Ray V. Law. appealed from. We suppose, that when the court below understands that to be our opinion, it will allow an appeal, if it be a case to which this opinion applies. If A. lend money to B., LEVY v. GADSBY. ERROR to the circuit court of the district of Colum who puts it bia, sitting at Alexandria. out at usurious interest, and This was an action of assumpsit, by Levy, the enagrees to pay dorsee of a promissory note, against Gadsby, payee and to A. the same endorsor of M'Intosh's note. rate of interest which he is re 1.'s money, this is usury an endorsor of himself of the plea of usury. The declaration consisted of three counts. chants. The 1st, ceiving upon in addition to the common averments, alleged, that the money, plaintiff had brought suit upon the note against M'Inbetween tosh, in Maryland, and recovered judgment, but that and B., and before execution made M'Intosh died insolvent. The B.'s note to 2d count was in the usual form, excepting that it alleA may avail ged that Gadsby became liable by the custom of merThe 3d count was for money had and received. If the usury The defendant pleaded, 1st. Non assumpsit; 2d. As to be specially the first count, usury between M'Intosh and Levy, stapleaded, and the court re- ting the transaction as a loan by the latter to the former; ject the evi- 3d. As to the first count, usury between the same parties, stating the transaction as a forbearance of an antecial plea, it cedent debt. The 4th and 5th were like pleas of usury ted upon the to the second count. The 3d and 5th pleas, by misgeneral issue, take, alleged the note given, in pursuance of the corrupt ing it has been agreement, to be a note made by Gadsby to M'Intosh, refused upon and by him endorsed to Levy; whereas, the note in the the special declaration mentioned, was a note made by M'Intosh to plea. The court Gadsby, and by him endorsed to Levy. To the pleas of has the exclu- usury, there were general replications and issues, and a sive power of deciding whe general verdict for the defendant. On the trial three ther a written bills of exception were taken by the plaintiff. dence offered upon such spe may be admit notwithstand contract usurious. *181 be 1st. The first stated that the plaintiff gave in evidence a promissory note in the usual form, dated November 1, 1797, whereby M'Intosh, six months after date, promised to pay to Gadsby, or order, 1,436 dollars and 62 cents, for value received, negotiable at the bank of Alexandria. And it was proved that Levy and 1 M'Intosh carried on trade and commerce in copartnership, under the name and firm of Levy & M'Intosh, at Alexandria, Levy residing at Georgetown, about 8 miles distant from Alexandria. That they so continued to carry on trade and commerce from some time in the year 1796, till the 12th day of November, 1797, on which day the partnership was dissolved; and that the dissolution was advertised in the public papers, on the 19th of October, 1797, to take place on the said 12th day of November, 1797. And the defendant, to support the issues on his part, offered in evidence a paper in the hand-writing of the plaintiff, and by him subscribed, as follows: "Georgetown, November 9th, 1797. Received of Mr. John M'Intosh, his two notes, one payable to John Gadsby for fourteen hundred and thirty-six dollars and sixty-two cents, dated the first instant, negotiable at the bank of Alexandria, at six months after date, endorsed by said Gadsby; the other to Thomas J. Beatty, of same date, at three months after date, for twelve hundred and seventy dollars and eighty-seven cents, negotiable at the bank of Columbia, and endorsed by said Beatty. The two notes making the sum of two thousand seven hundred and seven dollars and forty-nine cents, which, when paid, is on account of money due me from the firm of Levy and M'Intosh, equal to two thousand two hundred and ten dollars and twenty-four cents, as by their account, handed me by the said M'Intosh, dated October 23d, 1797; and as the said M'Intosh agrees he is receiving an interest equal to the difference twixt the sum due me, as per their account current, and the notes payable, he, therefore, allows me the same interest as the one he is receiving for my money. Therefore, on a settlement of accounts, I am *only to stand debited for twenty-two hundred and ten dollars and twenty-four cents, 2,210 dollars and twenty-four cents, due as per account current; 497 dollars and 25 cents interest; 2,707 dollars and 49 cents. "N. LEVY." The plaintiff's counsel objected to the said writing being given in evidence by the defendant, on the pleas of usury, and the court refused to permit it to go in evidence on those pleas. The plaintiff's counsel then objected to its going in evidence on the general issue of Levy V. Gadsby. *182 Levy V. Gadsby. *183 non assumpsit, but upon that issue, the court admitted it. 2d. The 2d bill of exceptions, after repeating the same facts, states, that the plaintiff's counsel prayed the opinion of the court, and their instruction to the jury, whether the circumstances given in evidence as aforesaid, amounted to proof of a usurious contract between Levy & M'Intosh; and the court, thereupon, instructed the jury, that those circumstances did amount to proof of a usurious contract between those parties. 