause shows that the lour notes filed by Banks under the remanded commission,, were all bold by him at the time the bill ,was filed: and as none of them wore then barred by limitations, this objection must, be overruled, and in our opiuion, the decree below ought to be affirmed so far as it allows those four claims.

We now pass to the consideration of the claim filed under the first commission, marked (Exhibit No. 4.) On the former appeal it was decided that this claim was without proof to sustain it, and it again comes before us for examination, upon the new and additional proof since offered. We have carefully considered that proof, and are of opinion that it has not been established, A brief reference to the testimony, on which the appellee relies, will show that this claim has been erroneously allowed in the decree below. The witness, Cockey, does not prove it, he speaks only of the four promissory notes, “D. B. B., Nos. 1, 2, 3, 4,” filed for the first time under the remanded commission. The witness, Bowen, in his first examination, speaks only of the same four notes, and in his second examination testifies only with regard to “Complainants’ Exhibit No. 3, and Complainants’ Exhibit Ko. 5,” filed under the first commission.

Banks’ answer to the third interrogatory, setting oat a list of the notes held by him at tbe time of filing bis bill, refers to this note, but does not establish it as genuine; nor does exhibit No. 5, filed under the remanded commission, and the proof of tbe same being in William Chase Barney’s handwriting, furnish any evidence of the genuineness of the note to which the assignment refers. In our opinion, the objections of the appellants to the admissibility in evidence of the transcript of proceedings in the Superior Court, iu the ease of “Berford vs. Kathaniel Williams and Joseph B. Williams, executors of Hannah XL Chase,” was well taken, and ought to be sustained. And we think there was error in the decree below, in allowing this claim, “Exhibit No. 4,”—and the decree in that respect ought to be reversed.

(Decided November 13th, 1862.)

We concur in the ruling of the Circuit Court, upon the •exceptions of the appellants, to the admissibility in evidence of that part of Banks’ answer to the 5th interrogatory, in which he speaks of the declarations made to him by his counsel, David Stewart, as to any agreement made with Williams. A decree will be signed in conformity with the foregoing opinion, affirming the decree below in part, and reversing it in part; and remanding the cause in order that this decree and the decree of the Circuit Court, so far as the same is affirmed, may be executed, and to afford the complainant, Banks, an opportunity of giving further proof of “Claim No. 4.”

Decree affirmed in part and reversed in part, and ccmse remanded.  