#### *Grigsby v. Weaver.

April, 1834,

Richmond.

(AbsentTucker, P.,* and Cabell, J.)

Issue Out of Chancery — Setting Aside Verdict — Discretion of Chancellor.† — Upon a bill in chancery for relief against a contract alleged to be usurious, the chancellor directs an issue to be tried at law, to ascertain whether the contract was usurious or not; the jury finds the contract not usurious; the judge of the court of law certifies that the verdict, in his opinión, is contrary to the evidence, and certifies also the substance of the evidence adduced at the trial, some of which does not relate to the points put in issue b3' the pleadings in equity; the chancellor refuses to set aside the verdict (being himself satisfied it is right) and to order a new trial of the issue, and dismisses plaintiff’s bill: Held, it was matter of sound discretion *83whether the chancellor should direct the issue, or decide the questions of fact himself, and like matter of discretion whether he should set aside the verdict on the issue or not; and in the exercise of such discretion in this case, he properly refused to set aside the verdict, and order a new trial of the issue; he was not hound to set it aside, in deference to the certificate of the jmicro of the court of law against it.

Grigsby exhibited his bill against Weaver in the superiour court of chancery of Fredericksburg, setting forth, that in December 1815, Weaver lent him 1000 dollars in money, and two bonds of one Ewell for 466 dollars 66 cents; and that, on the 23rd May 1817, Grigsby with Eoote as his surety executed a bond to Weaver for 1636 dollars 44 cents, to secure the payment of the money and bonds so lent by Weaver to Grigsby: that Weaver exacted of Grigsby usurious interest on the money and bonds so le t, which usury was included in the bond of May 1817 for 1636 dollars 44 cents: that Weaver had recovered judgment against Grigsby and Foote on this bond, and sued out a fieri facias thereon, which had been levied on Grigsby’s property; and Grigsby had paid him 700 dollars in part of the judgment: and that, in 1819, Weaver exacted from Grigsby another bond for about 500 dollars, as further usurious ^'interest on the debt of 1636 dollars 44 cents. Therefore, the bill prayed, that Weaver should answer the allegations thereof, and, particularly, that he should discover the date, the consideration, and the amount, of the bond of 1819; and an injunction to restrain Weaver from proceeding to execute his judgment at law, and general relief.

The injunction was awarded.

Weaver answered, that in 1814 or 1815 (he did not remember the particular date) he lent Grigsby the two bonds of Ewell, amounting to the sum mentioned in the bill, and afterwards in the same year, 1000 dollars in money; that he took no security for these loans at the time, but in May 1817 he applied to Grigsby for security, who thereupon gave him the bond in which Foote was bound as his surety, for 1636 dollars 44 cents; but he denied, that any usurious interest was included in this bond; on the contrary, the amount of Ewell’s bonds and the 1000 dollars were added together, and only legal interest was computed from the dates of the respective loans thereof to the date of Grigsby and Foote’s bond to him. And as to the other bond in the bill mentioned, he answered, that Grigsby, on the 1st May 1821 (not in 1819, as the bill alleged), called on him, and, professing the great obligations he was under to him for his indulgence in not enforcing payment of the first bond, and for other services, tendered him a bond executed by Grigsby alone for 490 dollars 90 cents, which he at first refused to accept, telling Grigsby he neither expected nor desired such compensation; but, in Grigsby’s earnest importunity, he took the bond, though he even then considered it as so much blank paper, and had since offered to return it to Grigsby, who had refused to receive it; and he was now convinced, that the kindness Grigsby then professed, in giving him this last bond, was intended to entrap him.

Grigsby then amended his bill, alleging, that at the time he borrowed the 1000 dollars of Weaver, he agreed to give him an order on his attorney for the same amount, to be paid out of money for which the attorney was then prosecuting a suit for Grigsby, when the same should be recovered; and *he gave Weaver the draft on his attorney, accordingly: that sometime afterwards, Weaver told him he was not satisfied with the draft, because of the delaj's in the suit which was still pending, and asked him for his bond in lieu of this draft: that thereupon, he gave Weaver his bond for the 490 dollars 90 cents mentioned in Weaver’s answer to the original bill, which sum was ascertained by Weaver by a calculation of usurious interest, at a rate not now recollected: that Weaver, however, retained the draft on the attorney or 1000 dollars, and yet held it. And he called on Weaver to state the date of his loan to him of 1000 dollars, and that of his loan to him of Ewell’s two bonds; whether the loan of those bonds was not made in 1815? whether he was not informed, that the 1000 dollars was borrowed to enable Grigsby to subscribe for stock in the Warren ton bank, then about to be established? And the bill prayed, that the draft on the attorney for the 1000 dollars, and the bond for 490 dollars 90 cents, should be delivered up to be cancelled.

