#### Clarkson’s Adm’r v. Garland and Another.

March, 1829.

(Absent Brooke, P„ and Coalter, J.)

Usury — Case at Bar, — C wanting: to raise $2335, tells J. this, and offers him as many slaves as will command that sum: upon which, J. pays him $2335, in gross, for 16 slaves, and C. gives him a bill of sale thereof: and it is, at the same time, agreed, that the slaves shall remain in C.’s possession, on hire, for one year; and if at end of the year, C. shall pay J. $2935, J. shall, in consideration thereof, re-sell the. slaves to him; if any of the slaves die during year, C. to pay same price and no less, for survivors; and if C. shall not pay the $2935 *59punctually. J's agreement to re-sell tliem to Mm to be void. Hiold, a shift to evade statute of usury, and contract usurious.

Same — When Equity Will Not Disturb Sale under Usurious Deed of Trust. — C. contracting usurious debt to U. gives him a deed of trust of slaves, to secure it: afterwards. G. voluntarily surrenders trust slaves to trustee, to he sold to satisfy the debt: at trustee’s sale, in itself lair, (1. buys greater part of trust slaves, and the proceeds of sales are applied to the debt. IIkld, though deed of trust usurious, yet trustee’s sales of che subject to G. the usurious creditor, shall not be disturbed in equity.

Same— Equitable Relief — Usury.*—1Though where one resorts to equity for relief against usurious debt yet unpaid, he shall be required to pay only the principal advanced to him without even lawful interest, according to the statute of Virginia ; yet where debtor seeks, in equity, an account of and decree for money already paid on usurious contract. the measure of relief is, the excess paid above principal and lawful interest; and if his payments exceed principal and lawful interest, the surplus with interest shall be decreed to Mm.

