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Stockett vs. Ellicott.-1831.

for the space of three years, ten months and one day; and insisted that thereby the said defendant was charged with interest above the rate of interest allowed by law, and that the same was evidence of usury.

At the foot of the account so read in evidence by the defendant, there was the following receipt, signed by the plaintiff: "July 28th, 1815-Received his note in full for the above account, it being understood, in case of error either way, should any be discovered, that it shall be corrected."

The plaintiffs then prayed the court to instruct the jury, that there was not sufficient evidence of usury in the transactions between the parties, which instruction the court (KILGOUR and WILKINSON, A. J.) gave. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.

The cause was argued before BUCHANAN, Ch. J., and EARLE, MARTIN, STEPHEN, and ARCHER, J.

A. C. Magruder, and Alexander, for the appellant, contended,

1. That the evidence offered did prove usury.

Tyson vs. Rickard, 3 Harr. and Johns. 109-2 Strange,

1246.

2. That the question of usury ought to have been left to the jury.

Johnson, for the appellees.

The account, which was the only evidence offered in support of the plea of usury, was admitted, with the receipt, providing for the correction of errors, which the court decided was not evidence of a corrupt agreement to charge usurious interest-this was the only point decided by the court. The receipt shows clearly, that nothing corrupt was intended. All the principal sums are admitted by the plea to be due, and therefore, the whole office of the re

Stockett vs. Ellicott.-1831.

ceipt, was to guard against errors in the calculations of interest.

As this defence involves a forfeiture to the plaintiffs, the defendant was bound to adduce the same evidence, as if he was prosecuting for the penalty.

BUCHANAN, Ch. J., delivered the opinion of the court. This is an action upon a single bill, the defence relied upon was usury, and the case is brought up on an exception taken at the trial, to an instruction by the court to the jury, "that there was not sufficient evidence of usury in the transaction between the parties."

Every case of usury must depend upon its own circumstances. It is the intention, and not the words used, that gives character to the transaction, and that intention when it can be reached, must govern. Where the real truth and substance is ascertained to be a loan of money, a lending on one side, and a borrowing on the other, at a rate of interest exceeding six per cent. per annum, the form given to the transaction is not material; no shift, or device, can take it out of the Act of Assembly. Here the bill in question was given for the amount of an account rendered against the appellant, in which interest was charged upon the different items. Every item of principal charged in the account, is admitted; but it is said, that the interest charged on different items of principal, exceeded the rate of six per cent. a year, and therefore, that the bill being given for the whole amount, including the interest so charged, it was an usurious transaction.

Whatever might have been the case, if it had appeared that the alleged over charges of interest were, by agreement of the parties, made and allowed, in consideration of forbearance, and giving day of payment to the appellant, of the several principal sums of money due from him, on which such charges of interest were made, there is in this record no evidence, express or implied, of any such agreement or intention, or tending to show, or prove any such

Stockett vs. Ellicott.-1831.

agreement or intention, without which there could have been no usury. The agreement, the intention of the parties, constituting a principal ingredient of usury.

But it is contended, that whether it was an usurious contract or not, was a question which ought to have been left to the jury, and that the court did wrong in instructing them," that there was no sufficient evidence of usury.' If there had been any evidence tending to prove an usurious contract, it should properly have been left to the jury; but there was no such evidence, and surely in the absence of any evidence tending even to prove it, the court cannot have erred in instructing the jury, " that there was not sufficient evidence of usury." So far from there being any evidence tending to prove usury, or from which the jury could have inferred an usurious agreement, the evidence set out in the record tends to a different conclusion.