Weaver, in answer to the amended bill, admitted, that Grigsby gave him the draft on his attorney for 1000 dollars, mentioned in the bill; but he denied, that that draft had any connexion with the loan he had made to Grigsby. He said, that draft was given to him on the 4th September 1816; that Grigsby tendered the draft to him, and importuned him to accept it, as a compliment for the many services he had rendered him; that he had always considered the draft as blank paper, and was perfectly willing to surrender it: that he was also willing to give up the bond of May 1821 -for 490 dollars 90 cents, as to which he denied all the allegations of the amended bill, and repeated the account he gave of it in his answer to the original bill. As to the dates of his loans to Grigsby, he said that he had stated in his answer to the original bill, that the loan of Ewell’s bonds was in 1814 or 1815, but the particular date he could not then nor could he now recollect, as he kept no memorandum in writing of the transaction ; but, from circumstances, he was now induced to believe, *84that the loan of the bonds was in 1814, or prior thereto; he was certain the loan of the 1000 dollars was *in 1815, and the loan of the bonds was between one and two years before: he was unable to answer as to the particular date in 1815 when the 1000 dollars was lent;-he thought it was in the winter of 1814-15, or early in the spring of 1815; and he had some impression, that Grigsby did mention that he borrowed the money in order to subscribe for stock in the Warrenton bank.

Many affidavits of witnesses were taken and filed by the parties, which, in the opinion of the chancellor and of this court, did not establish usury in the bond of the 23rd May 1817, for 1636 dollars 44 cents, as charged in the bill.

The bonds of Ewell, which were lent by Weaver to Grigsby, were exhibited. They were two bonds executed by Ewell to John Gordon, both dated the 13th June 1814, for the purchase money of land sold by Gordon to Ewell; one for 233 dollars 33 cents, payable the 3rd February, 1815, and the other for the same sum, payable the 3rd February 1816; and the bonds were assigned by John Gordon to Samuel Gordon, and by him, on the 28th September 1814, to Weaver.

The chancellor directed an issue to be made up between Grigsby and Weaver, and tried at the bar of the circuit court of Culpeper, to ascertain, whether the bond of the 23rd May 1817, executed by Grigsby and Foote his surety to Weaver, for 1636 dollars 44 cents, was given for an usurious consideration; and that on the trial of such issue, the bills, answers, exhibits, and the examinations of such of the witnesses as should be dead, or unable to attend the trial, should be read in evidence, saving just exceptions &c.

The issue was accordingly made up and tried in the circuit court. The jury found, that the bond of the 23rd May 1817 was not given for an usurious consideration. And the circuit court certified the verdict to the chancellor; but it also certified-—

That it was clearly shewn and proved, at the trial, to the entire satisfaction of the court, that the consideration of the bond was usurious: that Grigsby borrowed of Weaver the two bonds of Ewell of the 18th June 1814, for 233 dollars *33 cents each, payable the 3rd February 1815 and 1816, sometime between the 18th July and the 15th December 1814, for the amount of which bonds Grigsby gave his own bond to Weaver, bearing interest from the date of the loan : that about and before the 15th December 1815, Grigsby borrowed of Weaver 1000 dollars in cash, for which he agreed to pay an interest of twelve or twelve and a half per centum per annum : that sometime afterwards, Grigsby gave Weaver the draft on his attorney for 1000 dollars, referred to in the amended bill; and the court would have believed, from the circumstances of the case, that that money, when received by Weaver, was intended to be applied towards the payment of the debt due him from Grigsby; but as Weaver, in his answer, said it was a gift, the court was prevented from coming to that conclusion; yet the court did not believe it was intended or understood between the parties as .a gift, and was at a loss, what to think of it: that on the 23rd May 1817, the bond in question for 1636 dollars 44 cents was executed; the consideration of which was compounded of Ewell’s bonds, with interest thereon from the time they were lent by Weaver to Grigsby, and the 1000 dollars lent, with interest from the date of the loan : that at the time of executing this bond, the agreement to pay usurious interest was still subsisting; and it continued till May 1821, when the bond for 490 dollars 90 cents was executed for the extra interest: that it was, however, proved, that Grigsby had frequently declared, that the debt due from him to Weaver was not usurious; that Grigsby had said, that he he had offered twelve or twelve and a half per cent, per ann. which Weaver had refused; and that Grigsby and Weaver had both declared, that the draft on the attorney for 1000 dollars, and the bond of May 1821 for 490 dollars 90 cents, were intended as presents; but the court believed these statements and declarations to be untrue: and that such being the material facts proved, the court considered the finding of the jury as clearly and palpably against evidence. The court further certified (at the request of Weaver’s counsel) that a former jury had had *the case under consideration, without agreeing for several days, and was at length discharged in consequence of the sickness of one of the jurors; that the jury which rendered the verdict, was one of uncommon intelligence and respectability, and their opinion was entitled to much regard, as well for the good sense, as for the honorable characters, of the jurors; and that no-other witnesses were examined upon the trial of the issue, but such as had before given their affidavits or depositions, copies of which were found in the record. Weaver’s counsel asked the court to certify, that there was no parol evidence before the jury, touching the particular date of the loan of Ewell’s bonds by Weaver toGrigsby; but the court refused to make such certificate, not that there was such evidence, but because the court would not state upon what evidence its certificate against the verdict was founded.

The chancellor disregarding the certificate of the judge of the circuit court, that the verdict of the jury upon the issue was against evidence, dissolved the injunction before awarded to Grigsby, and dismissed this bill: from which decree he appealed to-this court.

The cause was argued here, by Johnson for the appellant, and by Harrison and Stanard for the appellee.

