which more than 6 per cent. interest is to be received; and it is also settled, that where the contract is in truth for the borrowing and lending of money, no form which can be given to it will free it from the taint of usury, if more than legal interest be secured. Scott v. Lloyd, 9 Peters, 446.

Where on a loan of money, the lender, besides his principal, contracts to receive, in lieu of interest, something which may be worth more than 6 per cent. per annum, though it may perhaps prove to be worth less, as the dividends on bank stock, the contract is usurious. Smith v. Nicholas, &c. 8 Leigh, 331; Roberts v. Tremayne, Cro. Jac. 507.

To constitute usury, both parties must consent to the unlawful contract: the lender must demand and the borrower agree to give the unlawful interest. Price v. Campbell, 2 Call, 110; Smith et al. v. Beach, 3 Day's R. 268.

To constitute usury, there must be an intention to take more than legal interest. The mistake of a scrivener in inserting one sum for another will not charge a party with usury; but if a mode of calculation be adopted, which gives the creditor more than legal interest and he be conusant thereof, he is guilty of usury, though he may not suspect he is thereby violating the law. Childers v. Deane et al. 4 Rand. 406.

In respect to the intent which constitutes usury, I think it is the intentionally taking or receiving, under any circumstances, more than legal interest on the part of the lender or creditor, with or without the concurrence of the borrower; and that this intent is an inference of law, which may be made by the court from the facts submitted to it by a verdict, agreement of the parties, or demurrer to the pleadings. Pr. Green, J. in Whitworth et al. v. Adams, 5 Rand. 363.

To constitute usury, there must be a loan in contemplation by the parties. Nichols v. Fearson et al. 7 Peters, 103.

And usury or not, must be decided with reference to the time when the contract was entered into, uninfluenced by subsequent events. Pollard v. Baylors et al. 6 Munf. 438.

An agreement, subsequent to execution of a note to pay more than legal interest, in consideration of delay of payment, will not affect the note, though it may entitle the debtor to relief against the usurer's excess. Brown v. Toell's adm'r, 5 Rand. 543. And if a bond be given for the payment of money, with interest at six per cent., proof that the obligee has received interest on it at seven and a half per cent. will not avoid the bond, unless the jury are satisfied that it was agreed at or before the execution of the bond, that more than six per cent. should be paid. Fussil et al. v. Brookes et al. 2 Car. & Pay. Rep. 318; and see Merrills v. Law, 9 Cowen, 65.

A contract which in its inception is unaffected by usury, can never be invalidated

by any subsequent usurious transaction. Nichols v. Fearson et al. 7 Peters, 103.

A penalty inserted in a contract, from which the party may deliver himself, does not make such contract usurious; and the law is the same where it is in the power of the party, by a compliance with his contract, to convert the penalty into a compensation for services rendered him by the other party. Therefore, a creditor being a commission merchant, may legally connect with a contract by which he grants indulgence to his debtor, a stipulation, that he shall be allowed the usual commission, according to the course of trade, for selling tobacco, &c. to be shipped to him by such debtor in payment; and if it be agreed that such commission shall be allowed, in the event of the debtor's failing to ship the tobacco, such agreement is not usurious, for it is competent to the debtor to bind himself to ship it, and agree to pay the commission, as damages for failing to comply with that stipulation. Pollard v. Baylors et al. 6 Munf. 433; and see Cutler v. How, 8 Mass. R. 257. A debtor owing a debt presently due, agrees to give the creditor his bond for it, payable at a future day, and to add to the debt and insert in the bond a sum equal to five per cent. on the debt to cover commission, which the creditor might be compelled to pay an agent for collection, and the bond is given accordingly, for the aggregate, including the commission, with a verbal agreement, that if the debtor should pay the debt punctually, he should be exempted from payment of the sum inserted in the bond for commission for collection. In debt on the bond, and issue joined on the plea of usury: Held, parol evidence is admissible to prove the verbal agreement, as to the sum allowed for commission. The contract is not usurious, since the debtor might, by punctual payment of the debt, relieve himself from payment of the sum he contracted to pay for commission. That if the contract for commission for collection was made in good faith, and not as a device to evade the act against usury, bond, in point of law, was not usurious; and with such instruction, the question of fact should be submitted to the jury whether the contract for the commission was made in good faith, or was an evasion of the act. Campbell v. Shields, 6 Leigh, 517.

