#### *Fulcher v. Baker & al.

November, 1829.

Usury* — Rate Charged — Case at Bar. — In a bill for relief against usury, plain till charges usury exacted at rate of two and a half or three per cent, per month: defendant, in his answer, admits he exacted usury, but says he does not remember the rate; and there is no proof to ascertain the rate: Hki.d. thatin this state of case, the court should consider the rate of usury two and a half per cent, per month.

Alexander Fulcher exhibited his bill in the superiour court of chancery of Richmond, against Baker and Bell, setting forth, that he had given his note for 200 dollars to Baker, and that the note was tainted with exorbitant usury, Baker having extorted from him, from time to time, on successive renewals of the note, a premium for forbearance, at the rate of “two and a half or three per cent, per month, he did not recollect which;” and that Baker had assigned this usurious note to Bell, who had instituted a suit upon it, which he had prosecuted to a judgment on a forthcoming bond. The bill prai7ed an injunction to stay proceedings on the judgment at law, and relief from the usury.

The injunction was awarded.

Baker, in his answer, said, that the debt was originally due to him from Joseph Fulcher, who had put the amount into the plaintiff Alexander’s hands, to be paid over to him; that the plaintiff applied this money to his own use; and that the defendant, upon the plaintiff’s own voluntary proposition, did, upon some (but not upon all) renewals of the note, which the plaintiff gave him for the debt, receive more than the legal rate of interest for forbearance ; but he did not disclose the precise rate of the usury.

Bell, the assignee, denied all notice of the usury; and stated, that the note was transferred to him for a valuable consideration ; and that after it came into his hands, he had given Fulcher a long indulgence for the debt, at his request, and upon his promise, if he failed to pay it before a time agreed upon, to confess judgment; that Fulcher had accordingly confessed the judgment at law: and, therefore,

*Bell insisted, that Fulcher had no claim to relief in equity as against him.

Chancellor Taylor directed a commissioner to ascertain, if practicable, the balance of principal due on the note; that is, in effect, to ascertain what usury had been paid to Baker; and to ascertain also, what consideration Bell had given Baker for the note; for which purposes, he directed that the parties should be examined, by the commissioner, in solemn form.

The commissioner reported, that both defendants had attended him; that Bell gave Baker 150 dollars for the note; but that he could get no information, by which he could ascertain the balance of principal due thereon, or the rate of usury that had been stipulated or paid.

Hereupon, the chancellor, finding he could get no certain information, upon which to adjust the rights of the parties, dissolved *162the injunction, and dismissed the bill. And Fulcher appealed to this court.

Lyons for the appellant; R. C. Nicholas for the appellees.

*

See monographic *note*on “Usury” appended to Coffman v. Miller, 26 Gratt. 698.

PRR CURIAM.

Decree reversed, and cause remanded to the court of chancery for further proceedings to be had therein, in which the appellant Fulcher, in the absence of other proof than that now in the record, should be credited with two and a half per cent, per month (alleged in his bill to have been paid by him, on the renewal of the notes) from the date of the first note to the date of the note on which the judgment enjoined was rendered, and that the injunction should be made perpetual as to that sum, and dissolved as to the balance if any balance should remain.