The question of fact was very earnestly debated, whether the allegation of usury was sustained or not, by the evidence adduced in the court of chancery? But the only question of law was, Whether the chancellor erred in disregarding the certificate of the circuit court against the verdict found upon the issue? whether he ought not, in consequence of that certificate, to have ordered a new trial of the issue? whether he ought, upon the state of the proofs before him, to have directed the issue at all? The appellant’s counsel cited Pleasants & al. v. Ross, 1 *85Wash. 156; Southall v. M’Keand & al., Id. 336. The counsel for the appellees cited Pryor v. Adams, 1 Call 382; Ross v. Pynes, 3 Call 568; Rowton v. Rowton, 1 Hen. & Munf. 93; Nice v. Purcell, Id. 372; M’Rae’s ex’ors v. Wood’s ex’or, Id. 548; *Paynes v. Cole & al., 1 Munf. 373; Carter v. Campbell, Gilm. 159.

*

He heard the cause in the court of chancery,

†

issue Out of Chancery — Setting Aside Verdict Certified against by Trial Court — Discretion of Chancellor. — It is a matter of sound discretion whether a chancellor should direct an issue out of chancery, or decide the questions of fact for himself; and like matter of discretion, whether he should set aside the verdict on the issue or not; he is not bound to set it aside in deference to the certificate of the judge of the court of law against it. Henry v. Davis, 7 W. Va. 716, 719, citing the principal case. But see *foot-note*to Ross v. Pynes, 3 Call 568; *foot-note*to Pleasants v. Ross, 1 Wash. 156; monographic *note*on “Issue Out of Chancery" appended to Lavell v. Gold, 25 Gratt. 473.

In Lavell v. Gold, 25 Gratt. 476, 477, after setting out the facts and decision in the principal case, the court, through Judge Anderson, said: “Since the union of the two jurisdictions of law and chancery in Virginia, although it is the policy of the law, that the distinctive character of the two jurisdictions shall be preserved in the exercise of their respective functions, yet, as prior to the union of the two jurisdictions, the issue might be tried at the bar of either, it cannot now be a matter of any consideration whether it is tried on the common-law or the chancery side of the court. Nor can it be material, as the issue is to be tried before the same judge, whether tried on the common-law or chancery side of the court, to require the verdict to be certified to the same judge who presided at the trial. Though it might be well to observe this formality, it would be going too far. to hold, that the order made by the judge, on the chancery side of his court, in the cause there depending,' setting aside the verdict, which he thought contrary to the evidence, should be reversed, because he had not observed the formality of certifying to himself that it was against evidence.”

Same — Discretion of Chancellor. — A court of equity is not bound to send an issue to a jury; in its sound discretion and for its convenience it may do so, but, if it considers an issue unnecessary, and deems it proper that the case ought to go to a commissioner instead of a jury, it should so direct. In Rohrer v. Travers, 11 W. Va. 154, Judge Moore, speaking for the court, said that he considered this proposition fairly deducible from *Grigsby v. Weaver,*5 *Leigh*197, and Samuel v. Marshall, 3 Leigh 567.

Same — When Denied — General Rules. — See, citing the principal case, Beverley v. Walden, 20 Gratt. 154 (see note); Wise v. Lamb, 9 Gratt. 306, 308; *foot-note*to Pryor v. Adams, 1 Call 382; *foot-note*to Smith v. Betty, 11 Gratt. 752.

See generally, monographic *note*on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 478.

Same —Evidence—Depositions.—It is the settled practice in Virginia not to admit depositions taken in the chancery court to be read to the j ury, upon the trial of an issue unless proof be given that the witnesses are dead, or abroad, or otherwise unable to attend the trial. Powell v. Mason, 22 Gratt. 189, citing the principal case, Burwell v. Corbin, 1 Rand. 153, and Douglass v. McChesney, 2 Rand. 109.

Chancery Practice — Pleadings—Evidence.—The well *83settle! rule of pleading; is, that it a party is entitled to recover at all, he must recover on the case stated in his bill. An!, although the plaintiif may make out a case which under other circumstances would entitle him to the aid of the court, yet. if it is not the case made by the bill, he cannot recover. Kent v. Kent, 82 Va. 211; Southall v. Farish, 85 Va. 410, 7 S. 13 Rep. 534, both citing the principal case. See further, *foot-note*to Mundy v. Vawter, 3 Gratt. 519.

Usury — Proof of, Necessary. — See on this subject, *foot-note*to Crenshaw v. Clark, 5 Leigh 05. The principal case was cited in point in Smith v. Nicholas, 8 Leigh 350; Brockenbrough v. Spindle, 17 Gratt. 32.

CARR, J.

I understand this to be a bill for relief under the third section of the statute against usury. The object of the -plaintiff is not to retain the money which he has actually received from the defendant, and used for his own purposes, but to get clear of the usury, to which the law .superadds the interest and costs. He does not come full handed with proofs, but calls specially and particularly on the defendant for a discovery of the usury. To such bills I lend a willing ear: they seek not to inflict a penalty, and to make equity their hand maid in the act, but merely to escape a burden which the law has declared illegal and oppressive. Still the plaintiff’s case must be made out, to entitle him to relief.

