The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-10-13
[FOR THE ENQUIRER.l
"a the Superior Court Of CAaneery, for the Rich
Hiona Distrief, Fail Term, 1899.
MARKS VS. MORRIS.

deedsof trust, which the trustee was about to
Garry int effect, by making sale of the proper
~ thereby conveyed and for an Injunction to
stop the sale, which was awarded.
The 1sr,y was not admitted by the answer, nor
was 1t positively denied, but from the terms of
She answer, and the testimony i'm the cause, tho
esnry, beyond all doubt, was made out. This
cause was twice argued, with very great ability,
Wy all the counsel; and the principal question,
submitted TO the court was, whether the plaintiff
should be relieved agans, the contract eut;yeiy.
or against all but the principal money.
~ The Chancellor
have devoted much time to this
esse, and confess, that when motion was for
nery made, to dissolve the Injunction, thought
differently from what l do now but surely,
was under an erroneous impression, and now
take rs'ich pleasure, in recading from it. 1t i.
ROT my habit, to take up much time in court, in
aeiiverinS my opinions, as deem time of more
Importance than words to the suitors otherwise.
upon this subject, Icould write a volume and
wmie have not less respect for English judges,
ana EHghsh opinions, than other gentlemen vet
nave too much regard for myself, and the natl
onai character OF my country, to rely upon En-
4ftsh books farther, than for Information merely
but not as authority it was the common law we
adopted, and not English decisions /, and we
should take the standard of that law, nameiy
that we should live honestly should hurt no bo.
dy and should render to every one hi. due, for
our judicial guide by this standard them let this
case be adjusted to do which, we must under
stana what was the former rule, upon coming in
70 equity, in case like the present Before the
'hro section OF our present act against usury,
was introduced INTO our laws, the rule with res
Psct to relief IN equity against an usurious con.
tract was this that If the borrower brought bill
IN chancery, against the lender, to compel him to
discover the usury, he might deInurr, because il
subjected him to penalty and no ono upon
principles OF natural and universal Justice could
COmDeilefl fin ,uh r, ali T.
fore, to compel discovery ofthe usury, the bor-
rover had to wave the penalty, and to offer pay
"ent OF the principal money with legal interest
ana then The lender was compelled TO answer, &
90 make the discovery, upon which, relief was
aHoroea against the i.legGl interest upon this
MAXIM, that he who seeks equity, must do it
eut the third section in our act declares, that a.
~ borrower may exhibit his bill in equity against
the lender, and compel him to discover, on oath.
all the circumstances III relation to the tram. acti
on and II thereuPon, it shall appear that more
man lawful interest," was reserved, he shall be o.
hinged to accept his principal money, without a.
ny interest, or other consideration and nav costs
bat shall be discharged of all other penalties of
uiat act The difference then between the for.
Her and the present rule, is this, that by tha for
her, relief in equity could only be obtained up
on dong compieat justice, by paying the princi-
a'money ana legal interest; but by the latter
1t may be obtained upon payment of the princi
pal money without interest. But understand
he counsel for the defendant to contend. that he
h entitled to the full benefit of the former rule
unless the care falls expressly within the latter
as the discovery OF the usury was not made BY
his answer, but proved upon him. But as wei,
he former, as the present rule, was predicated
upon the ground that there was no relief at law
and surely 1t never was intended, to preclude |
borrower from relief in equity, if, from circum |
stances, which he could not control, he was pre |
vented from making his defence at law: and
Than xnrl,at hnr,v 81,
ground, it relief in equity Should be asked The |
rule in both cases should be the same for an
prehend, that the legislature did not mean TO |
place the lender, who should nor make the dis |
covery, in better situation, than the one who
should make it for example bill for relief !
hied the defendant, the lender, in his answer, I
admits the allegations of the bill TO be true then
he shall be obliged to accept his principal money,
without any interest, pay costs, and be dischar.
ged OF all other penalties imposed by the act
but, if he had evaded the trath, though the usu. !
ry should be proved upon him, he should, a, |
understand the counsel, be entitled to his prnci-
pal money and legal interest, arreeably to tn.
former rule it not being a Gaze expressly with.
in the latter, as prescribed by the third section |
of the act; but this cannot be fair exposition
of the legislative will, as Is would be an induce
3nent to every lender, to withhold fair tlisclo |
sure OF facts; upon this calculation, if they are
disclosed, / lose all my interest but if thev arr
get inIgfaI Interest and they not proved, |
get my !GgHl and unlautal gam but when the |
lender, in either case, is to lose all his interest
whether upon his discovery of the asuyy, or upon |
che plaintiffs proof, there is 70 inducement held
cut to him, TO withhold the truth.
One word upon the main pillar of Mr.. Hav,s |
argument, i" that the plaintiff was operated IN |
On by the effect of the deeds of trust and hayinp
hadno day in n court of law, was compelled to
come into this court, for he could GO no where
else: :" this is true and under the operation of /
these deeds, the plaintiff was placed precisely in
tc situation OF man against whom there was |
judgement at law, upon an usurious bond, be-
cause he and his witnesses were all sick & could |
not attend the trial, and therefore a judgement |
was rendered against him now this man must
pay the nsury, in the Judgment, unless he can be
relieved in equity, there is no doubt about it &
40 with respect TO the present plaintiff, his pro- |
perry was 90 have passed off under the hammer
Of the cryer, but for the interposing hand Of ris
court he is then the applicant here for relief to
which he IL most clearly entitled but the oues.
eon rs as to the extent Of that relief: The
Is, that he must do Justice so far as the law will
atlthorise it, IN order tn obtain ii & therefore he
must pay the principal money without any inte |
pest ; and the defendant must be depriyed of ALI |
gain by the contract, which was corrupted bv |
ele usury, pay costs, and stand discharged from
ell other penalties of the act
The decree may be to this effect -
That if The plaintiff shall pay to the deEen- |
dant so much of S $500, being the prin- |
vlpaI money, without interest, as shall re- |
main, after deducting oil costs, and & 1919 !
acknowledged to have been received) ON |
OF before the LIST October next, the injnnc- |