#### *Ellzey v. Lane’s Executrix.

Argued Monday, Feb. 22d, 1813.

1. Chancery Practice — Plea of Statute of Limitations*— When It flay Be Received. — The plea of the “Statute against usury” ought to be received in a court of equity, at any time before the decree is final;— if there be strong reasons, from the statement in the bill, for believing that the matter of such plea may be true.

2. Same — Same—Condition of Receiving. — If the party tendering such plea, has been improvidently allowed to file a bill of review, which has therefore been dismissed at his costs, it is unreasonable to require him to pay those costs, in a limited time, as the condition of receiving his plea.

3. Same — Evidence—Answer to Dismissed Bill of Review.† — Where a bill of review has been dismissed, on the ground that it ought not to have been allowed, the decree not being final; the complainant in that bill is not authorized, in his subsequent defence, to make use of the answer to the bill of review, as evidence in his favour.

After the decision of the Court of Appeals, dismissing (as having been improvidently allowed) the bill of review exhibited by E)llzey against Dane, (see 2 H. & M. 594,) the decree of the Court of Chancery intended to have been reviewed, (the date of which was May 26th, 1801,) being interlocutory, and not carried into effect; and the suit having abated by the death of Dane, the plaintiff ; a subpoena scire facias to revive it was awarded, on the motion of Sally Dane his executrix ; — which being returned executed, the defendant E)llzey appeared, on the 20th of E'ebruary 1810, for the purpose of shewing cause against the revival, and tendered to the court a plea of the statute against usury ; —charging that, from the scope of the bill originally filed by the said Dane, and the deed of mortgage attempted to be enforced thereby, it was manifest that the contract was usurious. It appeared from that bill, and the deed with the endorsement upon it, that, on the 9th day of November 1799, E)llzey conveyed to Dane 475% acres of land, for the sum of four hundred and seventy-five pounds, fifteen shillings ; and Dane agreed that if the said E)llzey would, within, or at the end of, six weeks from that day, pay to him the said sum of money, with legal interest on the same, and the rent for that year, amounting to forty pounds, he would give up the said deed. (1)

The chancellor refused to receive the plea, but on the following terms ; — “namely, that the defendant pay to the plaintiff, in twenty days from this day, the costs expended by her and her testator, as well in the court of appeals as in this court, in defending the suit brought by the defendant for the purpose of reviewing and reversing the decretal *order passed in this cause the 26th day of May 1801 —and ordered that, if the said costs be not paid accordingly, this suit, and the proceedings therein had, stand and be revived in the name of the present plaintiff, as an act of this day, and be in the same plight and condition as at the death of her testator.

The costs above mentioned were not paid by EJllzey. The mortgaged premises were afterwards sold, and a final decree confirm^ ing the sale was made on the 6th of E'ebruary 1811; from which EJllzey appealed.

Friday, March 12th 1813,

*

See monographic *note*on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.

†

See monographic *note*on "Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649; monographic *note*on “Answers, In Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571. The principal case is cited in Lane v. Ellzey, 6 Rand. 664.

(1)

 Note. See7Bac. (Gwyllim’s ed.) p. 191; 3 Atk. 154; Cowp. 795.

JUDGE) ROANE)

pronounced the court’s opinion, that, although the statement made in the bill may possibly be explained so as to shew the transaction not to have been usurious, yet, there being strong reasons from that statement to believe that the matter of the plea in the proceedings mentioned may be true, which defence, where it is probably correct, ought at all times to be received in a court of equity, (so long as the case is within the power of that court,) without annexing any unreasonable condition thereto, (such as that imposed *35on the offering the plea in this cause ;) the said decree, as also that of the twentieth day of February 1810, are erroneous.

Both decrees reversed, and cause remanded to the Court of Chancery, with directions to that court to set aside the decretal order of the 26th day of May 1801, and to receive the said plea, or such other plea or defence as the party may offer, touching tjie usury of the transaction in the bill mentioned : — but, in making such defence, the appellant is not to use the answer filed to the bill of review in the proceedings mentioned; that hill, and all the proceedings founded thereon, having been dismissed by the decree of this court.