The ground on which the bill seeks relief is, that in the bond executed by the plaintiff Grigsby, and Foote his surety, to Weaver, on the 23rd May 1817, for 1636 dollars 44 cents, there is usury included, on which bond a judgment had been obtained, and an execution sued out and levied on the plaintiff’s property. The rate of usury, or the amount of the excess included in the bond, the plaintiff does not state. He states, that sometime in the year 1815, he ■borrowed of Weaver two bonds of Ewell, amounting to 466 dollars 66 cents, and 1000 dollars in money; and that the bond of the 23rd May 1817 was executed to secure these sums, together with usurious interest. It is evident, that to establish the fact of usury, as well as the amount of it, we must ascertain when the loan was made, at least the loan of the bonds. These bonds are in the record; they are the 233 dollars 33 cents each — the one is payable the 3rd February 1815, the other the 3rd February 1816; and they bear interest only from those dates. The usury is said to consist in charging interest on these bonds before they became due. Aware of the importance of fixing the date of the loan, both the bill and amended bill call for a discovery as to that. In his first answer Weaver says, that he lent Grigsby the bonds in 1814 *or 1815, the particular day not recollected, and that sometime after, in the year 1815, he lent him the 1000 dollars, but took no security till May 1817. Being called on by the amended bill, to answer to this point more particularly, he said, that in his answer to the original bill, he stated the loan of the bond or bonds, to have been in the year 1814 or 1815, but the particular date he could not then nor could he now state, as he kept no memorandums •of the transaction in writing; but, from •circumstances, he was now induced to believe, the loan of the bonds was in the year 1814 or previous thereto; he is certain the loan of the 1000 dollars was in 1815, and that the loan of the bonds was between one and two years before; he was unable to answer as to the particular time of the year the 1000 dollars was loaned, but he thought it was in the winter of 1814-15, or early in the spring of 1815. This leaves the date of the loan of the bonds entirely unfixed. Assuming that the 1000 dollars was lent in March or April 1815, the interest on it, together with that on the bonds, from the times they were payable, will overgo, somewhat, the sum of 1636 dollars 44 cents; but take the latter part of May (say 28th), it brings it to 1636 dollars 38 cents, — six cents less than the bond of the 23rd May 1817. From these data it would seem that there was no usury in the bond for 1636 dollars 44 cents ; for we know, that any small difference caused by the mistake of the calculator or the scrivener, can never affect the character of the transaction. Shall we reject this evidence given by the respondent? He is most explicit in his declarations that no usury was included in the bond; and this being a bill of discovery, the answer deserves more than common weight. But if we reject it, where shall we look for better evidence? We must remember, that the plaintiff seeking to call the court of equity “into activity,” must shew it satisfactory proof that there is usury, and what is its amount; otherwise, it cannot relieve him. Where shall we find this proof? in the loose and vague conversations of the parties? They are both ways; and, certainly, the declarations of Grigsby are quite as strong to prove that the transaction was fair, as *that it was usurious. Shall we find this proof in the conduct of the parties? in the order on the attorney for 1000 dollars, and the bond for 490 dollars 90 cents? These unquestionably look suspicious; for presents of this kind made by a borrower to a lender, are naturally set down to the score of the trade and connexion between them: but, then, these transactions are long subsequent to the original loan, nor is there any proof so to connect them with it, as to taint it in the origin: and, moreover, if it might be permitted to have that weight, it would not support this bill, which seeks relief from so much of the bond of 1636 dollars 44 cents only, as is usurious.

Great reliance is placed on the certificate of the judge of the circuit court; and it is insisted, that, as he states the verdict to be against evidence, the cases of Pleasants & al. v. Ross, and Southall v. M’Keand & al. fire peremptory, that the chancellor should not be satisfied, but must send the issue to another jury. I have examined those cases ; and to my mind, the' farthest they go, is to say, that as a general rule, the chancellor ought not to be satisfied, where the certificate is against the verdict; admitting, at the same time, that the rule only holds, where there is no circumstance appearing to vary the case. Thus, in Ross v. Pynes, and in M’Rae’s ex’or v. Wood’s ex’or, there were two verdicts of the jury one way, and two certificates of the judges against them; and in each case the court said, that the chancellor ought to be satisfied with the finding, notwithstanding the opinion of the judge. If one verdict is peremptorily to be pronounced unsatisfactory, because of a certificate against it, why is a second to be satisfactory, with the same *86battery against it which prostrated the first. The chancellor is not obliged to send an issue to a jury; he is himself the trier of facts by the constitution of the court. In his discretion, and for his convenience, he may send issues to the bar of the courts of law, or try them at his own bar, for the satisfaction of his conscience: would it not seem strange, then, that because he has once sent an issue to a jury, he must continue to have new trials of it, until he can get a court and jury to *agree, as to the weight of evidence? Suppose, in the meantime, he should have changed his mind, and upon a closer examination of the record, become satisfied that an issue was unnecessary; that the case ought to be sent to a commissioner instead.of jury; or that he had no jurisdiction: must he still persevere in sending the issue to a jury? In the case before us, he might well change his mind; for, in my opinion, the plaintiff’s proof was too defective to render an issue proper. Issues are not directed to enable parties to get a new supply of evidence where they have not enough : but, where there is clashing and conflicting evidence, leaving the fact in doubt, and rendering it necessary to weigh the character and credibility of witnesses, the chancellor, who sees them only on paper, considers that his conscience can be better satisfied by the verdict of a jury who shall see and hear them. In this1 case, there is no clashing. The point was to fix usury in the bond of May 1817, the consideration of which was confessedly composed of the loans of the bonds of Ewell, and the 1000 dollars. There was no charge, that usury had been taken on the 1000 dollars, but on the bonds only; and that, in calculating interest from the date of the loan, instead of the time when the bonds became due. Now, to shew this usury, it was most clear, that the date of the loan of these bonds must be somehow fixed; for without this starting point, no result could be produced. The plaintiff called on the defendant twice for information to fix this point: he answered to each bill that he could not possibly speak as to the time, as he had taken no written memorandum; and the plaintiff could bring no witness to speak as to this date. Here, then, was a clear defect of proof, a failure to establish the very point upon which the usury, and the quantum of it, depended. It is thebounden duty of a plaintiff who calls for the solemn judgment of a court, to furnish that court with something like certainty to rest that judgment on: he may draw this from the defendant if he can; he may prove it by witnesses; he may establish it by documents; but in some way he must shew it, or he fails, and his bill should be dismissed. This is, in my mind, that *case; and instead of an issue, the bill ought to have been dismissed for defect of proof. But the chancellor sent the issue to a jury, and it is said he was bound to obey the certificate of the judge of the circuit court.