Clarkson exhibited his bill against Garland and Jacobs, in the superiour court of chancery of Lynchburg, setting '"forth, that on the 23d March 1815, he in fact borrowed of Jacobs the sum of 2335 dollars, at exorbitant usury, though this usurious loan was covered by the device of a sale of 16 slaves by Clarkson to Jacobs, redeemable by Clarkson, on payment of 2935 dollars, on or before the 23d March 1816; and on the 22d May 1815, he in fact borrowed of Jacobs another sum of 2666 dollars 26 cents, likewise on usury, though this loan was also covered, in like manner, by the device of a sale of 14 slaves by Clark-son to Jacobs, redeemable by Clarkson, on payment of 3394 dollars, on or before the 23d March 1816. That, the slaves not being redeemed by Clarkson, Garland, with full knowledge of the usury, by an arrangement with Jacobs, became jointly and equally interested with him in the contracts; and, in August 1816, they procured Clarkson’s bond for 7000 dollars, being the aggregate of the two usurioits debts contracted to Jacobs, with the addition of further usury for forbearance. That, at the same time, Clarkson was indebted to Garland on other accounts, and Garland exacted usury for forbearance of these debts also; for which, and the usurious premium for forbearance thereof, amounting together to 2465 dollars 56 cents, Clarkson gave Garland another bond. And then, Clarkson, by a deed of trust, mortgaged 28 slaves, to secure payment, in March following, the debts due by both the bonds, with interest from the dates thereof. That, after these bonds and the deed of trust were executed, Clark-son delivered Garland his crop of 21383 pounds of tobacco, for which he was entitled to credit at the rate of 20 dollars per cwt. being the price stipulated by the previous contract; but Garland gave him credit for it, only at the rate of 11 dollars and some cents per cwt. That a large balance of the debts remaining unpaid, Garland, on the 6th August 1817, made a new contract with Clarkson, for farther forbearance thereof, on a new usurious premium, and for the forbearance, on usurious premium also, of other debts claimed by Garland of Clarkson; and then took Clarkson’s bond for 11250 dollars ^payable (with interest from the date) in June 1818: and Clarkson, to secure payment of the debt due by this bond, by a new deed of trust, mortgaged fifty-one slaves. Of what items this large debt of 13250 dollars was composed, Clarkson said he did not exactly know, and he called on Garland to explain ; it consisted in part of the old balance of the former usurious debts, of new usurious premiums for forbearance thereof, of other debts claimed, and usurious premiums for forbearance of them too; a very large proportion of the whole sum was usury. That Clarkson paid Garland 15 hogsheads of tobacco, which Garland was to give him credit for, at the then fair market price, which was from 8 to 11 dollars per cwt. That in November 1818, Garland caused a sale to be made, of the slaves mortgaged by the deed of trust of August 1817, for the payment of the debt of 11250 dollars thereby secured: at which sale, two of the slaves were purchased by Garland, and twelve by third persons, for the aggregate sum of 7270 dollars: ten others were bought in, nominally by Garland, but really for Clarkson, at the price of 3856 dollars; Garland having agreed to let him retain them, at the prices at which he should buy them; but Garland afterwards refused to let him have them, without a premium of 600 dollars on the cost, to which extortion Clarkson was, in his necessities, forced to submit. That, after this sale, farther forbearance, for new usurious premiums, was given : and a new bond, dated in November 1818, was exacted of Clarkson, for 7483 dollars 70 cents, payable in November 1819, (embracing the accumulated usury of the former transactions, with new usury, the 3856 dollars, the price of the ten slaves, and the 600 dollars advance thereon) and a new deed of trust was executed by Clarkson, mortgaging 25 slaves to secure this debt. After this, Clarkson paid Garland 8 hogsheads of tobacco, the price whereof, 588 dollars 60 cents, Garland credited on the judgment he afterwards obtained on the last mentioned bond. That in November 1819, Garland caused a sale to be made of the slaves mortgaged *by the last-deed of trust, and purchased the greater part of them himself, at a great sacrifice; which he effected by refusing to let his own creditors bid at the sales, to the amount of the debts he owed them. The proceeds of these sales were 6020 dollars 50 cents, which sum was also credited on the judgment Garland afterwards obtained on the bond of November 1818. This judgment, recovered against Clarkson in August 1821, was for 7483 dollars 70 cents, the debt mentioned in the bond, with interest thereon from November 14th 1818, subject to credits for the said sums of 588 dollars 60 cents, paid October 1st 1819, and 6020 dollars 50 cents paid November 25th 1819. Clarkson acknowledged in the bill, that he had had, during the course of these transactions, various dealings with Garland, for merchandize bought of him; and that he could not state, exactly, how the debts he *60had contracted in those dealings, had been brought into the bonds and deeds of trust before mentioned. But he charged, that all the contracts, bonds and deeds of trust, specified in his bill, were tainted with most exorbitant usury, and void; and therefore, that the sales made under the deeds of trust were void also, and as to all the purchases made by Garland himself, at those sales, especially the last, the sales ought to be held naught, and Garland compelled to restore the slaves to him, and render an account of the profits thereof. And he prayed that Garland and Jacobs might answer the allegations of the bill on oath; that Garland might exhibit detailed accounts of the transactions, and his books in which those accounts were kept; that an account of all the transactions between him and Jacobs, between him and Garland and Jacobs; and between him and Garland, might be taken, in which no interest whatsoever might be allowed to them, but only the principal sums due them; that they, respectively, might be decreed to refund the excess, if any, paid by him above the principal; that Garland might be compelled to retore the slaves he had bought at the sales, and render an account of, and pay him, the profits thereof; and that Garland should *be in joined from further proceedings on his judgment on the bond of November 1818; and general relief.

The injunction was awarded.

