chaser, and he cannot maintain an action on it, it being void in its original formation. This although such purchaser be entirely ignorant of the circumstances under which such bill or note be created. The declaration of a person for whose accommodation the paper is made, is not evidence. Metcalf v. Watkins, 1 Porter's R. 57.

17. A, having executed a mortgage of slaves to B, enters into a bond with C and D as his sureties, conditioned to be void if A surrenders the property mentioned therein to B, (if equity shall decree the same of right to belong to B), and that A further abides the decree of equity in a foreclosure; such bond is valid, and not void on the ground of usury, for want of consideration. In order to insure a recovery at law on such bond, it must appear that a decree of equity has been rendered on the precise points contained in the condition. Barnes v. Peck, 1 Porter's R. 187.

18. A court of chancery will not relieve against a judgment at law on the ground of usury, although well established, where it pears that the facts were available to the complainant before the rendition of the judgment at law. Roxster v. Watkins, 3 Porter's

R. 436.

19. Usury is complete where a direct loan of money is made, and more than the legal rate of interest is secured for the forbearance of payment. Whatever form, shape, or disguise a contract for the loan of money assumes where the capital is to be returned at all events, a profit made or a loss imposed on the necessities of the borrower (over and above the legal rate of interest) will constitute usury. The intent of the parties to commit usury, where the contract is not upon its face usurious, is to be collected from the circumstances of the case, the situation and object of the parties at the time of the loan, the character of and use to be made of the funds loaned, or article transferred, and the time, manner, and place of repayment. A contract for the loan of money, upon which a note and surety is taken, and which, by the terms of the note, is to be repaid in another state, (not containing any agreement as to the particular rate of interest to be charged,) which, after maturity and the insolvency and death of the borrower, is extended by his sureties upon a new contract, under which a higher rate of interest is charged upon the note after its maturity than is authorized by the laws of the state where the note is payable, is usurious. Ely v. McClung, 4 Por. R. 128.

20. A defence of usury, as it avoids a contract, is allowable under a plea of non-assumpsit. But a special plea disclosing particularly the facts proposed to be proved in a defence of usury, is allow

able; special demurrers not being tolerated in this state. But where a loan is made in New York, and the interest is there paid on it, and a bill is there drawn, payable in Alabama, for the amount of the loan with usury, the law of the former state furnishes the criterion by which it is to be determined whether the contract is usurious. It is incumbent on an endorser of negotiable paper, if he would prevent usury from being set up against him, to show that he became the innocent holder of the paper, for a valuable consideration, before its maturity. Hancock v. Andrews, 9 Porter's R. 9.

21. The courts of one state cannot judicially know what are the laws of another. The courts of this state will give effect to a contract according to the law of the place where it is to be performed, unless it violates some law of the lex fori, or comes in contact with the established policy of the country; but the remedy is governed by the law of the lex fori. Every endorsement is a new contract. Givens v. the Western Bank of Geo. 2 Alabama, 397.

22. Where a note is made for the purpose of being sold by the payee at a greater discount than the legal rate of interest, and is sold to one who is ignorant of the purposes for which the note was made, the latter is not chargeable with usury, and although the note in his hands would be liable to be scaled to the amount paid for it, as having no other consideration to support it, yet if the parties subsequently give a new note, the defence arising out of the consideration cannot be made, as it is equivalent to a new promise to pay, without disclosing the defect in the consideration. Cameron & Johnson v. Wall, 3 Alabama, 158.

23. Usury is a defence personal to the party agreeing to pay it, or those who stand in his place as representatives. Fenno et al. v. Sayre & Converse, 3 Alabama, 458.

24. The statutes against usury were intended for the benefit of the borrower; they confer a personal privilege on him, which he may waive, and if he does, no one else can take advantage of them. Cook & Carnejay v. Dyer, 3 Alabama, 643.

25. D held a deed of trust of C, on land and slaves, more than sufficient to satisfy a debt due from C, but consisting entirely of usurious interest. C & K had also a deed of trust on the same 'property, to secure to them a debt due from C, but subsequent in point of time to the deed of D. By an arrangement entered into by all the parties, C & K accepted a bill of exchange drawn on them by C in favor of D, on condition that D should enter satisfaction on the record of his deed of trust, which he accordingly did; and C & K sold the

property conveyed thereby, and appropriated to the payment in part of their debt due from C. Held, that in a suit by D against C & K on their acceptance, they could not set up the usury in the transaction between D and C to defeat the action. Cook v. Dyer, 3 Alabama, 643.

To avoid a security by reason of usury, the contract itself must be usurious to make it void. 2 Mod. 307.

Exchange for $7,287.7.5.

New York, March 11, 1837.

26. Sixty days after date of this my first of exchange, second of same tenor and date unpaid, pay to Messrs. Pond, Converse & Wadsworth, or order, seven thousand two hundred and eighty-seven 75 dollars, negotiable and payable at the bank of Mobile, value received, which place to the account of Your obedient servant,

To Messrs. SAYRE, CONVERSE & Co.
Mobile, Ala.*.

(

?