Bet us look a moment at this certificate. Generally, when a judge is asked to certify, he states (without detailing the proofs at all) that the weight of evidence was against the verdict; and, in such case, the chancellor can have no knowledge of what evidence was heard by the jury: but here, the judge sets out by stating that usury was proved, and then goes into a statement of the evidence, shewing plainly on what grounds his conclusions rested; and to leave no doubt of this, he concludes his narrative, that “such being the material facts proved, the court considered the finding of the jury clearly against evidence.” Again, the judge certifies, that no other witnesses were examined, upon the trial of the issue, but such as had heretofore given their affidavits or depositions, copies of which were found in the record. Now, there being copies in the record, of all that those witnesses had before sworn, who gave testimony on the trial of the issue, can we presume, that any one then swore differently in the face of his former oath? if he had, would not this have utterly discredited him? and would not such a fact have been certified, when the judge was telling us he had none but the witnesses in the record? It is to be noticed too, that there was no contradiction here, between the witnesses. But, particularly, the judge was pressed to certify, that here was no such parol evidence as would fix the time when Ewell’s bonds were lent: he said, he would not make such certificate; not that there was such proof, but because he did not choose to state the evidence his certificate rested on. This seems to me very like an admission, that there was no such proof —but there did not need such admission; for, in another part of his certificate, he expressly states the proof to have been, that these bonds were lent between the 18th July 1814 and the ISth December of the same year; leaving a clear space of five months, any day of which we have as much right to assume as another. Is it possible *upon such guessing as this, to ask the decree of a court? to ask it to say, that this or that particular sum composes the usury, and must be stricken off? I think not.

Both the case, then, as presented by the record, and that certified by the judge, leave this point, this vital point, unfixed. Why, then, should the chancellor have sent back the issue? It had been before two juries; all the evidence which could be obtained, we must conclude, had been adduced : could time furnish new or better proof? On the contrary, it was every day eating away something of that which existed ; witnesses die, or forget, and documents are lost.

I think, therefore, upon all these grounds that the chancellor did right in dismissing the bill.

BROOKE, J.

I concur in the opinion that the decree should be affirmed. When a party comes into a court of equity for relief, he ought to make out a case by proof, and not by conjecture, in order to entitle him to it. In the case before us, it seems to be admitted, that the proofs in the record are defective; that it is not satisfactorily proved, when Ewell’s bonds and the 1000 dollars were lent by Weaver to Grigsby - without which proof it is impossible to decide, whether the bond of the 23rd May-*871817, on which Weaver’s judgment at law was founded, was usurious or not. This fact was as susceptible of proof in the court of chancery, as any other fact in the case; and there being no clashing of testimony in the record, nor any impeachment of any portion of it, I think the chancellor ought to have dismissed the bill on the hearing. But he directed an issue to try the question of usury; that is, to ascertain the facts as to the date of the loan of Ewell’s bonds, and that of the loan of the 1000 dollars; and a jury (certified by the judge to be highly respectable for intelligence and integrity) found a verdict that the bond of May 1817 was not usurious. There was some evidence adduced on the trial, which was not within the allegations of the bills. Whether this evidence influenced the judge in coming to the conclusions stated in his certificate, we do not know. That no agreement is 'x'proved, that the loan was on twelve or twelve and a half per cent, interest, is admitted by the judges here; yet the judge who presided at the trial of the issue, by assuming the time when the loan was made, has come to that conclusion. Weighing the verdict of the jury, which is supported by the evidence in the record, I think (admitting the chancellor was right in directing the issue)' that the verdict must outweigh the certificate of the judge. Both were intended to satisfy the conscience of the chancellor; and although if the judge had certified, that the verdict was contrary to the evidence, and no more, he would have been bound to direct a new trial, yet when the certificate of the judge assumes facts, and shews that he did not believe some of the evidence which the jury may have credited (as, for instance, the evidence, that both Grigsby and Weaver had declared the bond not usurious), I cannot think the chancellor was bound to set aside the verdict; especially, as it is fairly to be inferred from the certificate, though vaguely expressed, that there was no other evidence before the jury, than that found in the depositions in the record. Usury is an oifence against the statute, which ought to be well proved before a party is convicted of it: I do not mean by direct proof only, but by inevitable inference, drawn from established facts. I am of opinion, that neither existed in this case, and that the chancellor erred in directing the issue, on the ground first stated; and that he was right in dismissing the bill.