If a creditor take the joint bond of his debtor and another, in satisfaction of his debt, it cannot be avoided on the ground that it was founded on a usurious contract between the obligors; the obligee, not being privy thereto. Stone v. Ware et al. 6 Munf. 541; Ellis v. Warnes, Yelv. 47, Cro. Jac. 33.

A mere sale of property, as bonds, &c. although at an under value, is not usury; because price is a thing unfixed, and depends on the convenience of the parties contracting. But if the bargain proceeds from, and is connected with, a treaty for the

loan or forbearance of money, it is usury. Pendleton, J. in Gibson v. Fristoe, 1 Call, 81. A tacit understanding between borrower and lender, founded on a known practice of the borrower to lend money at legal interest; if the borrower purchased of him a horse, at an unreasonable price, is a shift to evade the act against usury. Douglass v. M'Chesney, 2 Rand. 109.

When a proposition is made for a loan of money, and the lender will consent to lend only a part of the money wanted, on condition that the borrower shall receive stock at a price much above the market value to make up the amount required, and the bargain is made upon these terms, such contract is usurious. Stribbling v. The Bank of the Valley, 5 Rand. 132; 7 Leigh, 26, 63. A profit made, or loss imposed, on the necessities of the borrower, whatever form, shape or disguise it may assume, where the treaty is for a loan, and the capital is to be returned at all events, has always been adjudged to be so much profit taken on a loan, and to be a violation of those laws which limit the lender to a specific rate of interest: accordingly, it was held, that a promissory note, discounted by the branch bank United States, at Lexington, reserving interest thereon at the rate of six per cent. per annum, it being agreed that the owner of the note should receive the proceeds of the discount in notes of the bank of Kentucky, at their nominal value, the same being, at the time of no greater value than fifty-four per cent. of said nominal value, was usurious and void. The Bank of the United States v. Owens et al. 2 Peters' R. S. C. 527; and see Clarkson's adm'r v. Garland et al. 1 Leigh, 147; Colton v. Duham et al. 2 Paige, 267.

A case of sale of bank stock at par on a credit, the cash value being twenty per cent. below par, under the circumstances, held not usurious. Selby v. Morgan, 3 Leigh, 577; and Greenhow's adm'x v. Harris, 6 Munf. 472; Steptoe's adm'rs v. Harvey's ex'rs, 7 Leigh, 501; Bank United States v. Wagner et al. 9 Peters, 403; State Bank of North Carolina v. Cowan et al. 8 Leigh, 238. A debtor owing a certain number of shares of bank stock, agrees with his creditor to pay him at a future day the market price of the stock at that day, or $150 per share, at the creditor's option, with the dividends: Held, a usurious contract. Smith v. Nicholas, &c. 8 Leigh, 330.

See Kenner v. Hord, 2 H. & M. 14; Hansbrough v. Baylor, 2 Munf. 36; Musgrove v. Gibbs, 1 Dall. 216; Wycoff v. Longhead, 2 Dall. 92; Lloyd v. Keach, 2 Connec. R. 175-196; Stuart v. Mech. & Far. Bank, 19 Johns. R. 496.

B. represents to A. that he had been desirous of purchasing C.'s land, but had not done so from inability to advance funds as speedily as C. required, and that he wishes A. to buy the land and let him have it; whereupon, it is agreed that A. will buy the

land as cheap as he can, and that B. will pay him 900 dollars for it. A. makes the purchase at the price of 750 dollars, and the land is conveyed to B. who gives his notes to A. for the 900 dollars: Held, the transaction between A. and B. is free from objection on the ground of usury. Long, ex'r, &c. v. Israel et al. 9 Leigh, 556.

