Which instruction, the Court
(Thruston, J.,absent,) refused to give.
The counsel of the plaintiffs then prayed the Court to instruct the jury, “ That the plaintiffs are entitled to recover in this action, the sums which the jury are satisfied, from the evidence, were paid by the plaintiffs to Philip Alexander, on the bond dated 28th *453November, 1828, unless the defendant proves to the jury that before such payments, the plaintiffs were notified that the bond of 28th November, 1828, was tainted with usury, and instructed to dispute the same.”
Which instruction, the CouRT also refused ; principally because they were of opinion, that the contract of the defendant was not a contract for indemnity, but an absolute obligation to pay the bond assigned to Philip Alexander; and that if that bond was usurious, this bond of the defendant to pay it was also usurious and void. See Story’s Conflict of Laws, 208.
The plaintiff’s counsel then prayed the Court to instruct the jury, “That if they should believe, from the evidence, that the note of Mary James to the defendant, assigned by her to Alexander, dated 28th November, 1828, was made on an usurious agreement entered into between said defendant and said Alexander, but that the plaintiffs had no knowledge of such usury at the time they were called upon to pay the balance due on the note, nor at any time before, and paid the same under a belief that the same was bond fide due, and without any knowledge that there was any objection to the validity of said note, and without any notification or communication from the defendant, then the plaintiffs are entitled to recover.”
Which instruction, the Court also refused.
Whereupon the plaintiff’s counsel prayed the Court to give the jury the same instruction, with this addition:
“Unless the jury should be satisfied from the evidence, that the said Mary James knew of the said usurious agreement under which the said note was given and assigned as aforesaid.”
But the Court still refused to give the said instruction, so amended.
Whereupon the counsel of the plaintiffs prayed the Court to instruct the jury, as in the former prayer, to the words “ communication from the defendant,” inclusive, with the following addition, to wit:
“And if the jury believe from the evidence, that the defendant waived and abandoned all objection to the validity of said note, and assented that the same should be considered as a valid and legal obligation, then the plaintiffs are entitled to recover; and it is competent for the jury to infer such waiver and assent, if they shall believe, from the evidence, that the defendant, after obtaining the said money, made payments of interest as the same became due, and expressed her desire and intention to pay the said note, and her anxiety to save her aunt’s properly from sale, under the said deed of trust.”
But the Court still refused to give the instruction, as thus further amended. ■
*454The plaintiffs’ counsel then prayed the Court to instruct the jury, “ That if they believe from the evidence, that there was no loan of money from Alexander to the defendant, secured by the bond of the 28th of November, 1828, but that the said bond was bond fide purchased by said Alexander of the defendant, at a discount exceeding the legal rate of interest, the said Alexander not knowing, when he purchased the said bond, that the same was loaned by the said Mary James to the defendant solely to raise money on, the transaction is not usurious, and the plaintiffs are entitled to recover, in this action, the moneys paid by them to Alexander on said bond.”
Which instruction, the CouRT gave, as prayed.
The plaintiffs’ counsel further prayed the Court to instruct the jury, “ That if, from the evidence, they should believe that Philip Alexander, when he paid the money, and took the note as aforesaid, intended to buy the said note for the amount given on it, not knowing that the note was made by Miss James to the defendant, in order to raise money on it, and did not mean, by-disguising the advance under the form of a purchase, to evade the statute of usury; then such purchase was lawful.”
Which instruction, also, the Court gave, as prayed.
Whereupon the defendant’s counsel moved the Court to instruct the jury, as follows, to wit:
“ That if the jury find and believe from the evidence aforesaid, that for several months before the execution ahd assignment of the bond or note mentioned and described in the covenant upon which this suit is brought, there were such negotiations and propositions pending between said John Moncure, (acting in behalf of defendant,) and said Philip Alexander, as are mentioned and set forth in said affidavits of Moncure and Alexander, and in the papers and exhibits therein referred to; that the true and genuine nature and object of such negotiations and propositions, and of the successive arrangements and understandings resulting from them, as really contemplated by both parties, were, that said Alexander should make an advance of money to defendant, upon a future bond or note of said Mary James, payable to defendant, and by her to be assigned to said Alexander, under the name and form of a sale of such bond or note, at a discount above, the legal rate of interest; that discount from the amount of such bond or note should be so adjusted as that the difference between the full amount of the bond or note, and the sum advanced on it, should be equivalent to an interest at the rate of 12 per cent, per annum on the sum actually advanced, for the time of forbearance to be given on such bond or note.
“That all the said preliminary negotiations, propositions, and *455arrangements, were just before the execution and assignment of the bond or note referred to in the covenant set forth in the plaintiff’s declaration, (such bond or note being the same note under seal, or bill obligatory above given in evidence by plaintiffs with the said covenant, and annexed to the said original affidavit of said John Moneare as aforesaid,) terminated in an arrangement so modifying the before-pending propositions and arrangements aforesaid, as that said Alexander should immediately advance the defendant two thousand three hundred and forty dollars, and that defendant should assign to him a note or bond thereafter to be drawn and executed by said Mary James, for such amount as should make the difference between the sum so advanced and the sum to be ultimately received by him for the principal and interest of such bond or note, equivalent to an interest of twelve per cent, per annum on the sum so advanced, according to the principle on which said Alexander, in his aforesaid letter (B 1,) to said Mon-cure, insisted that the profits of the transaction should be calculated and secured, and that the payment of such bond or note should be collaterally secured by a deed in trust of the land and slaves of said Mary James.
