#### *Freeman &c. vs. Brown.*

Chancery.

Case 48.

Error to the Estill circuit court; Geo. Shannon, Judge. ■

*Pleading. Usury. Process. J3.bsent defendants.*

It is sufficient, tobe jjainsta bond for lawful for'ihe noinh nal amount *^¿^otetto*allege the borrowing and- lending, jng tlie trans. uanioVsTthe court wiíl apply the name and the *avr‘*

May 5.

Judge Mills,

delivered the Opinion of the Court.

The bill of the complainant is brought to scale a note, on which judgment at law is obtained, and payable in dollars, to a specie standard, on the ground that the note was given for paper of the bank of the commonwealth loaned to him, and was drawn, by fraud or mistake, payable in dollars, omitting to say that it was to be paid in paper.

The defendant admits the loan, and denies the fraud and mistake. The court below, scaled the demand and perpetuated the injunction for part of the demand.

We conceive it immaterial, whether there Was a fraud or mistake in drawing the note, or not. For if there was none, the transaction is clearly usurious by the defendants own shewing. In answer to this, it is said that this bill does not charge usury or rely upon it, and without expressly pleading it, no relief on that account can be given.

The complainant has charged a borrowing and lending, and a payment stipulated for beyond legal interest. The defendant admits these charges, The substance of usury is therefore relied on, and it is as easy for *the*chancellor *to*find out, and give it *the*proper *name of*usury, as it would be if the parties had used the name. The substance is that to which the chancellor looks. If the facts are in the pleadings, the chancellor will draw the proper conclusion of law.

The defendant insists that the money was due him, from a third person, and that in specie, and he had refused to take bank paper for the debt; that it was this specie debt which was loaned and the transaction only amounted to an exchange of securities: the complainant’s note payable in specie, for this third person’s note due in specie. In this the proof has failed. It is evident that although the money loaned to the complainant, was gotten from this third *264person, for a specie debt, *yet it*was taken by tbe defendant himself, and then left in the hands of a depository, *to*be loaned to the complainant on note and security given to the satisfaction of the defendant.

Certificate of the publication against an absent defendant, must appear, by the certificate or otherwise, to have been made by the editor or publisher.

*Turner*for plaintiffs; *Breck*for defendant.

But the court below has erred in enjoining $H5of the principal of the note with its interest, when, according to the proof, it ought to have been only 1105; and for this error the decree must be reversed.

There is also, an irregularity in decreeing-over against the defendant Freeman, in favor of his co-defendant, not only because the decree is for too much by tiie aforesaid ten dollars, for which the injunction was perpetuated beyond what it ought to have been; but also because *the order of publication*against the defendant Freeman, to answer the answer of his co-defendant, his assignee, is certified to have been inserted in the public paper by some person, who is not stated by himself, or proved in the record, to be the editor or publisher *of the*paper, and according to former decisions, such proof of publication is insufficient.

The decree is therefore reversed with costs, and cause remanded, with directions for such proceedings and decree as shall not be inconsistent with this opinion.