endomorphosis/Caselaw_Access_Project_JSON

1"{\"id\": \"6733018\", \"name\": \"Brown v. Toell's Administrator\", \"name_abbreviation\": \"Brown v. Toell's\", \"decision_date\": \"1827-08-21\", \"docket_number\": \"\", \"first_page\": \"491\", \"last_page\": \"492\", \"citations\": \"5 Rand. 543\", \"volume\": \"26\", \"reporter\": \"Virginia Reports\", \"court\": \"Supreme Court of Appeals of Virginia\", \"jurisdiction\": \"Virginia\", \"last_updated\": \"2021-08-10T23:28:09.693703+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"*Brown v. Toell\\u2019s Administrator.\", \"head_matter\": \"*Brown v. Toell\\u2019s Administrator.\\nAugust, 1827.\\nEquitable Relief \\u2014 Usurious Judgment \\u2014 Bill \\u2014Where relief is sought in equity, against a judgment at law, on the ground of usury, the bill must put that matter directly in issue.\\nNotos-'Agreement to Pay Usurious Interest \\u2014 Effect.\\u2014 An agreement, subsequent to the execution of a note, to pay more than legal interest, in consideration of delay of payment, will not affect the note, although it may entitle the debtor to relief for all beyond legal interest.\\nJudgment \\u2014 Relief of Bail. \\u2014 Bail cannot be relieved inequity against a judgment at law by default, without assigning some good cause why he did not defend himself at law.\\nThis was an appeal from the Lynchburg \\u00abChancery Court.\\nThe following opinion gives a full view \\u25a0of the case, which was submitted without argument.\\nChanc?ry Practice \\u2014 Allegations and Proofs Must Agree, \\u2014 3:i a court of equity as well as\\u00edn a court \\u25a0of law, the allegations and proof must agree. A recovery will not be allowed upon a case, although proved, which differs essentially from that alleged in the bill. Wren v. Moncure. 95 Va. 375, 28 S. E. Rep 588, citing the principal case as authority. To the same effect the principal case is cited in Smith v. Nicholas, 8 Beigh 364.\\nUsury. \\u2014 See monographic note on \\\"Usury\\u201d appended to Coffman v. Miller, 26 Gratt. 698. The prin cipa.1 case is cited on the subject of usury in Moseley v. Brown. 76 Va. 426, and on the subject of equitable relief from a usurious judgment, in Snyder y. Middle States, etc.. Construction Co., 52 W. Va. \\u00ab55, 44 S. E. lien. 252.\\nJudgment \\u2014 Relief of Bail \\u2014 To the point that bail cannot be relieved in equity against a judgment, without assigning some good cause why he did not defend himself at law, the principal case was cited with approval in Mann v. Drewry, 5 Leigh 304.\", \"word_count\": \"1243\", \"char_count\": \"6999\", \"text\": \"August 21.\\nJUDGE CABELL.\\nBenjamin Perkins executed to Peter Toell his negotiable note for,$500, on which Humphreys, administrator of Toell, brought suit in the Superior Court of Law for the \\u00abcounty of Campbell, and Brown became common bail. No defence being made, judgment was rendered against Perkins and Brown for the amount of the note, with interest. Brown filed his bill in the Court of Chancery for the Lynchburg District, in which he stated, that shortly after the institution of the suit, he removed to the county of Nelson, \\\"and taking it for granted that Perkins would attend to the said suit, and on the trial thereof, procure evidence of all the credits to which he was entitled, he gave himself no farther trouble about the matter;\\\" but that Perkins, although entitled to large credits, failed, from the extreme derangement of his affairs, and other circumstances, (not specified,) to prove the credits; in consequence whereof, judgment was rendered, as aforesaid, for the whole amount of the principal \\u00abof the said note, with interest thereon. He alleges as a fact, (which he says he will be able to prove,) that Toell was indebted to Perkins for various dealings, in a cum equal, or nearly equal, to the amount of the note; for none of which had Perkins been paid: that Toell acknowledged, *in his life-time, that there was a very small balance, if any, due on the said note; and moreover, that since the death of Toell, Perkins had paid to his widow, with the knowledge of his administrator, $100; which payment was intended to be on account of certain extra interest upon the said note, agreed by the said Perkins to be paid to the said Toell. He prayed an injunction, which was granted.\\nHumphreys answered, denying all knowledge of the credits claimed, of the payment to Mrs. Toell, and of any agreement to pay usurious interest.\\nBrown filed an amended bill, and without making any new charge, made Perkins a party, calling on him to say, among other things, what excess of interest was demanded and received by the said Toell, of him the said Perkins.\\nThe only evidence that could, in any aspect of the case, be relied on as a material, is that of Nicholas Harrison, who testifies, that Toell told him, a short time before his death, that the note in question had been given for money lent at an interest of 214, per cent, a month : that the interest had been paid in goods; and that he was then dealing with Perkins, and would endeavour immediately to collect his whole debt; and that about $200 were then due.\\nThe questions are, whether any relief is to be granted, either on account of the alleged usury, or of the credits claimed for Perkins?\\n1. As to the usury.\\nIt is competent to a party to an usurious contract, to go into equity for relief as to the interest, even after a judgment at law, and without assigning any reason for having failed to defend himself at law. But, this can be done only on a bill properly framed for the purpose.\\nIf the bill in this case had impeached the transaction as usurious in its origin, and had sought relief on that ground, the testimony of Harrison might have been relied on in support of a claim to be exempted from paying any interest whatever. But, there is no such allegation in the bill; and, therefore, the testimony of Harrison as to the usury, *relating to a matter not in issue, is irrelevant, and ought to be disregarded.\\nThe only part of the bill that relates to the question of usury, is that which states that since the death of Toell, Perkins had paid his widow, with the knowledge of the administrator, the sum of $100 for extra interest on the note, agreed by Perkins to be paid to Toell. But, this is not stated to have been originally agreed, when the note was executed. It may have been a subsequent agreement, in consideration of delay of payment, after the note became due; in which case, it would not have affected the note, and the legal interest upon it, although, if supported by testimony, it might have entitled him to relief for all beyond legal interest. But, the allegation, as made in the bill, is denied in the answer; and is not supported by Harrison's testimony, nor any other in the cause.\\nThe appellant was, therefore, rightly dismissed from Court, so far as relates to the question of usury.\\n2. We will next examine his pretensions, on the ground of the credits to which, it is alleged, Perkins was entitled.\\nIt may be admitted that, as to these credits, Harrison's testimony is relevant, and even satisfactory. But the appellant will, nevertheless, be entitled to no redress. The bail had a right to make any defence at law, which the principal himself might have made. He might have defended himself on the ground of these credits. There is no allegation of a defect of testimony ; for, even in his bill, he declares his ability to prove them. He ought to have defended himself at law: and as he assigns no good reason, why he did not do so, the door of the Court of Equity ought not to have been opened to him.\\nThe decree of the Chancellor should be affirmed.\\nJUDGES CARR and GREEN concurred, and the judgment was affirmed.\\nThe President and Judge Coalter absent.\"}"