The only evidence in the case is, the single bill, the account for the amount of which it was given, and a receipt on the back of the account by the obligee, for the bill in full of the account, of the same date with the bill; which receipt contains a stipulation, "that in case of error either way, should any be discovered, it shall be corrected." That receipt, if it tends to prove any thing, it is, that there was perfect fairness in the transaction; it seems to presuppose that there might possibly be mistakes in the charges, either of items of principal, or of interest, and provides for the correction of them, if they should be made to appear, and thus tends to show that there was not any usurious intention or agreement, rather than that there was. For can it be, that if there were known charges of interest exceeding the legal rates, intended and agreed upon between the parties, as a consideration for forbearance, and time given to the appellant for payment of the several sums of principal charged in the account, the obligee would at the same time, have armed the appellant with a stipulation for the correction of those very over charges, the price of forbearance!

Hamilton vs. Jones.-1831.

The evidence goes to negative the allegation of usury, and no other inference can be drawn from it.

The court therefore, we think, did right in giving the instruction complained of. It was the least it could do, to tell the jury there was not sufficient evidence of usury, when there was no evidence at all.

JUDGMENT AFFIRMED.

SAMUEL HAMILTON US. SAMUEL A. JONES.-June, 1831.

E, tenant for life, permitted H to cut a ditch through her land, to supply his mill with water. Upon the death of E, a verbal agreement was made between the remainder-man and H, for the purchase of the ditch, and the amount of the purchase money was to be ascertained by certain arbitrators. An award being made, H filed his bill for a performance of this agreement. The defendant's answer admitted the facts, but relied upon the statute of frauds as a bar-HELD, there was no part performance, and the contract could not be enforced.

The ground upon which Chancery interposes its aid, in the case of a clear part performance of a verbal agreement, is, that to withhold relief, would be to suffer a party, seeking to shelter himself under the statute of frauds, himself to commit a fraud.

APPEAL from the Equity side of Prince George's County Court.

The bill which was filed on the 28th of December, 1825, stated, that some time in the year 1817, the complainant (the present appellant,) purchased a mill-seat and mill, on a water course called "Piney Branch," being part of a tract of land called the "Resurvey on part of Isaac's Park," containing two acres; that for the purpose of conveying water to his mill, with greater convenience and effect, he shortly after his aforesaid purchase, by the leave, and with the consent of a certain Elizabeth Jones, cut a ditch of about 100 or 120 yards in length, through a small angle, or corner of a tract of land called the "Wintersols Range," at that time in the possession of the said Elizabeth Jones, who was tenant thereof for life, under the will of her deceased husband, Richard S. Jones, and has continu

Hamilton vs Jones.-1831.

ally since, quietly used, and enjoyed the benefit of the said water course, by means of the said ditch, until some time in October last, when a certain Samuel A. Jones, (the appellee,) to whom the land called "Wintersol's Range," had descended, upon the death of his mother the said Elizabeth Jones, which occurred some time in the preceding month of July, informed the complainant, that he conceived his land was injured by said ditch, and that some compensation must be made him therefor, which the complainant being perfectly willing to do, to any reasonable or just amount, assented; but they being themselves unable to agree upon what should be the amount of the compensation, it was agreed to leave the matter to the arbitration of two persons, one to be chosen by each party, with power to the arbitrators, in case of disagreement, to call in a third person as umpire; the defendant, the said Jones, promising upon the payment by the complainant to him, of the sum so to be ascertained to secure to the complainant and his heirs, the right to convey water to his mill in the manner aforesaid, by a legal, and valid instrument of writing. That the arbitrators not being able to agree upon the sum to be paid by the complainant, in pursuance of the authority given them for that purpose, called in an umpire, who determined, as complainant is informed, that ninety dollars was an adequate compensation for any damage, or injury which the defendant had, or might sustain by reason of said ditch, which sum, and ten dollars more, the complainant has already offered, and is still willing to pay the defendant, who refuses to receive the same, and threatens to destroy said ditch, and divert the water from complainant's mill, unless he will pay a much larger sum. Prayer for an injunction and a general relief, &c.

The County Court granted an injunction accordingly, until further order.

The answer of the defendant admitted the purchase by the complainant, of the mill seat, &c., as stated in his bill, and that he did with the leave, and permission of defendant's

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