FAW V. ROBERDEAU'S EXECUTOR. cessary to support such a judgment; otherwise the judg ment must be rendered upon the verdict for the plaintiff. The five years mentioned in the 56th section of the act of assembly, must have elapsed before the death of the testator. If they did not, no lapse of time after his death can bring the case within the purview of this act. In the present case, the five years had elapsed. But there is a saving clause, in the following words: "Saving to all persons non compos mentis, femes covert, infants, imprisoned, or out of this commonwealth, who may be plaintiffs in such suits, three years after their several disabilities removed." It is one of the facts stated, that the plaintiff was within the commonwealth of Virginia, in the year 1786, after the cause of action accrued: and hence it is argued, that he is not within the saving clause of the section, and that, to exclude him from the benefit of that clause, it is not necessary that he should have become a resident of that state. The court has not been able to find any case in which this question has been decided. We are, therefore, obliged to form an opinion from a consideration of the act itself. The words of the act are, "out of this commonwealth," and such persons may bring their actions within three years after their "disability" removed. The court is of opinion, that the disability is removed at the moment when the person comes into the commonwealth; and he must bring his action within three from that time. years But something further than this was necessary to authorise a judgment for the defendant. It ought to have appeared, that Roberdeau was a resident of the state of Virginia at the time the plaintiff came into that state in 1786; and that fact is not in the case stated. The judg ment, therefore, ought to have been for the plaintiff, and not for the defendant. Judgment reversed, with costs, and judgment entered for the plaintiff on the verdict. RAY v. LAW. RAY V. LAW. LAW having a mortgage on real estate in the city of A decree for a Washington, and Ray having a subsequent mortgage on sale of mortthe same estate, Law had filed his bill in chancery in the gaged property, upon a bill circuit court of the district of Columbia, for a foreclo- to foreclose, sure and sale of the mortgaged property, and made Ray is a final dea defendant. The bill having been taken for confessed cree, from which an apagainst Ray, a decree was obtained by Law for a sale. peal will lie. The sale had been made under the decree, and notice given, that on a certain day the sale would be ratified unless cause was shown. On that day Ray appeared; but not showing good cause, in the opinion of the court, the sale was confirmed. Ray prayed an appeal to this court on the decree for the sale, which the court refused, on the ground, as it is understood, that the decree for the sale was not a final decree in the cause. Ray on this day presented a petition to this court setting forth those facts, among others, praying relief, and that this court would direct the court below to send up the record. At the same time he produced sundry papers, purporting to be the substance of that record, but not properly authenticated. MARSHALL, Ch. J. The act of Congress points out the mode in which we are to exercise our appellate jurisdiction, and only authorises an appeal or writ of error on a final judgment or decree. C. Lee, for the petitioner, contended, that this was a final decree as to Ray, and cited 2 Fowler's Exchequer Practice, 195, to show, that such a decree would, in England, be considered such a final decree as would authorise an appeal. March 5. MARSHALL, Ch. J. We can do nothing without seeing the record, and the papers offered cannot be considered by us as a record. RAY V. LAW. The court, however, is of opinion, that a decree for a sale under a mortgage, is such a final decree as may be 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. LEVY v. GADSBY. LEVY V. GADSBY. If 4 lend ERROR to the circuit court of the district of Co money to B, lumbia, sitting at Alexandria. who puts it out at usu rious interest, This was an action of assumpsit, by Levy, the in and agrees to dorsee of a promissory note, against Gadsby, payee pay to the and indorsor of M'Intosh's note. same rate of interest which he is this is usury B's note to The declaration consisted of three counts. The 1st, receiving up in addition to the common averments, alleged, that the on 4's money, plaintiff had brought suit upon the note against M'Inbetween A tosh, in Maryland, and recovered judgment, but that and B, and before execution made M'Intosh died insolvent. The an indorsor of 2d count was in the usual form, excepting that it al4, may avail leged that Gadsby, became liable by the custom of himself of the merchants. The 3d count was for money had and replea of usury. ceived. The defendant pleaded, 1st. Nen assumpsit. If the usury 2d. As to the first count, usury between M'Intosh and be specially pleaded, and Levy, stating the transaction as a loan, by the latter to the court re- the former. 3d. As to the first count, usury between ject the evi- the same parties, stating the transaction as a forbear dence offered upon such mitted upon ance of an antecedent debt. The 4th and 5th were like pleas of usury to the 2d count. The 3d and 5th special plea, it may be ad- pleas, by mistake, alleged the note given, in pursuance the general of the corrupt agreement, to be a note made by Gadsby issue, not- to M'Intosh, and by him indorsed to Levy; whereas, withstanding the note in the declaration mentioned, was a note made it has been refused upon by M'Intosh to Gadsby, and by him indorsed to Levy. the special To the pleas of usury, there were general replications and issues, and a general verdict for the defendant. On plea the trial three bills of exception were taken by the plaintiff. LEVY V. GADSBY. The court clusive power written con 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 has the exdate, promised to pay to Gadsby, or order, 1,436 dol- of deciding lars, 62 cents, for value received, negotiable at the whether a bank of Alexandria. And it was proved that Levy tract be usuand M'Intosh carried on trade and commerce in co- rious. partnership, under the name and firm of Levy and M'Intosh, at Alexandria, Levy residing at Georgetown, about 8 miles distant from Alexandria. I hat they so continued to carry on trade and commerce from sometime 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, sixty-two cents, dated the first instant, negotiable at the bank of Alexandria, at six months after date, indorsed by said Gadsby; the other to Thomas J. Beatty, of same date, at three months after date, for twelve hundred and seventy dollars, eighty-seven cents, negotiable at the bank of Columbia, and indorsed by said Beatty. The two notes making the sum of two thousand seven hundred and seven dollars, fortynine 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, twenty-four cents, as by their account, handed me by 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 LEVY V. GADSBY. only to stand debited for twenty-two hundred and ten dollars, twenty-four cents, $2,210 24 due as per account current; $497 25 interest; $2,707 49. 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 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 an usurious contract between Levy and M'Intosh; and the court, thereupon, instructed the jury, that those circumstances did amount to proof of an 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 an 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 iustructing 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. |