#### Outen *vs.*Graves, and Graves *vs.*Outen.

Ghancery. Gase 186;

Error to the Jessamine Circuit; Keixy, Judge.

*Usury. Mole tainted with usury is void.*

October 9.

Judge Underwood

delivered the opinion of the Court.

Outen filed his bill against William W. Graves and John Graves, alleging that he pur1' chased from John a note on William for $868, bear*630ing date the 8th of October, 1817, payable one yea#thereafter, negotiable in the United States Brand.*. Bank in Lexington, signed by said William, and endorsed by said John ; that about the time the note-became due, W. W. Graves applied for indulgence, which Outen agreed to give, provided a new note was executed, and John Graves would become bound, for the amount thereof as a joint obligor ; that the endorsed note was left with - Headington for renewal, and that W. W. Graves, taking advantage -of the failure of Headington’s eyesight, fraudulently imposed upon him anew note signed by himself alone and took up the old note endorsed by John Graves. The new note was sent by Headington to Outen, who, discovering that John Graves had not signed it, went to see Wm. W. and John Graves on the subject. Outen charges, that Wm. W. Graves promised to go the ensuing morning to John Graves and to get him to become the surety in the new note, which he took back from Outen, and that said William said that he had destroyed the old note, and could not return it to Outen as he requested. Outenconcludes his bill by alleging, that the Graves iefused to give a new note, and that Wm. W. Graves was insolvent: wherefore, he prayed a decree against them for the amount of the first-note &c.

Previous to the passage of the statute of 1819,A executed a note, and B endorsed it with a view *631to obtain for A the loan of c”aml c°m loaned the money to A rat^oTiriter-3 est on the faith of the note,decided, that, it aptransac* tion was an" usurious loan N was *void°,*and and B ab-*0 c for the money loaned by lum to

*630Wm. W. and John Graves both deny that there was a sale of the note by John to Outen. They insist that the transaction was usurious, and John Graves resists a liability to Outen on that ground. Wm. W. Graves, in his answer, says that Outen loaned him $700 only, and took the note for $868, endorsed by John Graves, to secure the sum loaned, including therein usurious interest at the rate of two per cent, per month. Wm. W. Graves exhibits the note endorsed by John Graves, and avers, that he paid it off in the hands of Headington.

We are fully satisfied, upon an examination of the record, that the transaction was an usurious loan of money, by Outen, to Wm. W. Graves. The original note, having been executed prior to tlie passage of the act of 1819 concerning usury, was void. Consequently, John Graves, as well as Wm. W., were *631both absolved from the payment of that note. Wc cannot look upon the deposition of Samuel Owens, filed for the purpose of proving that the money was paid to John Graves, and thereby to sustain the allegations of the bill which assert that it was a purcilase of Wm. W. Graves’ note from John, in any other light than that of a forgery. Samuel Owens proves that he never gave any such deposition. That its contents are false is abundantly shewn by other evidence, even if it had been genuine. As there is no proof that John Graves ever executed a new note for the demand since the passage of the act of 1819, it follows that the court correctly dismissed the complainant’s bill so far as it related to John Graves. •

The new note executed by Wm. W. Graves, ac•eording to the testimony of Headington, was executed before the passage of the act of 1819, and, being no more than a renewal of the old note, was also void on account of usury. We cannot, therefore, perceive any ground upon which the decree against Wm. W. Graves can be sustained. It is unnecessa ry to consider the question presented in respect to the-payment of the note originally given, and which is exhibited in the answer of Wm. W. Graves. Nor is it important to determine, whether there be any sufficient evidence to establish the fact that Wm. W. Graves ever executed a new note. The usury vitiates the whole transaction, and interposes an insuperable barrier to the granting any relief. Upon a superficial examination of the record, when the application for a supersedeas was made, we were disposed to doubt whether the evidence was sufficient to justify the opinion, that the transaction was usurious, and, therefore,' a supersedeas was awarded in favor of Outen, but those doubts have been removed upon investigation. It results that the circuit court erred in entering a decree against Wm. W. Graves.

Wherefore, the decree on the writ of error, prosecuted by Graves, must be reversed, and the cause remanded, with directions to dismiss the complainant’s bill, with costs.

*632*Ihggin,*for Outen ; Chinn, for Graves.

There is no ground for reversal on Outen’s writ of error. Graves must recover costs on both writs of error.

*The counsel for Outen filed the following petition for a re-’*hearing, *which was granted:*

As regards so much of this controversy as depends upon the writ of error by Wra.W Graves, it is respectfully suggested, that the writ having issued in August, returnable to the present term, it did not, agreeably to the practice of this court, regularly stand for hearing ; that the petioner, apprised of this, and meeting with some obstacles in his attempts to gain counsel, particularly detailed in the affidavit filed, was not represented or heard, or had an opportunity to be heard.

