#### Rankin’s Ex’or v. Rankin’s Adm’rs.

September, 1844,

Lewisburg.

(Absent Brooke and Baldwin,* J.)

Usurious Bond—Judgment—Equitable Relief†—Case at *Bar.—H.*having obtained a judgment against the administrators of *S.*on the bond of their intestate, flies a bill in equity to obtain satisfaction of that judgment, out of the assets in their hands. The administrators in their answer, set up the defence that the bond on which the judgment was obtained, was usurious ; and the usury which they state is that a premium given for the forbearance of a preexisting debt, was included therein : Held, if the fact is proved, that the defendants are only entitled to relief, to the amount of the usurious premium ; and that for the residue of the debt, *R.*is entitled to rank as a creditor by judgment against the administrators, on the specialty of their intestate.

*70Reuben D. Hilt, executor of Richard Rankin deceased, brought a suit in the superior court of chancery at Staunton, against the administrators of James Rankin, for the purpose of obtaining satisfaction of a judgment which he had obtained against them, upon the bond of their intestate.

“The defendants in their answer, set up the defence of usury in the bond on which the judgment was obtained; and stated the usury to be one hundred dollars, which was exacted by the testator of the plaintiff, from their intestate, for farther indulgence upon a debt which the latter owed to the • former; and for which, including the one hundred dollars thus exacted, the bond was given.

When the cause came on for hearing, the chancellor dismissed the' bill; but upon appeal to the court'of appeals this decree was reversed; and the cause sent back, with directions that an issue should be made up to try the question of usury. An issue was accordingly directed; and upon the trial the jury returned the following verdict, viz: ‘ ‘The jury are unanimously of opinion that there has been an usurious transaction between- Richard and James Rankin deceased; and upon weighing the testimony, and circumstances before them, decide that the bond in the proceedings mentioned from James to Richard Rankin, of the 16th of March 1825, for the sum of 590 dollars 63 cents, is tainted with usury.”

On the trial of the issue, the plaintiff filed two ■ bills of exceptions to opinions of the court rejecting testimony offered by him; and after the verdict was rendered, and certified to the chancery side of the court, asked for a new trial on other grounds; but as these questions were not considered by the-court, it is unnecessary to'state them.

■The court below again dismissed -the bill; and the plaintiff applied to this court for an appeal, which was granted.

Johnson for the appellant.

No counsel for the appellees.

*

He had been counsel in the cause.

†

Usurious Contracts—Extent of Relief.—See principal case cited with approval in Martin v. Hall, 9 Gratt. 10. See also, *foot-note*to this case. For a collection of Virginia and West Virginia cases dealing with usurious contracts, see monographic *note*on “Usury ’• appended to Coffman v. Miller, 26 Gratt. 698.

Usurious Security for Pre-existing Debt—Effect — Though a usurious security given for a pre-existing *Iona fide*debt is void, the pre-existing debt is still a valid obligation, and may be recovered. To sustain this proposition, the principal case was cited in Parker v. Cousins, 2 Gratt. 372, 387. See the principal case also cited in Moseley v. Brown, 76 Va. 426.

*STANARD, J.,

delivered the opinion of the court.

The court is of opinion, that the usury alleged in the answer, being the addition of 100 dollars for the forbearance of a preexisting debt; and the consideration of the obligation on which the judgment in the bill mentioned was founded, being the preexisting debt, and the said usurious premium for the forbearance, such usury, (though if used as a defence at law to the action on the obligation, it would have avoided the obligation, and defeated the action thereon in toto,) could not be used at law, as a defence to an action on the judgment; and the relief therefor in equity, whether sought by bill to arrest the enforcement of the judgment at law, or made the ground of defence to a bill of the judgment creditor, seeking an account of the assets, must be limited to the rejection from the claim of the amount of the usurious addition to the original debt; leaving the original debt due and payable, as though the usurious addition for forbearance had not been made. Gray v. Fowler, 1 H. Bla. 462; Scott v. Nesbit, 2 Bro. C. C. 641. A consequence of this opinion is, that the full proof of the usurj- alleged in the answer, would have entitled the defendants to an abatement of 100 dollars of the principal of the debt, for- which the judgment on the obligation was rendered; leaving the residue of the judgment the proper debt, chargeable on the assets of the debtor. The court is further of opinion, that the verdict of the jury, on the most liberal interpretation, only finds the usury as alleged in the answer; that being the usury to which the issue directed by the former decree of this court,- and which the jury were impanelled to try, had reference. And the appellant consenting that such should be the interpretation; and waiving all objections to the verdict, the court is of opinion, that the effect thereof is to subject the judgment in favour of the plaintiff in the court below, mentioned in his bill, to an abatement of 100 dollars of the principal thereof, ^leaving -the residue of the judgment to charge the assets of the debtor, as a judgment on a specialty; and for the amount of which residue, the appellant -is entitled to rank as a creditor by judgment against the administrators, on the specialty of their intestate. The decree is therefore reversed with costs, to be paid out of the assets of the intestate in the hands of the appellees ; and the cause is remanded to the- court below, to be pro-l ceeded in according to the principles herein before declared.