On the subject of discounting negotiable notes, at a greater per cent. than six, in the form of a sale to a bona fide purchaser, see Taylor, adm'r of Holloway v. Bruce, 1 Gil. R. 42-98; Munn v. The Commission Co. 15 Johns. R. 54; Bennet v. Smith, 15 Johns. R. 355; Powell v. Waters, 17 Johns. R. 176; Whitworth & Yancey v. Adams, 5 Rand. 333. In these cases it was held, that a negotiable note, made and endorsed for the accommodation of the payee, and by him put into the hands of a broker to be sold in the market, and by the broker sold to a third person at a greater discount than legal interest, the purchaser having no knowledge of the character of the paper, or for whose benefit sold, is an available instrument in the vendee's hands, untainted by usury. See the cases; as the division of the court seems to have originated in a disagreement as to the facts, &c.; and Cram v. Hendricks, 7 Wend. 569-664, in error, in which this subject is elaborately discussed.

A promissory note, payable at a future day, given for a bona fide business transaction, and not for the purpose of raising money in the market, was sold by the payee, and by him endorsed for a sum so much less on its face, as exhibited a discount beyond the legal rate of interest, &c. no stipulation against the liability of the endorser: Held, not per se an usurious contract between endorser and endorsee; and that the endorsee can maintain an action on the note against the endorser. Nichols v. Fearson et al. 7 Peters's Rep. 103.

It 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, putting the matter directly in issue. Brown v. Toell's adm'r, 5 Rand. 543.

'Tis not usurious upon a settlement of accounts to take a bond or note for the balance due, including interest, and to receive interest on such bond or note. Ch. Taylor, in Brown v. Brent, 1 H. & M.3; Ord on Usury, 42, 3d ed.

See the policy of the statutes, limiting the rate of interest, vindicated, in an able opinion of Ch. Kent, in the case of Dunham v. Gould, 16 Johns. R. 373-380.

Ld. Ch. Brougham, remarking on the case of Carstairs v. Steine, 4 M. & S. 192, in Leith v. Irvine, 1 Mylne & Keene, 277, (March 30th, 1833,) said, "Sir Vicary Gibbs once observed, that he might persuade a Guildhall jury that certain facts, respecting

commissions, were felony, but assuredly not that they were usury." "Such are the unavoidable consequences of a law, (continued the Ld. Ch.) founded upon principles like those of the usury laws, or of any law being continued very long after it had ceased to be applicable to the circumstances and transactions of the community, which it was intended to regulate."

The plea of usury is a defence personal to the debtor; therefore, a purchaser of land, subject to a previous lien, cannot object that the lien is usurious, but is bound to discharge the lien as part of the price of the land. Spengler v. Snapp, 5 Leigh, 478. Where usury is relied on by a defendant in equity to defeat the plaintiff's whole claim, the facts constituting the usury must be distinctly alleged, and clearly proved, according to the allegation; but it is not necessary to allege them with the formal strictness of a plea of usury at law. Smith v. Nicholas, &c. 8 Leigh, 330, 352-5; and see Crenshaw's adm'r v. Clark et al. 5 Leigh, 69.

On promissory notes, payable on demand, interest is due only from the time of the demand. Brocket v. Archer, 6 Geo. 1, MS. 1 Selw. N. Pri. 287, ed. 1823, Wheaton. See Blaney, assignee, v. Hendricks, &c. 2 W. Blk. 761. "But it--(the note,) is made payable on demand; from the moment of demand, therefore, it would carry interest." Pr. Ld. Mansfield, in Jestons v. Brooke, Cowp. 796; Upton v. Ld. Ferrers, 5 Ves. 801; Cannon v. Boggs, 1 M'Cord, 370.