D. CARPENTER.

100

H. M. Andrews & Co. were merchants residing in the city of New York; and when the above bill was drawn the defendant had become liable to H. M. Andrews & Co., as endorsers upon a former bill for $6,000, drawn by E. Hendricks on Daniel Carpenter of Montgomery, Alabama; the last mentioned bill was dated at New York, and fell due on the 21st February, 1837, and was protested for non-payment. The defendant, Pond, it seems was in New York in the month of March, 1837, shortly after this protest, when H. M. Andrews & Co. threatened to sue him on the protested bill. And the defendant, Pond, rather than be sued in New York agreed to pay H. M. Andrews & Co. ten per cent. damages on the protested bill, and ten per cent. interest and exchange on a new bill to be given, besides the expenses on the protested bill. Accordingly, defendant, Pond, delivered to H. M. Andrews & Co. the bill of exchange, endorsed by the defendant in blank, on which suit was brought. The bill was remitted by H. M. Andrews & Co. to S. Andrews, at Mobile, for collection; the drawees refused to accept, and it was protested for non-acceptance; and after this protest it was transferred by S. Andrews to J. J. Andrews, the present plaintiff.

The suit was brought in the United States Circuit Court for the Southern District of Alabama. Defence, usury under the laws of New York. Verdict for defendant. Plaintiff prosecuted a writ of error to

the Supreme Court of the United States, and per Curiam, Taney, Chief Justice:

The defendants allege that the contract was not made with reference to the laws of either state, and was not intended to conform to either. That a rate of interest forbidden by the laws of New York, where the contract was made, was reserved on the debt actually due, and that it was concealed under the name of exchange in order to evade the law. Now, if this defence is true, the question is not which law is to govern in executing the contract, but which is to decide the fate of a security taken upon an usurious agreement which neither will execute. Unquestionably it must be the law of the state where the agreement was made and the instrument taken to secure its performance.

In fine, if the parties intended to allow no more than a fair rate of exchange, testing it by the market price of good bills of this description, it was not usury. If, on the contrary, more was intended, it was usury. It is true, that after this bill had been negotiated between H. M. Andrews & Co. and the defendant, other persons might have lawfully purchased it at a much greater discount than the market rate of exchange. But, as between the debtor and his creditor, no difference in the rate of exchange can be made on that account. If, in consideration of further forbearance, the creditor receives a new security from his debtor for an existing debt, he cannot enlarge the amount due by exacting any thing, either by way of interest or exchange, on account of the additional risk he may suppose he runs by this extension of credit, nor on account of any doubt he may entertain as to the punctuality of payment, or the ultimate safety of his debt.

There is no rule of law fixing the rate which may be lawfully charged for exchange. It does not altogether depend upon the cost of transporting specie from one place to another, although the price of exchange is no doubt influenced by it. But it is also materially affected by the state of trade, by the urgency of the demand for remittances, and by the quantity brought into market for sale; and sometimes material changes take place in a single day, although no alteration has happened in the expense of transporting specie. The Court can therefore lay down no rule upon the subject. Whether they exacted any more or not for the forbearance of their debt, is a question for the jury to decide; and in order to enable them to do it correctly, they must be allowed to hear evidence which either of the parties may offer, as to the rates of exchange for such a bill as this, which was payable in specie, and not in any depreciated currency. Andrews v. Pond, 13 Peters, 65.

SECTION V.

ARKANSAS.

Revised Statutes, page 469, chap. 80.

INTEREST.

SECTION 1. Creditors shall be allowed to receive interest at the rate of six per centum per annum, when no other rate of interest is agreed upon, for all moneys after they become due by any instrument of the debtor, in writing, on money lent, on money due on settlement of accounts, from the day of liquidating or ascertaining the balance due thereon, on money received for the use of another and retained without the owner's knowledge of the receipt thereof, on money due and withheld by unreasonable and vexatious delay of payment or settlement of accounts, and on all other moneys due and to become due for the forbearance of payment, whereof an express promise to pay interest has been made.

SECT. 2. The parties may agree, in writing, for the payment of interest not exceeding ten per centum per annum, on money due or to become due, upon any contract, whether under seal or not.

SECT. 3. Interest shall be allowed on all moneys due on judgments at law or decrees in equity, from the day of the rendition thereof until satisfaction be made by payment or sale of property.

SECT. 4. Judgments or decrees upon contracts, bearing more than six per cent. interest, shall bear the same interest as may be specified in such contracts; and the rate of interest shall be expressed in all such judgments and decrees, and all other judgments and decrees shall bear interest at the rate of six per centum per annum, until satisfaction is made as aforesaid.

SECT. 5. No person or corporation shall, directly or indirectly, take or receive in money, goods, or things in action, or in any other manner, any greater sum or value for the loan or forbearance of any money, goods, or things in action, than is in this act prescribed.

SECT. 6. Every person, who for any such loan or forbearance shall pay any greater sum or value than is in this act allowed to be received, or his personal representatives may recover in an action against the person who shall have taken or received the same, or his personal representatives, the amount of money so paid, or value delivered, above