Moseley v. Brown

Citations

• 76 Va. 419
• 1882 Va. LEXIS 47

Syllabus

<p>1. Usury.—Sale at discount greater than legal interest, of negotiable notes made and endorsed in blank for purpose of raising money, by broker for maker to purchaser ignorant of that purpose, is not usury.</p> <p>2. Idem.—But payment of illegal interest, after maturity of notes for forbearance, is usury, and the usurious premium may be recovered back.</p> <p>3. Idem—Borrower and lender at usurious rates, not in pari delicto; the former acts under a quasi duress; and the maxim, '■'In pari delicto, potior est conditio defendentis,” does not apply.</p> <p>4. Idem—Statute Construed.—Common law remedy of borrower to recover back illegal interest, is restored by the repeal of Code 1873, ch. 137, § 10, and the amendment of § 5, by ch. 122 of Acts 1874, in case of usury for forbearance.</p> <p>Qucere : As to case of negotiable note usurious in its inception,</p> <p>o. Practice—Issue out of chancery—Instructions.—Bill to recover back alleged usurious interest paid both in the inception and for forbearance; issue directed to try, “Whether the transactions in the hill alleged to be usurious, be usurious or not.” Proved, first, that the negotiable notes had been made and endorsed in blank for the purpose of raising money, and sold (at discount greater than legal interest) by broker for maker to purchaser ignorant of that purpose; and, second, that after maturity of notes, maker had paid holder illegal interest for forbearance. Court below, in substance, instructed the jury, that if they believed the facts stated in first proposition to be proved by the evidence, they must find for the defendants; and also that, in ascertaining whether or not the transactions in issue were usurious or not, they should exclude from consideration the payments of interest made by the maker.</p> <p>Held :</p> <p>These instructions were erroneous. The issue 'was broad enough to cover all the transactions, as well the payments for forbearance as the rest. In this case, the usury being, not in the i