As to the crime of forgery, of which he stands convicted by the opinion delivered, he declares the deposition of Samuel Owens, as filed, was regularly taken, and he believes that none would doubt, after an inspection of the testimonials attending it, none of which are contained in the present copy of the record. Indeed, the name of the witness, whose deposition was taken, by his adversary, is different. One being Owens and the other Owings. He does rely that when the two depositions shall come, upon process for that purpose, and compared, he will stand redeemed from this charge.

Touching the question who sold the note to the petitioner, he would beg leave to say, that it had not seemed to him to be very important. And his bill was written in accordance with the fact, whatever may he the proof, that the testimony upon which tiie adversary depends to negative this statement of the hill, is of the most questionable and loose character — such as that of Mr. Nash — a most imperfect detail of an impression of admissions &o, &c. Is it credible that a man of common sense, a man of business, alter he had stated the fact in his bill, repeated upon solemn affirmation in his answer, taken testimony to prove it, should, by some accidental conversation to the kinsman of his adversary, *633concede that the truth were otherwise, and that he had not only told a falsehood, but superadded the crime of perjury. See the case of Myers and Owsly, Hardin. '

Yet, as the opinion supposes, the counsel for the petitioner looks upon this as a very unimportant fact. The important enquiry relates to the usury. Concerning the law of this matter, the counsel would submit these reflections. The borrower presents the question in an answer in the nature of a cross bill, and upon it the cause is prepared on the subject of usury. And the act of assembly, authorizing such bill, certainly holds the borrower liable for the debt. It is notatthe pleasure ofthe defendant to hold merely an answer or a bill of discovery, at his election, after it has been treated, and the cause prepared upon it as a cross bill. If his proof may equal the requisitions of those who try the fact, then he waives his bill; otherwise he will avail himself of it. In this case, the charge of usury is made by a cross bill, in the nature of a bill of discovery, and the borrower stands bound accordingly.

But as to the fact. The petitioner was called upon to answer — and he not only negatives in general terms, but sets forth the consideration in particular. Now I would say, that I believe that no witness has affirmed to the usury, or to circumstance in law conducing to prove it. R. Houton” comes nearest, agreeably to my understanding of the proof. He. speaks of a conversation in which Outen mentioned, the loan. He is then asked as to the rate of interest, and answers that he does not recollect to have been told. The question is then propounded $ “ Do you or do you not believe that the money was loaned, agreeably to his conversation, at more than six per cent. ?” Answer. — I rather think it was my impression.” Before this court it need not, I trust, be deliberately argued, that the question was inadmissible ; that the answer is no evidence, and that, in revising the errors of the circuit court, this tribunal will give no' effect to questions and answers Which, upon exception, should have been expunged.

Another witness says, that when he asked Outen what was the interest received, the latter answered, *634that was best known *to*himself, or that was not to be known. Now, may it be inferred that interest was received,,and that, it was unlawful, because Outen does not tell Mr. Gorham, who appears to have no concern with it, all about it, Outen had already gone too far in speaking *of*his accommodations to their neighbors ; it occurred to him that it was a matter of some delicacy, and he stopped. He may have had many motives for silence on the subject. Indeed, prudence, without regañí to the feelings of Mr. Graves, and others, to whom he lent, forbid it. If ho never had conversed with Mr. Nish, or Mr. Gorham, perhaps it would not have *occurred to*them, at a future dav, to recollect what was *not*said, or repeat impressions which were not justified, as he now says. No answer, in evasion of an important enquiry, should compromit the interest of any man. Many other motives, than a consciousness that the Interest was too high, rafight be justly ascribed to Outen. Nay, I would not believe that any man at that day would have feared that Col. John Graves would have pleaded, or permitted to be pleaded, the statute against usury in avoidance of his engagement for so paltry a sum. I do not belieye that Outen feared it.

Thus I believe I have recited all the proof. Is it sufficient to ont.weigh the answer — and to impose a forfeiture of so large a sum of money — or were not the former views taken of this subject more correct ? Nay, as this tribunal lias often said, were it not more fair to conclude, that as the affirmative in this respect is with the defendants, they should have made more clear their case, and not to have left so much of doubt upon it ; and that, failing in this, the decree should be against them. A re-hearing is respectfully prayed. JAMES HAGGIN..

*Jlfler a re-argument of the.*cause, *Judge Underwood delivered the following opinion of the court:*

Upon a careful re-examination of the record in these cases, after re-argument, we cannot resist the conclusion that the transaction was usurious on the part of Outen. There is no proof of the *635Bale of the note by John Graves to him which can be relied on. The statements of the bill, and the statement of his answer to the cross bill upon this subject, are satisfactorily disproved,and we think it is clear, that it was an advance of the money to Win. W. Graves. We shall not comment on the testimony or conduct of the parties.

The money having been loaned prior to the passage of the act of 1819, severe as it may be, Outen js not entitled to any relief.

Wherefore, the decree as to John Graves is affirmed, with costs, and the decree as to W. W. Graves is reversed, with costs, and the cause remanded, withdicections to dismiss the bill.