Jacobs, in his answer, went into the details of the two transactions of March and May 1815; and stated, that those contracts were bona fide sales by Clarkson to him, the first of the 16 slaves for 2335 dollars, and the last of 14 slaves for 2666 dollars 66 cents, and conditional re-sales of the same slaves by him to Clarkson, for 2935 dollars, and 3394 dollars, payable in March 1816, provided those prices should be then punctually paid: he denied, that tne sales were devices to cover usurious loans, or that there way any treaty for a loan, or any borrowing or lending, actual or intended by either party: but he owned, that Clarkson told him he wanted certain sums of money, and offered as many slaves as would command those sums. He denied the usury charged to have been practised by him and Garland in 1816: but his. account of the transaction was not very distinct: he said, that in March 1816, he agreed with Garland to take a moiety of the benefit and burthen of a contract which he had made with Clark-son, in February preceding, whereby Clark-son was to- sell, his crop of tobacco to Garland, for 11 dollars 15 cents per cwt. and Garland to lend Clarkson 7000 dollars on simple interest; and the product of the tobacco was to be applied to the payment of sundry debts of Clarkson due to different persons, and the debt due to Jacobs among the rest: that the 7000 dollars secured by the bond of August 1816, was made up of the debt due Jacobs on the transactions of March and May 1815, with simple interest thereon, and of some claims of Garland against Clarkson: that he contributed-a moiety of the 7000 dollars; and Garland, in 1817, accounted to him for the same with interest thereon; and, thenceforth, he ceased to have any concern in or knowledge of the transactions.

Garland, in his answer, denied all the allegations of the bill generally, and each allegation in particular, which imputed to him, usury, extortion or oppression, or knowledge *of or participation in the usury and extortion imputed to Jacobs. He stated, that Clarkson in February 1816 sold him his crop of tobacco at the price of 11 dollars 15 cents per cwt. stipulated by contract in writing (which he exhibited), and he agreed to advance for Clarkson 7000 dollars more, to be applied to the payment of certain specified debts of Clarkson, of which the debt to Jacobs was one: in these contracts Jacobs had no concern. That the debt due to Jacobs, amounting to 6329 dollars, was paid off in March 1816. That, in August 1816, Jacobs took an interest in the debt of 7000 dollars, and in the tobacco contract: and Clarkson gave Garland his bond for the 7000 dollars, and another bond for 2465 dollars 56 cents, for moneys due Garland on other accounts; and a deed of trust mortgaging slaves to secure payment of both debts. That no usurious premium was included in either, nor was any contracted for. That in 1817, Garland, at Clarkson’s request, paid Jacobs the portion of the debt of 7000 dollars due to him. That, in August 1817, Clarkson gave Garland a new bond for 11250 dollars, payable in June 1818, and a new deed of trust of slaves, to secure the debt: and these securities were given for the then amount of debt justly due to Garland, on good and valuable consideration, without any usurious premium for the loan or forbearance of money: but the answer did not state or explain how, or of what particular items, this large debt was made up. That all the payments made him by Clarkson were fairly credited. That at the sale of the trust subject in November 1818, which was a cash sale, he purchased ten of the slaves, without any previous arrangement with Clark-son on the subject, and afterwards sold them to' him, at his earnest request, on a credit, at an advance of 600 dollars: and then he took Clarkson’s bond for 7483 dollars 70 cents (the just balance of debt then due him, without any usury whatever) and the deed of trust of 25 slaves to secure the same. That this trust subject was sold in November 1819, and fairly sold, without any contrivance of Garland to reduce the price, and fairly purchased, *by him: the proceeds of this sale, as well as the price of 8 hogsheads of tobacco delivered by Clarkson in October 1819, were credited on - the bond, and reduced the balance to 1331 dollars 32 cents, bearing interest from November 25th 1819, for which Garland had obtained judgment, and which was justly due to him.

There was much documentary evidence exhibited, and many depositions filed, bearing on the questions of fact put in’ issue.