BROCKENBROUGH, J.,

dissented. He said — I am disposed to pay more respect to the certificate of the judge before whom the issue in this case was tried, than the chancellor did. A series of decisions has, I think, established the general principle, that where the judge of the court of law certifies, that the verdict is against evidence, the conscience of the chancellor should not be satisfied with the finding. It is true, the object in directing the issue is to obtain the decision of the jury on the disputed matter of fact; but I can see no reason why the salutary control which the courts of law exercise over verdicts in trials at common law, should not prevail *when they are called on to superintend the trial of issues directed by a chancellor. In the former case, they will grant new trials where the verdict is palpably against evidence; in the latter case, they cannot grant a new trial, but their opinion on the verdict is just as important as when they have entire control over it. To prove that the chancellor ought not to be satisfied where the certificate of the judge is against the verdict, I refer to what is said by president Pendleton in the cases of Pleasants *&*al. v. Ross, and Southall v. M’Keand. Nor is the principle there laid down shaken by Ross v. Pynes, and M’Rae v. Woods: in the former case, there had been a verdict for the plaintiff in the suit at common law and a judgment of the district court, and the case having been carried into equity by an injunction, and an issue directed, the issue was found for the same party, and heavier damages assessed than before. The certificate of the judges was not allowed to prevail over two concurring verdicts, and the opinion of the first court of law. In M’Rae v. Woods, there were also two concurring verdicts, and on the trial of the last issue, the court certified, that there was no evidence adduced except that which appeared in the record. That evidence was contradictory ; and this court was of opinion, that it was difficult, if not impossible, to reconcile it. Under these circumstances it held, that after a protracted controversy of thirty-eight years, and the opinions of two juries, the verdicts ought to prevail, and the dispute to end. No case has been produced, in which, after a single trial, the certificate of the judge against the verdict, has been entirely disregarded.

In the present case, the judge did not content himself with making a general certificate, that the verdict was contrary to evidence; he has certified the facts which were proved on the trial. It is urged, that he had no other evidence belore him than that which appears in this record, and that the chancellor could decide for himself, whether the judge had drawn the proper inferences from that evidence, and whether that evidence did prove the facts which he certified to have been proved. I do not think it clear, that he x'had no other evidence than that which we see. He certified, that there were no other witnesses examined than such as had heretofore given their affidavits or depositions ; the direct inference from which statement, is, that there was parol evidence before him; that the witnesses, who had given their depositions, were examined viva voce in open court. This is also apparent from the circumstance, that Weaver’s counsel applied to him to certify that there was no parol evidence before the jury touching the fact as to the time of the loan of Ewell’s notes; leaving the strong inference that there was parol evidence touching other facts than that specified. There having been, then, parol evidence before the circuit court, we cannot say, that the chancellor had the same evidence before him, which the judge of the circuit court had. The witnesses, although the same, might have been examined and cross examined, on many points not noticed *88in their depositions, and touching numerous circumstances, which though apparently trivial, were really important, and might have had an important bearing on the main question, but which did not occur to the parties or witnesses, when their depositions were taken in the country. The record does not shew the manner of the witnesses, by which the chancellor could judge of the weight of the evidence. In short, we all know the great difference between a trial by depositions, and a trial by viva voce examinations; and we cannot therefore say that the chancellor had, or that this court has, the same materials on which to found a judgment that the judge of the circuit court had.

As the judge has certified the facts which were proved before him, I think we must see whether they support the allegations of the plaintiff. If they do so, I cannot perceive how the verdict can be satisfactory ; but if they are not relevant to the case, or do not support the charges in the bill, the certificate was rightly disregarded. I admit also, that if the judge has certified facts as proved, which shew that the defendant practised usury on the plaintiff, yet if the plaintiff has made no such allegation in his bills, the facts so certified, however important and however true, can have no weight. *On comparing the pleadings with the certificate, I have come to the conclusion, that some of the facts certified ought to have been held fatal to the claim of the appellee, for the whole amount of the bond on which the judgment at law was rendered,- — whilst others, though proved, were not such as the plaintiff had complained of, and were therefore out of the case.

The bill charges, amongst other things, that in December. 1815, the sum of 1000 dollars in cash, and two bonds of Ewell of which the principal was 466 dollars 66 cents, were lent by the defendant to the plaintiff; that on the 23rd May 1817, the plaintiff with Foote as his surety executed a bond to the defendant for 1636 dollars 44 cents; that the defendant exacted of him an usurious rate of interest on the money and bonds so lent, which usurious interest was included in, and made part of the bond. The issue directed, was to ascertain, whether that bond was given on an usurious consideration. The judge certified, that the three following facts were proved: 1. that Ewell’s bonds were lent between the 18th July and the 15th December 1814; 2. that afterwards, about and before the 15th December 1815, the sum of 1000 dollars was lent; and 3. that on the 23rd May 1817, the bond for 1636 dollars 44 cents was executed, and that it was compounded of Ewell’s bonds with interest from the date of the loan or transfer of them, and the 1000 dollars with interest from the date of that loan. These three facts are within the allegations of the bill, and support them. The bonds of Ewell were payable at periods posteriour to the transfer of them, namely, one of them on the 3rd of February 1815, and the other on the 3rd February 1816. If, then, Grigsby was to pay interest on them from a prior period, and the principal with this additional interest entered into the composition of the bond of 23rd May 1817, can there be any question, that it was tainted with usury?