A due bill, payable on demand, bears in terest only from demand made, and not from the date, unless so expressed, although specified to be for a loan of money on the day of the date. Schmidt v. Limehouse, 2 Bailey, 276, S. Carol. On a promissory note, payable on demand, where there is no proof of any agreement for interest, the plaintiff is entitled to interest only from the day of issuing the writ of summons, though it was proved that the note was given for money advanced by the plaintiff. Pierce v.

Fothergill, (C. B. T. T. 1835,) 2 Bing. N. C. 167, 29 C. L. Rep. 296. A note, payable on demand, bears interest only from the time of demand. Breyfogle v. Beckley, 16 Serg. & Rawle, 264.

See Darnall's ex'rs v. Magruder, 1 Har. & Gill. 439.

But the practice in Virginia is favourable to the recovery of interest; and it was held, in an action on a penal bill, payable on demand, not necessary to aver a special demand. An obligation to pay money on demand being evidence of a present debt, payable instanter, and the writ a sufficient demand to entitle plaintiff to the penalty, and interest is allowed, not because of the forfeiture of the penalty, but because the debt was due and payable from the beginning. Payne v. Britton, 6 Rand. 101. See Carter v. Ring, 3 Camp. N. P. C. 459; and Gibbs et al. v. Southam, 5 B. & Ad. 911.

A note payable on demand with lawful interest carries interest from its date. Since without such words, interest would be due from the demand. See Kennerly v. Nash, 1 Stark. N. P. R. 452; Weston v. Tomlinson et al. Guildhall, Dec. 23d, 1821, Cor. Abbott, C. J., Chitty on Bills, 6 ed.

The stat. of lim. begins to run from the date of a note, payable "on," or "when demanded." Kingsbury v. Butler, 4 Vermont Rep. 458; Broff's adm'r v. Bull, 7 Har. & J. 14.

Where a promissory note was made payable two years after demand: Held, that the stat. of lim. did not begin to run until two years after demand had elapsed. Thorp v. Coombe, 8 Dow. & Ry. 347, 16 Eng. C. L. Rep. 344. The statute begins to run against a note payable on demand from the day of its date; but on a note payable on a given day after demand, it commences running only from the time of the demand. man v. The Mohawk Ins. Co. 13 Wend. 267. On a note payable with interest on demand, the stat. of lim. begins to run from the date of the note. Norton v. Ellam, 2 Meeson & Welsby, 461.

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*

*The institution of the county courts originated as early as 5th Mar. 1623, 1 Stat. Larg. 125, act 33, Feb. 1631-2, 1 Stat. Larg. 168; Mar. 1657-8, act 63, Ib. 462; and, as it is the most ancient, so it has ever been one of the most important of our institutions, not only in respect to the administration of justice, but for police and economy. They were first called monthly courts; and, at first, only two of them were established, and their jurisdiction jealously limited to the most petty controversies, reserving the right of appeal for the party cast to the governor and council, who were the judges of what were then called the quarter courts. In March 1642, act 56, 1 Stat. Larg. 273, the style of monthly courts was changed to that of county courts; the colonial assembly having previously be gun, and continuing thenceforward, to enlarge their duties, powers and jurisdiction, and to extend the system to every county, as it was laid off. As early as Nov. 1645, they had been matured into their present form, (though somewhat rude and irregu

lar,) of courts of general jurisdiction in law and equity; and the most important duties in matters of police and economy were confided to them. See 1 Stat. Larg. p. 125-7, 132, 145, 168, 185, 224, &c. In 1661, 2 Stat. Larg. 64, the governor and council were constituted itinerant justices, to sit in the county courts; but that provision was repealed the next year. Dec. 1662, 2 Stat. Larg. 179. Hitherto, the judges of the county courts had been styled commissioners of the monthly courts, and afterwards, commissioners of the county courts; but in March 1661, 2 Stat. Larg. 70, it was enacted, that they should take the oath of a justice of the peace, and be called justices of the peace. These tribunals now assume a perfectly regular form; and their functions have ever since been so important, that their institution may well be considered as a part of the constitution, both of the colonial and present government. No material change was introduced by the revolution in their jurisdiction, or general powers and du