1st. The written contracts between Clark-son and Jacobs, of March and May 1815, (considered in connexion with Jacobs’s answer,) were relied on to prove the usury imputed to those transactions. The first was a bill of sale executed by Clark-*61son and John Barnett to Jacobs, under date March 23d 1815, whereby they conveyed to him 16 slaves by name, in consideration of 2335 dollars; with two memorandums indorsed thereon; one, stating that the slaves were delivered to Jacobs; the other, stating that Clarkson and Garnett had the same 16 slaves, the property of Jacobs, then in their possession, on hire till March 23d 1816; and they being desirous of purchasing the slaves of Jacobs, he agreed, that if they should pay him 2935 dollars on or before March 23d 1816, he would and did thereby, in consideration thereof, sell the slaves to them, but if either of the slaves should die, Jacobs was to receive the same sum, and no less, for the survivors, and if the 2935 dollars should not be paid by the 23d March 1816, this agreement was to be utterly null and void. The other contract was a bill of sale executed by Clarkson to Jacobs, under date May 22d 1815, whereby Clarkson conveyed to Jacobs 14 slaves, in consideration of 2666 dollars 66 cents; with two memorandums indorsed thereon, exactly like those indorsed on the first contract, save only that the sum which was to be paid by Clarkson for these slaves, on the 23d March 1816, was 3394 dollars 17 cents. And for proof of Garland’s knowledge of the true character of these contracts, before he *mixed his own with them, many circumstances, disclosed by the evidence, were relied on.

2dly. The contract between Clarkson and Garland, for the sale of Clarkson’s crop of tobacco to Garland, was exhibited. It was dated February 6th 1816; and it bore, that Clarkson sold Garland his crop of tobacco, supposed about 20000 pounds, deliberable the 1st May following, for which Garland was to allow him 11 dollars 15 cents per cwt. and to advance him besides 7000 dollars, to be applied to the payment of sundry specified debts, and among them 6495 dollars 83 cents to Jacobs. There were depositions taken on Clarkson’s part, for the purpose of proving, that the fair market price of the tobacco, at the time, was 20 dollars per cwt. ; that in the original contract made in February 1816, the price stipulated for the tobacco, was 20 dollars; that that was a verbal contract, and that the written contract exhibited, by which the price was reduced to 11 dollars 15 cents, was in fact signed some time after the contract was made. On Garland’s part, depositions were filed, for the purpose of proving, that the agreed and the fair price of the tobacco, was truly stated in the written contract to be 11 dollars 15 cents.

3dly. As to the 600 dollars also, demanded by Garland and agreed to be paid by Clark-son, as an advance upon the price of the 10 slaves purchased by Garland at the sale of November 1818, and then sold by him to Clarkson, there was evidence on both sides; evidence on Garland’s part, that he bought the slaves at the sale on his own account, and after his purchase sold them to Clark-son on a credit; evidence on Clarkson’s part, adduced to sustain his charge of extortion and oppression in this particular.

4thly. Garland exhibited with his answer, a series of accounts of the transactions between him and Clarkson, wherein there was a debit to Clarkson, under date May 1st 1817, in these words: “To this sum, which you agreed to allow for trouble in attending to your business in settling your accounts with different persons, and for interest on various sums 'x'of small amount, on which no interest has been charged, and for interest on about 1500 dollars advanced for you in 1816, and not comtemplated in the loan of 7000 dollars — ■ $482 74.”

5thly. From the accounts exhibited by Garland, it could not be ascertained, how the large debt of 11250 dollars, secured by the bond and deed of trust of August 1817, was made up.

6thly. There was no evidence to sustain the imputation against Garland, of unfair conduct and contrivance, at the sale of November 1819, to enable him to purchase the slaves he then bought, at under prices; and he adduced evidence to shew, that Clarkson himself voluntarily produced the slaves to be sold by the trustee, was present at both sales, and made no objection or complaint; and that Garland’s conduct was fair, and the prices he gave, the reasonable value of the property.

Clarkson died pending the suit, and it was revived in the named of Fives his administrator.

On the motion of the plaintiff, the chancellor awarded an injunction (November 5th 1824) to restrain Garland from removing out of the state, the slaves held by him under his purchases at the sales of the trust subject.