I admit, it is settled, that a man may lawfully purchase a bona fide bond at a discount; Hansbrough v. Baylor, 2 Munf. 36. But I have yet to learn, that a lender may take *a premium for a bond, that he may exact more for it than its value, without subjecting himself to the penalties of usury. The statute declares, that no person shall upon any contract take, directly or indirectly, for the loan of any commodity, above the value of six dollars for the forbearance of 100 dollars for one year. It was once doubted, whether the practice of bankers in discounting bills, by taking interest in advance, was not within the statutes of usmy, for “upon a nice calculation,” said lord Mansfield, “it will be found, that the practice of the bank in discounting bills exceeds the legal rate of interest;’ ’ yet it was determined not to be usury on the ground of long established mercantile usage, which the statute did not mean to destroy; Cowp. 115. So with us, it is looked upon as a settled point, that, in banking transactions, it is not usury to take interest in advance on discounts or loans and this is on the ground, that an authority to discount or to make discounts, granted by all the bank charters, by the very force of the terms, necessarily includes an authority to take interest in advance; Stribbling v. Bank of the Valley, 5 Rand. 144; Fleckner v. U. S. Bank, 8 Wheat. 338. But, in the ordinary transactions of buying and selling, transferring and assigning bonds, I know of no mercantile usage, nor of any statutory enactment, that will authorize the lender to take more for the bond than the legal rate of interest.

I understood the counsel for the appellee as endeavouring to obviate the force of this objection, by stating cases in which it may be lawful to give more for a bond than the legal rate. Thus, if a Louisiana or Mississippi bond, where the rate of interest is higher than with us, be sold here, such a contract would be lawful. This may be so, but the cases are not alike. The bonds in this case are Virginia bonds. The transferring of them, for the purpose of lending their avails to another, will not, according to my apprehension, justify the taking for them more than the law allows.

It has been urged, that notwithstanding the certificate of the judge that these facts were proved, yet the chancellor *ought to have disregarded it, on the ground, that there was probably a mistake in the calculation, by which mistake the amount due at the time of taking the bond of the 23rd May 1817, was made larger than it ought to be. I agree that a miscalculation would never charge a party with usury : but it will not be denied, that whenever the intention is to take more than legal interest, the party is chargeable with usury, although he may never have heard that such was the law, and may not have known that he was violating it. Childers v. Deane, 4 Rand. 410. But here, there 'is no ground for believing, that there was a miscalculation: the judge certifies, *89that the interest on the bonds was calculated from the time they were lent. I know the usury thus taken, was small in amount; but, nevertheless, it vitiated the contract, and justified the appellant in coming into a court of equity to compel the lender to receive his principal money without any interest, under the 3rd section of the statute against usury.

I said, there were some facts certified by the judge to have been proved, which were not complained of, and therefore are out of the case. These facts are, that for the loan of 1000 dollars about and before the 15th December 1815, the plaintiff agreed to pay the defendant at the rate of twelve or twelve and a half per cent, interest, and that on the 23rd May 1817, when the consolidating bond was taken, that agreement was subsisting, and continued to subsist till May 1821, when the usurious bond of 490 dollars 90 cents was taken. These certainly are most important facts, and if there were allegations in the bill to justify such proof being made, I could not hesitate to say, that the whole of the contract, and not a part only, was usurious, and that another jury ought to pass on the whole subject. I think too, that the record exhibits cogent proof to justify the judge in certifying, that such were the facts. How else can we rationally account for the bond of May 1821, for 490 dollars 90 cents? Calculate the interest on 1000 dollars at twelve and a half per cent, from the 23rd May 1817 to the 1st May 1821, when the smaller bond was given, and it produces ^almost exactly that very sum. I know, that and agreement to pay illegal interest after the loan made, will not vitiate the contract of loan, unless it can be fairly inferred, that such agreement or understanding existed at the time of the loan; but a bond taken at a subsequent period, with proof of declarations by the lender, that he did lend at the rate which the bond exhibits, may justify the inference, that the loan and the corrupt agreement were simultaneous. And I should not think, that such inference could be repelled by the flimsy pretext, that a draft at one time of 1000 dollars, and a bond at another for nearly 500 dollars, both of which were actually delivered and received, were gratuitous donations from the borrower to the lender. It is an absurd and incredible proposition, that a needy and embarrassed borrower should make a present of large sums to a thriving wealthy lender.

