[Present, Chancellors Ruteedqe and Mahsiiam.]

#### William Loughton Smith, *vs.*J. Fisher.

The court will not compel a defendant to answer whether his transactions with a third person were, or were not of an usurious nature, at the instance of a creditor of that third person; he not seeking the discovery, and there being no charge of fraud on the complainant.

THE case made in the bill, was shortly this; that prior to 1792, D. Campbell, owed complainant sundry sums of money, and on the 12th July, 1792, Mr. Campbell executed a mortgage to complainant of a considerable number of slaves, and complainant going *276abroad, left Mr. Campbell his agent, and left in his hands said mortgage with his other papers. The mortgage was to have been recorded, but was not recorded, until the 28th February, 1804, when complainant returned to this state. Complainant found that in the mean time, viz. 21st Oct. 1796, Mr. Campbell had executed a mortgage of sundry negroes and property to the defendant, J. Fisher, to secure payment of certain bonds given by Mr, Campbell to him. The said mortgage comprehended the negroes before mortgaged to complainant, and was duly recorded, and so took a preference at law. The bill alleges that after complainant’s departure, D. Campbell became greatly embarrassed in his circumstances, and was compelled to resort to the expedient of taking up monies from divers persons at usurious interest, and of using the complainant’s funds that came into his hands, to relieve his embarrassments. Being pressed and embarrassed with debts of this nature in the banks, some of the usurious notes alleged to have been held by defendant himself, he applied to the defendant to lend him a sum of money sufficient to pay off or take up all these notes, proffering good security. That defendant took an unfair advantage of him, and in lieu of money, compelled him to take stock at an enormous price, far above ’ its price in the market, which Mr. Campbell was obliged to accept, in order to raise money by a sale of the stock at a sacrifice, and part of the money was applied to take up notes due the defendant, which were charged to be usurious, as will appear by discovery of defendant if compelled to answer. That complainant is a great sufferer by Mr. Campbell; the defendant threatens to inforce his mortgage and absorb the whole estate of said Campbell, thereby leaving complainant without any remedy, either by virtue of his mortgage or otherwise. And complainant prays that the defendant’s incumbrances may either be cancelled, or postponed to the debt of complainant, on the grounds of the alleged usury and the oppressive manner in which the contract was made between the said *277defendant and tbe said D. Campbell — and the bill seeks discovery and relief.

*276NOVEMB. 1804.

*277The defendantdemurredtotbatpartoftbebilltbatsougbt for a discovery, whether the dealings between defendant and D. Campbell, antecedently to the sale of the stock, when these incumbrances were created, were not usurious. And as to the relief sought against these incumbrances, the defendant answered, that he knew nothing of the transactions between the complainant and D. Campbell, the origin or amount, or nature of the debt, nor of the mortgage stated to have been made in 1792. That as to the communication alleged to have been had for a loan, prior to the selling of the stock, he denies it. That he did not seek Campbell, but the latter applied to the defendant, having heard that he possessed a quantity of stock. That he offered defendant 205. in the pound if he would sell him the stock on a credit of 1, 2 and 3 years. Defendant believes, but does not know positively, that it might have been sold for 185. cash. That Campbell offered him security by mortgage of his real and personal estate. Defendant employed a professional gentleman to investigate his titles, and search the records, who reported the same tobe good and unincumbered. Denies that the debt or any part of it was created for notes due the defendant, but solely for the sale of stock which was a commodity in the market like all other articles of fluctuating value, and always commanded a higher price on an extensive credit, as is usual with every thing else. That he took no advantage of his necessities, but fairly sold the stock atthe same rate at which he had sold stock before. That to him the stock was at par, and he determined to keep it rather than sell it under par — and was not anxious to sell.

That instead of rigor, he had exhibited great lenity to the said D. Campbell, as the statement of the debt would shew, and denied any right in the complainant to interfere with his contract, which was fair and *bona fide.*

The demurrer was argued by Mr. Smith himself, and Mr. Gaillard for complainant, and by- Mr. Parrer and *278Mr. Ford for the defendant.

Many grounds were taken and many authorities cited on both sides, but it would swell this case to an unreasonable extent, to give the arguments of the counsel.

The opinion of the court on the demurrer was delivered by Chancellor Rutledge, as follows:

The complainant is a creditor of D. Campbell, and ' his bill seeks a discovery from defendant, respecting certain usurious transactions which he alleges have taken place between Campbell and defendant, and also with several other *persons;*likewise a discovery whether the bonds and mortgages in bill referred to, were not founded on usurious considerations, and obtained from complainant by coercion, and when in such necessitous circumstances, that he was obliged to make the contract to relieve himself from *his*embarrassments. Defendant has demurred to such parts of the bill as call upon him to discover whether complainant had not at various times borrowed considerable sums of money from him and other persons, on usury or at exorbitant interest. To the other parts of the bill which relate to the bonds and mortgages, he has answered partly. The demurrer is now the only subject for determination.

If a bill had been filed by' D. Campbell himself, containing the charges set forth in this, the case would have worn a different aspect, and defendant might perhaps have been compelled to answer. But the complainant being a creditor, and the defendant standing in the same situation, and Campbell himself not appearing to be dissatisfied with his contract, and not seeking to set it aside — > if the court, upon the bare suggestion of one creditor, were to allow of an investigation of transactions between debtor and creditor, without any charge of fraud, it would be productive of infinite litigation. No fraud being charged in this transaction, and defendant having answered that part of the bill which relates to the consideration for which the bond and mortgages were given him by D. Campbell, the court are of opinion that it is by no mean? *279'necessary or raatcn .u Nr him to answer that part of the bill respecting any prior usurious transactions between hi in and D. Campbell, if there were any, but more especially such as may have taken place between him and other persons. Cases cited are good law when applicable, hut not so on the subject of the demurrer. How far they may apply on a discussion of the general question, will be determined when that is argued.

Note — In a subsequent term the court decreed on the merits, which depended on matters of fact, and much evidence was adduced.

For the decree itself, vide Decree book, No. 2, p. 326, delivered in April, 1806.

Demurrer must be sustained.