“ That the said Alexander, in pursuance and execution of such arrangement and understanding, did advance the two thousand three hundred and forty dollars to defendant, or for her use.
“ That the said Mary James, in the pursuance and execution of the same arrangement and understanding on her part, did, after-wards, on the 28th day of November, 1828, execute and deliver the said note under seal, or bill obligatory of that date, and, after-wards, on the 10th December, 1828, duly execute and deliver to said J. Moncure and P. Alexander the said deed in trust, bearing that date, as above given in evidence by defendant, and annexed to the said cross-examination of said Moncure, and marked (D 2); and that the defendant, in the pursuance and execution of said arrangement and understanding, did assign the said bill obligatory to said Alexander, immediately on the execution of the same by said Mary James.
“ That the amount of said securities, and the time with which the said Mary James was indulged, by said deed in trust, for payment, were knowingly and designedly calculated and adjusted by and between said Alexander and said Moncure, in behalf of defendant, so as to produce, in the end, a yearly interest of twelve per cent, on the sum advanced, during such time of indulgence; and that the principal and interest secured by the said instruments, were intended and designed, by both said parties, to amount, and did, in fact, amount, to greatly more than the sum so advanced, with legal interest for such time of indulgence as aforesaid ; and *456did, in fact, substantially secure to said Alexander a yearly interest of twelve per cent, on the sum so advanced by him.
“ Then the jury, if they find such facts as aforesaid satisfactorily proved, and fairly deducible from the evidence aforesaid, may properly infer from such facts, and fairly presume, that the transaction was substantially a loan, within the meaning of the statute against usury; notwithstanding it may appear to have been made in the form and name.of a sale of the said Mary James’s bond or note; and then the jury may, from the same facts and circumstances, if proved and deduced as aforesaid, also properly infer, and will presume, that the sum of money deducted and retained by the said Alexander from the nominal amount of said bond or note, was substantially usurious interest under another name, for the forbearance of the money so lent or advanced.”
Which instruction, the Court gave as prayed.
Mr. Jones, for the defendant,
contended for the right to open and close the argument to the jury, as- the defendant held the affirmative of the issue; and cited Archbold’s Civil Practice, 169, 170 ; Goodtitle v. Braham, 4 T. R. 497. •
But inasmuch as the plaintiffs were to prove damages sustained by the breach of the covenant, the Court decided that they had a right to open and conclude the argument to the jury.
After the cause had been argued to the jury by Mr. Dunlop, for the plaintiffs, and by Mr. Swann and Mr. Jones, for the defendant, Mr. Jones moved the Court to instruct the jury (in explanation of the fourth and fifth instructions prayed by the plaintiff's’ counsel, and given by the Court) as follows :
“ That if the said note was both- drawn and dated after a distinct understanding and agreement had been entered into with the said Alexander to take an assignment of such a note thereafter contingently to be drawn, at a discount exceeding the legal rate of interest, and the said Alexander knew, at the time he took the note, that it had been drawn and assigned for the specific purpose of carrying out the said previous understanding and agreement with him; or if it was understood and known by him, throughout all the preliminary negotiations which led to the final arrangement, that they had reference to a contingent note thereafter to be drawn and assigned for that specific purpose, and that such note was to be framed conformable to such final arrangement when it came to be concluded on between the parties ; then it is to be presumed he had sufficient knowledge of the purpose for which said note was drawn by Mary James, within the meaning of the said fourth and fifth instructions, to affect him with the consequences of such knowledge ; that is to say, that such knowledge of the specific purpose and object of the parties to the note, was
*457sufficient notice that such were the only purpose and object, and that the bond or note was for no other consideration, if such be, in truth, the fact.”
Which instruction the Court refused to give; saying that the matter was proper to be left to the jury, to draw such inferences as they should be satisfied ought to be drawn from the evidence in that respect.
Mr. Key, for the plaintiffs, then prayed the Court to instruct the jury, that if they should be satisfied, by all the evidence in the cause, that it was a loan at usurious interest, under cover of a sale, the contract was usurious and void ; but if they should be of opinion, from the evidence, that it was a sale and purchase of the bond of Mary James, then it was not usurious.
Mr. Jones, for the defendant, agreed to the instruction, with an addition, saying, in effect, that if the jury found the facts to be as stated in his former prayer, it was a loan, and not a sale.
Mr. Key accepted and agreed to this modification of the instruction.
Verdict for the defendant.
Both parties took bills of exception. The plaintiffs carried the cause to the Supreme Court of the United States by writ of error, where the judgment of this Court was reversed, and a venire de novo awarded, at January term, 1839. 13 Peters, 345.