The cause coming on for hearing in October 1825, the chancellor decreed, 1. That, as to Jacobs’s purchases and Clarkson’s repurchases of slaves, in March and May 1815, they were shifts to avoid the statute of usury, and the transactions consequently usurious; that, so far as Jacobs was individually concerned, Clarkson was to account for the prices Jacobs paid him for the slaves, and legal interest thereon, instead of the prices he contracted to pay Jacobs for the’ redemption of them; and that an account of these transactions should be stated by a commissioner on this principle. 2. That, as to the joint transactions of Garland and Jacobs with Clarkson, the commissioner should state accounts of them, and if there was usury in them, should strike it off, and charge Clarkson with legal interest only. *3. That as to the transactions between’ Clarkson and Garland, the commissioner should examine and state all the accounts between them, strike off the usury if any should appear, and charge legal interest. 4. That there was no objection to Garland’s purchases at the sales of the trust subject. 5. That there was no necessity for the injunction awarded the 5th November 1824, and that it should be discharged, as having been improvidenlly awarded. And the court declared, that without giving any other opinion as to what might or might not be usurious in any of the transactions, or any opinion on the tobacco contract, it would expect of the commissioner, such a state of all the accounts, as he should consider just and proper, or as either party should require.

*62Clarkson’s administrator appealed to this court.

The case was argued here, by Johnson, for the appellant, and Stanard, for the appellees.

There were several points of law discussed. But much of the argument turned on questions of fact, and consisted of careful examination of the particular proofs in the cause bearing on them; the counsel for the appellant maintaining, and the counsel for the appellees controverting, the following propositions: That, supposing the two contracts of March and May 1815, between Clarkson and Jacobs, usurious, Garland was acquainted with their true character, and, with this knowledge, took a joint interest in them, mixed them with his own transactions, and exacted more usurious premium for forbearance of the debt: That those contracts were, mainly, the basis of all the subsequent transactions, which, therefore, on this account alone, were tainted with usury: That new and aggravated extortion was practised at every subsequent step in the progress of Garland’s dealings with Clarkson: That the price at which Clarkson sold Garland his crop of 21283 pounds of tobacco, in February 1816, was fixed by the original contract at 20 dollars per cwt. and the reduction of the price to 11 dollars 15 cents, was an after-operation, *and was in truth an usurious extortion: That the 6000 dollars advance on the price at which Garland bought the ten slaves at the sale of the trust subject in November 1818, exacted by him of Clarkson, on his re-sale of that property to him, was usurious: That the 482 dollars 74 cents, debited to Clarkson, in the accounts exhibited by Garland, for his trouble &c. and for interest &c. was usury: And that it was impossible to ascertain, from those accounts exhibited by Garland, how the large debt of 11250 dollars, secured by the bond and deed of. trust of August 1817, accrued; on the contrary, the accounts shewed, that by no means so large an amount was or could be justly due; and Garland ought not to be allowed to charge the amount of that bond to Clarkson, without shewing the consideration of it.

As to the points of law: I. Johnson maintained, that the two contracts of March and May 1815, between Clarkson and Jacobs, were usurious. Jacobs acknowledged in his answer, that Clarkson told him he had to raise the two sums of money, which Jacobs gave him for the property, and offered as many slaves as would command those sums ; that is, in substance, that he knew Clark-son’s object was to borrow money upon the security of this property. It was his own real purpose to lend it upon that security. The contracts were upon the face of them, usurious: they were, in substance, mortgages of property for 2335 dollars advanced the 23d March, and 2666 dollars advanced the 22d May 1815, redeemable by the payment of 2935 and 3394 dollars, on the 23d March 1816. And if these contracts were not strictly mortgages, the form given to them was, palpably, a mere shift to evade the statute of usury.

