#### *Triplett and Turner vs. Cox.*

Charceex.

Case 27.

Error to the Montgomery Circuit; Silas W. Robbins, Judge ,

*Sett off in Equity. Usury. Assignments.*

Case formerly here — See 3 Mod. 303.

Cox’s amended bill.

Triplett’s answer.

April 26.

Chief Justice Bibb

delivered the Opinion of the Court.

Turner exhibited his bill against Cox alone to set off two notes, which Cox held on Turner, against a judgment recovered by Turner to the use of Triplett against Cox. That case was brought to this court; the decree in favor of Cox vs. Turner was reversed on the 26th of May 1824, and the cause remanded, with directions that Triplett be made a party because of his apparent interest. That case is reported in 5th Litt. p. 175.

When the ease returned, Cox amended his bill and made Triplett a party. In this bill he alleges that the notes alluded to in his former bill were given by Turner to Wells for money lent by Wells to Turner; that Triplett, to defraud the creditors of Turner, caused the action at law to be prosecuted against Cox for the use of Triplett; that he does not believe that Triplett had any assignment of the store accounts on which the action at lav/ was founded, nor that the use so expressed in favor of Triplett was founded on any consideration good and valuable in law. ^

The suit to the use of Triplett, was instituted against Cox on the 15th May, 1820; judgment rendered on the 15th March, 1821.

The notes set up by Cox were executed by Turner and McGowan and Stoekdonto John Wells, the one for $140, specie, and $60, in Kentucky notes, bearing (late 12th December, 1818, .the other for $53, bearing date December *30th,*1818, the assignments bearing date on the 16th May, 1820.

Triplett, by bis answer, denies that Cox paid any ' consideration for the assignment to him — charges, that those notes were usurious and void, and founded on a corrupt agreement for more than the legal rate of interest; that said notes were paid off to Wells by Stockdon or McGowan, the obligors, and *191by a combination between Stockdon and Cox, the assignment-’was made to Cox, for the purpose of endeavonring to defeat Triplett of his claim by assignment, of which they Cox and Stockdon had he denies any* notice that Turner or McGowan or Stockdon were indebted to Weils when he received the assignment from Turner of the demand on Cox —he alleges it was made for a valuable consideration, upon a sale and exchange of property &c. between himself and Turner.

Cox’s rcplication-

One for whoso use an aotion prosecuted, is a necessary fendant, for a the°judf-inSt ment, ami “ay shew his priof^o^omplainant’s dcmand> or r°ant°fbr the"' usurious con^deration of sideration of ins assiguto/^13

Cox, by way of replication, charges the assignments of the bonds, notes and accounts, in said agreements mentioned were the consideration, for the sale of a clerkship by Triplett to Turner, and that the exchange of houses and lots was colourable only— and various exceptions were taken to Triplett’s answer to interrogatories put to him in this replication.

Before the suit brought by Turner, to the use of Triplett, Turner had given an order to Triplett on Cox, of the 31st December, 1819, for *§300,*by virtue *of*this order, arising out of the negotiations between Turner and Triplett, the suit was brought against Cox to the use of Triplett, and the judgment obtained for *§288*50 damages. *°*

The circuit court decreed that the assigned notes set up by the bill should be set off against t/ie judgment at law* — from which the defendants appealed,

It seems to this court, that the assignments of the notes, in the bill mentioned, were procured by Cox subsequently to Triplett’s assignment of the demand on which the judgment was founded, and that Cox paid nothing for those assigned notes, and that they were paid and taken up by Stockdon, one of the obligors, and that the said notes were void because founded on a corrupt and usurious loan by Wells of money, at a rate of interest greatly exceeding six per cent, so that the complainant has no foundation tor impeaching the assignment to 1 ripiett and none for relief against the judgment at law. It is, therefore, ordered and decreed that the said decree of the circuit court be reversed, and that the case *192be remanded, with directions to dissolve the injmwjtjon wjtb damages, and dismiss the bill with costs.

*Triplett,*for plaintiffs; *Jets. Trimble,*for defendant.

Appellants to be paid their costs in this court.