3d. The 3d bill of exceptions was to the opinion of the court, that the agreement mentioned in the receipt given by Levy to M'Intosh, having been read in evidence, and having been, by the court, declared a usurious agreement, the note given in pursuance thereof, is void, and that the plaintiff is not entitled to recover thereon, against the defendant in the present action. Swann and Simms, for plaintiff in error. The questions arising in this case are, C. Lee, 1st. Whether the court below was correct in instructing the jury, that the agreement contained in Levy's receipt was usurious. 2d. Whether that receipt was admissible in evidence upon the issue of non assumpsit; and, 3d. Whether it was admissible upon either of the other issues. *Swann, for the plaintiff in error. 1. As to the usury. The court below undertook to say that the agreement and other circumstances amounted to conclusive proof of usury, when it ought to have been left to the jury, under all the circumstances of the case, to say whether the contract was usurious or not. There appears to have been a partnership in usury between Levy and M'Intosh. During that partnership, M'Intosh had loaned Levy's money at usury, and on the 23d of October, 1797, was indebted to Levy in the sum of 2,210 dollars and 24 cents, for money thus lent out at 3 and 6 months. And being satisfied that he should receive that money at those periods, he was will ing to bind himself absolutely to pay it over to Levy, whose money it in truth was. This, we say, is the true construction of the receipt. It is no more than the case of an agent binding himself to pay over, at a particular time, the money of his principal which shall at that time be in his hands. To constitute usury under the act of assembly, Rev. Code of Virginia, p. 37. there must be either a loan of money, or forbearance of a debt already due. In this case there was neither a loan from Levy to M'Intosh, nor a debt due from M'Intosh to Levy. Cowp. 115. Floyer v. Edwards. A note given without consideration is not usurious. M'Intosh was to receive the money at a certain time, and pay it over to Levy. This is the whole of the contract. He only bound himself expressly to do what in equity and conscience he ought to do. At the time the notes were given, if Levy had sued M'Intosh for the money, it would have been a sufficient answer to say that M'Intosh had not received it. If I authorize a man to lend 1,000 dollars of my money on usury for my benefit, and he does so, and has received 500 dollars for such usury, can I not compel him to pay it over to me? This is really the only question upon the merits of this case; and this seems to be decided by the case of Faikney v. Reynous, 4 Burr. 2069. and that of Petrie v. Hannay, 3 T. R. 418. in which it was held that if two be engaged in a transaction illegal, but not malum in se, and one of them pay the whole money, he may recover a proportion from the other, if this other has expressly promised to pay it. From hence it may be inferred, that although the original transaction between M'Intosh and the person to whom he lent the money on usury was illegal, and although Levy knew all the circumstances, and assented to the transaction, yet, inasmuch as it was not malum in se, and M'Intosh agreed to pay over the money to Levy when received, the illegality of the original transaction shall not discharge M'Intosh from such agreement, or render it void. Simms, on the same side. An objection was made in the court below, to allowing usury to be given in Levy V. Gadsby. *184 Levy v. Gadsby. * 185 evidence on the plea of non assumpsit, but it was overruled by the court. If there had been no other plea, perhaps the question would be doubtful; but when the defendant has pleaded usury in a particular way, he ought not to be permitted to resort to a different kind of usury. Tate v. Wellings, 3 T. R. 538. It tends to surprise and entrap the plaintiff. C. Lee, contra. 1st. Whether usury can be given in evidence on non assumpsit. Every thing which goes to show that the contract is void, may be given in evidence on that plea; for if the promise was void when made, then, in law, it was no promise. Str. 498. Bernard v. Saul. 2 Str. 733. Burrows v. Jemino. 1 Esp. Rep. 178. There being two special pleas of usury makes no difference, the court having been of opinion that the evidence did not support those pleas. 2d. As to the construction of the agreement. If the usury is reserved for forbearance of a debt already due, it is the same thing as if reserved on an original loan. 1 Call, 74. 81. Gibson v. Fristoe. And it makes no difference whether the usurious interest is stated to be received from others or not. covered by such devices as that. way of receiving the usury. *No argument can make the it is stated in the receipt itself. Usury is not to be It is only an indirect transaction plainer than Res ipsa loquitur. Mason, on the same side. There can be no ground for the plaintiff to allege surprise in the admission of the receipt as evidence on the general issue. The special pleas set forth precisely the same facts, and nothing but a blunder in copying the pleas, and inserting the name of M'Intosh for Gadsby, prevented the evidence from being admitted on those pleas. The agreement is, that as M'Intosh is receiving usury from others, therefore he will pay it to the plaintiff. If the debtor receives usury from his debtors, it is no justification of the creditor in demanding from him. There is no evidence that the partnership of Levy and M'Intosh was a partnership in usury. |