Stanard remarked, that the contracts gave Clarkson a right to deliver the slaves, however they might depreciate in value, or, if half or two-thirds of them had died, to deliver the residue, to Jacobs, on the 23d March 1816, and thereby to discharge himself from the payment of any money; while it gave Jacobs no right to refuse to receive the slaves, or such as should be living at the appointed time, *and to demand money. The contracts were, surely, not mortgages. Jacobs took the hazard of the loss of the slaves by death, or by depreciation in the market, in the interval. He said, that wherever the person receiving money is not bound to return money, where-ever the person advancing money is not entitled to demand money, whatever may be the character of the transaction, it is not usurious; since, in such case, there is no borrowing or lending or forbearance of money: and, wherever the bargain is one of hazard, where risk is one of its essential properties, the contract differs in its nature from a loan; and, though it may be hard, it is not usurious. Ord on Usury, 24, 39; Bedingfield v. Ashley, Cro. Eliz. 471; Chesterfield v. Janssen, 2 Ves. 125; 1 Atk. 301; 1 Wils. 286.

Johnson replied, that the argument for the appellees assumed, that the contracts were in substance and reality exactly what in form they seemed. But they were in truth loans of money, veiled under the form of sales and re-sales of property; and too thinly veiled to hide the true, features of the case. The option, which the contracts gave Clarkson, was to pay the money, or to return slaves worth, in the estimation of both parties, doubtless, more than the money; and entitled Jacobs, if he did not get the money he advanced, with about 25 per cent, per ann. upon it, to property of greater value. The hazard was merely colourable; or rather no hazard at all; since, in all probability, the slaves would increase in numbers, and therefore in value. That the property was liable to depreciation, bjr casualties of any kind, entered net into the thoughts of either party. The provision that if any of the slaves should die, Clarkson should pay the same price for the survivors, shewed the true character of these contracts. Hazard, slight and colourable, had been often infused into contracts really usurious, to evade the law; it was an old and well-known shift; and was of itself, in general, conclusive proof of usury. Ord, 69, 70, and the cases there cited.

*11. Johnson contended, that, as the deeds of trust were tainted with usury and vicious, the sales made under them partook of the same vice, and ought to be avoided, so far as Garland was a purchaser and holder of the subject; and that he ought to be compelled to restore the property, and account for the profits of it, and Clarkson held accountable for the debt to the discharge of which it had been applied.

Stanard answered, that it was in proof, that Clarkson had himself produced the trust property to the trustee to be sold, without compulsion on Garland’s part, and without any complaint on his own; and that the sales were fair in themselves. They were, then, nothing more than a willing application, by Clarkson, of that fund to the payment of the debt; and such payments could *63not be distinguished, in principle, from any other payments out of any other funds.

III. A question arose, upon the supposition that the usury was established, what ought to be the measure of relief?

Johnson observed, that in England, when a party asked relief in equity against an usurious debt yet unpaid, he was relieved only from the usurious excess above the principal and legal interest ; and, upon the same principle, when he sought to recover back money paid upon an usurious contract, he recovered only the usurious excess. But in Virginia, a party entitled to relief in equity against an usurious debt not paid, was held to the payment of the principal only, and was exonerated even from the legal interest. 1 Rev. Code, ch. 102, § 3; Young v. Scott, 4 Rand. 415. And, by analogy, the measure of relief in equity, or of damages at law, to a party entitled to recover back money paid upon an usurious contract, ought to be the excess paid beyond the principal sum advanced to him. The case of Stone v. Ware, 6 Munf. 541, might seem contrary to this proposition ; but this point was not considered there; and besides, that case was decided before the construction of the third section of our statute was settled by the decision in Young v. Scott. The payments made by Clarkson, ought to be applied to the principal of the debts he contracted to * Jacobs,

Garland and Jacobs, and Garland; and the excess of his payments above the principal of his debts, ought to be refunded to him, with legal interest Irom the time when the principal was extinguished, and afterwards from the dates of the payments.

