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Charles Scott, Bailiff of William S. Moore, Plaintiff in Error v. John Lloyd 418 (1835)

handle is hein.slavery/ussccases0112 and id is 1 raw text is: 418 SUPREME COURT CHARLES SCOTT, BAILIFF OF WILLIA31 S. M OORE, PLAINTIFF IN ERROR V JOHN LLOYD. Scholfield applied to Moore to raise or borrow 5000 dollars, securing him on an annuity, or ground rent, on sufficient real estate, for one year. Moore proposed to let him have the money for ten years on the same security. After much discussion the parties agreed to divide the difference, and that S. should keep the money for five years. A deed for sufficient real pro- perty in Alexandria, in the District of Columbia, securing the annuity, was executed by S. , and the annuity or ground rent was paid for some years. Scholfield, after the execution of the deed, securing the annuity to Moore, sold and conveyed the estate, subject to the annuity or rent charge, to Lloyd, and subsequent to the conveyance, he gave notice to Lloyd, not to pay the rents to Moore, on the allegation that there were fraud and usury in the transaction, and that the grant of the annuity was therefore void. At the time this notice was given, Scholfield agreed in writing to indemnify and save Lloyd from loss, if a distress should be made for the rent; and he would resist the same by a writ of replevin. This was done by Lloyd. Lloyd and others, as creditors of Scholfield, became afterwards possessed in absolute property, by releases from and agreements with Scholfield, of all his, Scholfield's interest in the reversion of the estate on which the rent was secured, or any benefit or advantage from the suit, and was discharged by the insolvent law of Virginia; but no release of Scholfield by Lloyd, from his responsibility to save him harmless, for the resistance of the distress and the action of replevin, was executed. On the trial of the action of replevin in the circuit court, Scholfield was examined as a witness in favour of Lloyd, to show that the original contract between him and Moore was usu- rious. Held, that he was an interested, and incompetent witness. The statute against usury not only forbids the direct taking more than six per centum per annum for the loan or forbearance of any sum of money; hut it forbids any shift or device by which this prohibition may be evaded, and a greater interest be in fact secured. If a larger sum than six per cent be not expressly reserved, the instrument will not of itself expose the usury, but the real corruptness of the contract must be shown by extrinsic circum- stances, which prove its character. The court was requested to say to the jury, that the facts given in evidence in the trial of the case did not import such a lending as would support the de- fence of usury. By the Court. The court was asked to usurp the province of the jury, and to decide on the sufficiency of the testimony, in violation of the well established principle, that the law is referred to the court, the fact to the jury. The statute declares, that no person shall on any contract take, directly or indirectly, for loan of any money, &c., above the value of six dollars, for the forbearance of 100 dollars, for a year. It has been settled, that to consti- tute the offence there must be a loan, upon which more than six per cent interest is to be received, and it has been also settled, that where the con-

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