ties of any kind. See acts of Oct. 1705, c. 19, 3 Stat. Larg. 302; 1710, c. 4, Ibid. 489; c. 11, Ib. 503; 1748, c. 7,5 Stat. Larg. 489, and Dec. 1792, c. 67, R. C. It would be impossible for any man to estimate the character and utility of this system, without actual experience of its operation. (Mr. Leigh's note.)

See an act concerning the making of elections, appointments and recommendations or nominations by the courts of record of this commonwealth, by which it is provided, "that in every election or appointment of any person to any public office, place or trust, which now is, or which shall hereafter be, authorized or required by law to be made by any of the courts of record, now, or which may hereafter be ordained and established within this commonwealth; and in every recommendation or nomination of any person to the executive of this commonwealth, to fill any public office, place or trust, which now is, or which shall hereafter be, authorized or required by law to be made by any of the said courts, the votes shall be given viva voce in open court; and in every such election, appointment or recommendation, the vote of each judge, justice, mayor, alderman, or other judicial member of the court, voting therein, shall be polled and recorded in the order or minute book, to the person for whom the same may be given. And in each case of recommendation or nomination, a copy of the final voting as polled, and of the proceedings of the court thereon, taken from the order or minute book, shall be transmitted with the order of recommendation to the executive." Act of Feb'y 10-1st March, 1831, Ses. Acts 1830-31, c. 19, p. 78, Sup. R. C. c. 122, p. 179. See also, ante, tit. ConSTITUTION OF VIRGINIA, art. 3, § 15, p. 27. (1) By act of February 2, 1826, Ses. Acts 1825-6, c. 17, p. 19, Sup. R. C. c. 115, p. 175, it is enacted, "that whenever the court of any county or corporation shall deem it proper to repair or rebuild the courthouse thereof, or whenever, from any other cause it shall be impracticable for the court to hold its sessions in such courthouse, it shall and may be lawful for every such court to select and appoint some other convenient and suitable place at or near the courthouse, within the same county or corporation at which the superior and inferior courts there

of shall be holden, until the repairs or rebuilding of the courthouse shall have been completed; or until it shall be practicable for the said courts to hold their sessions therein: Provided however, That it shall not be lawful for any county or corporation court to make any order for the removal and temporary sittings of such court, unless a majority of the acting justices of such court be present, or unless such court shall have signified its intention of transacting such business, at least one month previous thereto, and shall have caused the same to be entered of record, with directions to the sheriff or serjeant of such county or corporation, to summon the justices thereof, to attend at the next term for the purposes aforesaid. § 2. It shall be the duty of the clerk of every court which shall make any such order, to post a copy thereof at the courthouse door and at the door of his office, and the court shall cause such further notice to be given as shall, in its judgment, be necessary and proper. § 3. All suits, matters and things depending in the superior and inferior courts of the said county or corporation; and all process and recognizances which may have issued or been taken, returnable to, or for the appearance of any persons at the said courts, may be proceeded in, and shall be valid and obligatory for the appearance of such persons at the place so to be appointed for the temporary sittings of such court: and all suits, matters and things depending in the said courts while their sessions shall be held in the place so to be appointed therefor, and all process returnable thereto, and all recognizances for the appearance of any person thereat, may be proceeded in, and shall be valid and obligatory for the appearance of such persons, at the regular courthouse of the county or corporation when the said county or corporation court shall order their future sessions to be held therein."

* All courts held in Norfolk borough, for the trial of civil causes, may be composed of the mayor, recorder and one alderman, the mayor and two aldermen, the recorder and two aldermen, or any three aldermen, and shall be, and are hereby empowered to adjourn from day to day until all the business which is before them shall be dispatched. § 1, March 2, 1819.