Stanard said this proposition could not be sustained. The principle of the provision contained in the third section of our statute, was very peculiar : it imposed on the usurer the forfeiture of legal interest on his money, as a penalty for violating the law in contracting for more ; and it made the court of chancery the instrument to inflict the penalty, whose province it was, in general, to relieve against penalties and forfeitures, as well as extortion and oppression. But this section of the statute provided for a particular case ; the case of a party resorting to equity for discovery of, and relief against, usury not yet paid. And he said, there was no reason for extending so harsh a principle beyond the case to which the statute applied it. A party seeking to recover back money actually paid by him on an usurious contract, could only ask what the party who received it may not ex aequo et bono retain. He may conscientiously retain legal interest on his money as well as the principal. The usurious excess above the principal and legal interest, is all that he may not conscientiously retain, and therefore all that he can be justly required to refund. This rule, long settled, and upon well known principles of justice, the legislature might have altered, but forbore to do so : and the court could not be justified in altering it, by analogy to a statutory provision made for another case.

*

Equitable Relief — Usurious Contracts — Measure of Relief. — Bor a discussion ot this question see the principal case cited in Spengler v. Snapp, 5 Leigh 489, 499, 501, 509, 511, and *note:*Moseley v. Brown. 76 Va, 423, 426: Munford v. McVeigh, 92 Va. 457, 33 S. E. Rep. 857: Davis v. Demining, 12 W. Va. 278, 289, See monograpic note on “Usury” appended to Coffman v. Miller, 26 Gratt. 698.

CARR, J.,

delivered the resolutions of the court:

1. That the contracts between Clarkson and Jacobs of the 23d March and 22d May 1815 ; the tobacco contract of the 6th February 1816; the charge by Garland against Clarkson, of 482 dollars 74 cents, for trouble &c. and interest &c. and the re-sale by Garland to Clarkson of the ten slaves at an advance of 600 dollars on the price they cost him ; were all usurious transactions.

*'2. That Garland shall not be allowed to charge Clarkson with the bond of the 6th August 1817, for 11250 dollars, unless he shall shew the consideration thereof.

3. That in taking the accounts, all usurious gain should be expunged, or accounted for by the party receiving it : if Clarkson’s payments shall be found to exceed the principal and interest of the claims unaffected by usury, together with the principal of the usurious debts, then legal interest should be allowed on the sums infected with usury, to the extent only of extinguishing such excess of payment ; but if there shall still remain a balance of such excess, then thqt balance with interest thereon shall be paid to Clarkson by the party who received it.

4. The majority of the court was of opinion, that the sales made under the deeds of trust, are not to be disturbed.*

The consequences of these principles are :

That Clarkson should be charged to Jacobs, with 2335 dollars, as of the 23d March 1815, with interest thereon from that date, and with 2666 dollars'66 cents as of the 22d May 1815, with interest thereon from that date ; and credited by 6329 dollars 17 cents, as of the 23d March 1816, that being the sum with interest for which Garland finally accounted to Jacobs : and Jacobs should be decreed to pay the balance with interest from the last date.

That, in stating the account between Garland and Clarkson, Garland should be allowed to debit Clarkson with 6329 dollars 17 cents as of the 23d March 1816, with interest from that date : but he should not be allowed the 482 dollars 74 cents : nor should he be allowed the advance of 600 dollars on the re-sale of the ten slaves : nor should he be allowed to charge the bond of 11250 dollars of the 6th August 1817, unless he should shew the consideration thereqf; and if that bond should appear to be usurious, he *'should only be allowed to charge the true principal sum, with interest, upon the principles before stated.

And that Garland and Jacobs, jointly, should be charged with the difference between the 11 dollars 15 cents per cwt. and the true value of the tobacco, with interest from the delivery thereof ; such value to be fixed by ascertaining the current market price of such tobacco, on or about the 6th February

1816, taking into consideration its quality, and the time allowed for the delivery thereof.

Decree reversed, and cause remanded to be proceeded in according to the principles here declared.