But it so happens, that the proof on this subject, however strong and apparent to the mind of the judge, was unavailing. He did not probably attend much to the pleadings, but looked to the issue he was required to try. The original bill no where alleges, that at the time of the loan of the 1000 dollars, there was any agreement to pay any usurious interest for the use of it, other than the usury which was included in the bond. Nor is there any allegation in the original bill, that at the time of taking the bond of the 23rd May 1817, the agreement to pay such usurious interest was subsisting, and continued to subsist till May 1821. On the contrary, after charging that the whole of the previous usury was included in the bond, it merely charges, that at a subsequent period, namely, in 1819, another bond for about 500 dollars was exacted, which was the extra and usurious interest on the debt, evidenced by the consolidating bond of the 23rd May 1817. Nor does the amended bill allege any agreement, at the time of the loan of the 1000 dollars, to pay twelve or twelve and a half per cent. ; but it alleges, that for the use of it, the plaintiff agreed to give the draft on his counsel before mentioned. This agreement for the draft is not the one meant by the judge, when he says it was K'agreed to give twelve or twelve and a half per cent. ; but, on the contrary, he says, that this draft was given sometime afterwards, without saying that it was given in pursuance of a previous agreement. The allegation in the amended bill is different entirely from that which the judge says was proved, and, therefore, those two important facts proved before him, namely, the agreement to pay twelve or twelve and a half per cent., at the time of the loan of the 1000 dollars, and the subsistence of that agreement when the bond of May 1817 was executed, are entirely out of the case. Nor does the amended bill allege any new agreement at this latter period for that usury, but places the bond of 490 dollars 90 cents on the footing of a substitute for the before mentioned draft. But, although these last facts are out of the allegations of the bill, and therefore the certificate of the judge as to them should be disregarded, yet the other facts, which he certifies to have been proved, suoport the allegations; and I, therefore, think that the conscience of the chancellor should not have been satisfied with the verdict, and that it should be set aside.

The counsel for the appellee made a calculation from data, which he supposed the answer furnishes, by which he made the amount due from Grigsby on the 23rd May 1817, within a few cents of the amount of the bond on that day executed, without calculating the interest on the bonds from the day of their transfer, but from the days on which they respectively became due. This has been adopted also by my brother Carr. It is founded on the supposition, that the 1000 dollars were lent late in the spring of 1815. If, instead of taking a day not late but early in the spring, we calculate interest on the 1000 dollars, and then calculate interest on the bonds from the days on which they are respectively payable, we produce a sum too large for the bond of 23rd May 1817; and, therefore, this argument proves too much. But let us attend to the terms of Weaver’s answer to the amended bill. He says, he is now induced to believe, that the loan of Ewell’s bonds was in 1814, or prior thereto: he is certain, that the loan of the 1000 dollars was in 1815, *and the loan of the bonds was between one and two years before. He is unable to answer as to the particular time of the year 1815, in which the money was lent, but thinks it was in the winter of 1814, or early in the spring of 1815, and he has some impression that Grigsby did mention to him that he had a wish to become a subscriber to the Warren-*90ton bank then spoken of. Nothing can be more vague as to time, than this answer of the defendant, made to a pointed and direct question put in the amended bill, namely, at what time of the year 1815 did he lend the plaintiff the sum of 1000 dollars? And whether it was not known to him, that it was for the purpose of subscribing to the Warrenton bank then about to be established? If there is any thing of which he is certain, it is that he lent the money in 1815, and the loan of the bonds was between one and two years before, that is, more than one year before the loan of the money. Now, if the money was lent early in the spring of 1815, say, the 1st April, then the bonds must have been lent early in the spring, or late in the winter of the year before, that is, say February, or March 1814. But that is impossible, for the bonds were not executed by Ewell to John Gordon, till the 13th June 1814, and they were not assigned to Weaver until 28th September 1814; at least, such is the date of the assignment of one of them. Now, let us suppose that the bonds were transferred by Weaver to Grigsby, on the very day that they were assigned to him, and that the 1000 dollars were lent between one and two years, that is, more than one year after the transfer of the bonds. I shall assume the 20th of October 1815, as the date of the loan of the money, for that is more than a year after the bonds mighi have been transferred. Then, let interest be computed on the bonds, not from the day they were due, but from the day of their transfer, according to Weaver’s admission in his first answer, and calculate interest on the money loaned, from the 20th October. The result is as follows: the principal sum of Ewell’s two bonds was 466 dollars 66 cents, and the interest thereon from the 28th September 1814 to the 23rd May 1817, is 74 dollars 28 cents; the principal *of the money loaned was 1000 dollars, and the interest on it from the 20th October 1815 to the 23rd May 1817, was 95 dollars 50 cents: the aggregate is 1636 dollars 44 cents — making the precise sum for which the bond of the 23rd May 1817 was taken; and if so, it was usurious, because of the interest calculated oq Ewell’s bonds from the time of their transfer. I do not mean to say, that the evidence in the cause proves that I have assumed the right data for my calculation; but I do maintain, that it furnishes better ground for my calculation than the other.

I think the chancellor did right in directing an issue, but the issue was too broad. It should not have been, whether the bond was given for an usurious consideration, but to ascertain the following facts: 1. At what time were the Ewell bonds transferred from Weaver to Grigsby? 2. At what time was the loan of 1000 dollars made by Weaver to Grigsby? and 3. Of what sums was the bond of 23rd May 1817 compounded?

On the whole matter, I am of opinion, that the decree should be reversed with costs, and the cause remanded, with directions to set aside the verdict, and direct a new issue as above mentioned.

Decree affirmed.