The enquirer. [volume] (Richmond, Va.) 1804-1815, 1812-12-05

pcse Of giving general information as spec
diiy as possible. 1t is, also. proper to men
ton that an error committed in the former
report ofthis case, in stating The Dill &,
have 6cen for q discovery, is here correc-
ted. WIN. MUNFORp,
Richmond, Dec. LIST, 1872.
In The Suhreme Court Of .ahheais Of Y;yi-
nia.
| - MARES against MoRRts.
| tC~ The points decided are the follow
1. Where Bill in EQUITY is filed to
stay proceedings cpon an usurious Deed o.
Trust. on the ground that the Complainant
had no opportunity at law to plead the u =
sury, and prays for no discovery. but, on
the contrary, is ready TO frove the fact.
the Cour; ought not to- grant him re-
liei against the rsury, upon the condition
OF his paying the Urine iaat snnr Of money,
(without interest ;)--but should altogether
le2johi-the trustee from selling, until, by some
proper proceeding to lie instituted by the
cestuy que traSt, he establish the validity of
ms contract In which case, the in JUNCTION
should be dissolved and, in the contrary
event, peTpetuated.
2. Upon the result of such proceeding,
| y the injunction BE DISSOLVED, the Decd
(being fhen cleanset! of its usarious faint by
the Judgment of a competent tribunal)
should be enforced as, "a security to compel
the payment of the debt .-] -.
SOLOMON MARKS filed his Bill in the
Superior Court OF Chancery for the Rich
mond District. against S;mhssn Morris and
Charles ColtiCnfd. to be relieved against an
usurious contract covered by two deeds
| OF trust praying',an injunction TO inhibit
CofZand, the Trustee, from selling the pro-
nroI Il
OF the contract by Decree of the Court !;
or such. other relief a. might be deemed
Just and equitable, and the nature and me-
rlts OF the case might Justify. The Bill
lsettins forth, particularly, the circum.
stane OF the ContraCt)' stated, moreover,
mat Lyman Marks. witness, was hyivp
20 ING zDhole transaction, ard that by his
testimony the Usu,-y could be estl6hahed-
| 1he defendants were called upon, in she
usual form, to- make full. true and per-
fects Answer 20 s. the prem'ses. as
fully as IT the same were again par
Gcularly set forth and expressed.
| eIhe Answer of SIMPSON Morris, the
eeSfuy que trust, neither admitted, nor no
sHfUeiy denied the Usury, (which. however,
s1as clearly PROVED by the testimony in the
lCause. ,.,.-s ~ =, ~
The Chsncellor's Decree gave the plain
tilt relief against all. but so much Of HE
frfnctfal money as appeared to be due 1; &c
allowed him all costs directing. in case
the SAID balance of the principal Dtonev
lshould not be paid, or before Certain day.
the injunction, for so much, should stand
dissolved as an act of the day when the
Decree was rendered that the Deeds re
main as security .forthe same and that
Charles Cohland be appointed Commissi-
oner to proceed, agreeably to the terms of
the deeds, to raise the amount there of,
and to report his proceedings to the Court
in order to final decree. 80
From this Decree the plaintiff prayed an
Appeal, which the Chancellor allowed. /
The cause was argued, by Hly for the
Appellant, and Williams e Wirt for the
Appellee, on "Wednesday the 11th and
Thursday the 18th of March 1912. .r,.
Monday, Nov. 10th Gin the absence of
the PREstDENT,) Judge RoANE pronoun-
ced the following Opinion of the Court con
sisting of Judges RoANE, BROOKE, and
CoALTER. go"
| OPINION OF THE COURT. 10
| This is bill brought by the Appellant
praying that the trustee in certain deeds OF
trust constituted may be stayed from sell
hing the property therein conveyed and
ti.@t, (oh the groundof usiu-g) the said deed,
may be decreed to be cancelled and TO,
general relief
| Attic gh that Bill, alter setting out the
| particulars of the usHrious contract, call
| upon the defendant to answer the same, II
| the usual way, we nevertheless infer that
is not such bill for discovery and relief, a
is contemplated in the third section Of til,
| Act OF Usury. We infer this, not only be
Cause it omits to proffer to pay the hrinciha
money loaned by the Appellee to the Ap
Pellant, and toPray that the notes, givel
for the usuriops consideration, may also b,
decreed to'be given up and cancelled ; but
also, because the Appellant, $50 far from a
verring therein that he stood in need of
q seoyery of the usury from the Appellee, ia
UerSs on the Contrary, that he could p,ov
the same by particular witness whom n
names. ,a
| The particular mischief intended to b
remedied by that section of the Act was tina,
as usurious contracts were frequently mad
in secret, there might often be defect of e
videncc, to detect them, in the ordinar,
course it therefore authorises discovery
IN such case, from the conscience of thu
defendant, on the conditions prescribed b.
| the act This construction, which plainl
results from the section itself now in question
is made more clear by referring to its Dro
totype, the fifth section of the act of 1l48
! upon the same subject in the preamble I
which the foregoingis expressly stated t
| DC the III $ met IN, ended t. be reInei,ed. Blu
this section, BEING adapted 20 limited an
| specified Case, does not interfere with, no
affect the general and ulterior Jurisdiction c
the Courts of Equity. antecedehtly existiDe
on the subject.
For example, it does rot extend 70, no
| i'm,