Boswell &c. v. Jones.. Barnett &c. v. Watson. Braxton v. Morris. Clayborn v. Hill. Coleman v. Dick &c.. Carr v. Gooch...... Cole v. Clayborn. Cooke v. Beale's ex. Cosby ex. Loudon v. Hite.. Downman v. Downman's executors. Dade v. Alexander..... Daniel v. Robinson's ex. Doe lessee of Murra v. Northern. Evans v. Smith.... Eustace v. Gaskins ex. Eustace. Groves v. Graves Granberry's ex. v. Granberry, &c. Hooe & Harrison & others v. Oxley & Hubbard v. Blow and Barksdale. Keele and Roberts v. Herbert's ex'rs.... 138 Wroe v. Washington &c. 274 340 357 CASES DETERMINED COURT IN THE OF APPEALS, IN THE FALL TERM OF THE YEAR, 1790. Groves v. Graves. October Term, 1790. con Contracts-Usury-Penalty*-Case at Bar.-A. tracts to pay to B, 2601., current money, in final settlements, at the rate of 20s. such settlements, for each 13d. current money, on the 1st of December next. B agreeing, that the same may be discharged by the payment of a like sum, in said settlements, at any time on or before the 1st of November preceding, at the rate of 20s. such set tlements, for each twenty-six pence, current money. The contract is not usurious, but the thirteen pence is to be considered as a penalty and the time of delivery is, the 1st of November. Damages-Rule for Estimating+ Case at Bar.-The rule for estimating the damages in this case is. the value of the certificates at the time when they ought to have been delivered, and not that, when the cause was tried. On the 1st of October 1787, John Stockdell, and Francis Graves the appellee, made a writing to the appellant in the following words, viz, "for value received we promise to pay John Groves, or order, on the 1st day of December next, the sum of £260 current money, in Pierce's final settlements at the rate of twenty shillings, such settlements, for each thirteen pence current money, the said John Groves agrees that the same may be discharged by the payment of a like sum in the said final settlements, at any time on or before the 1st day of November next ensuing the date hereof, at the rate of twenty shillings, of such final settlements for each twenty six pence current money. On the 3d of October 1787, the appellant *Usury-Penalty.-Where the debtor, by a punctual payment of the debt, may thus relieve himself and avoid the payment of the illegal interest stipulated for, it is not usury. Ward v. Cornett, 91 Va. 681. 22 S. E. Rep. 494. Citing 2 Minor's Inst. (4th Ed.) 348; Pollard v. Baylors, 6 Munf. 433; Groves v. Graves, 1 Wash. 1. For the above proposition, the principal case is also cited in Winslow v. Dawson, 1 Wash. 119, 120; Bull v. Douglas, 4 Munf. 306. See also, Call v. Scott, 4 Call 402; Waller v. Long, 6 Munf. 71; Campbell v. Shields, 6 Leigh 517; monographic note on "Usury" appended to Coffman v. Miller, 26 Gratt. 698. +Contracts-Damages-Estimation of.-The principal case is cited in Reynolds v. Waller, 1 Wash. 165; Alexander v. Morris, 3 Call 102. See also, Lawrason v. Davenport, 2 Call 95; Merryman v. Criddle, 4 Munf. 542; monographic note on "Contracts" appended to Enders v. Board of Public Works, 1 Gratt. 364. received from Stockdell real security for the above debt, and gave him the following receipt, viz. "I acknowledge to have reIceived from Mr. John Stockdell an assignment of a tract of land containing 40,000 acres, Ballard Smith to said Stockdell. The condition of which assignment is, that if the said Stockdell shall pay unto me the sum of eight thousand dollars in Pierce's final settlements, on or before the first day of November next, then the said deed to be returned him, otherwise to be sold at public sale to the highest bidder, and the balance, if any, after purchasing the said settlements, to be returned to the said Stockdell." The Contract, of the 1st of October 1787, not being performed by Stockdell or Graves, the appellant instituted a suit at law 2 upon it against both of the contractors. *The breach assigned in the declaradeliver the final settlements equivalent to tion is, that the defendants did not the said sum of £260 at the rate of twenty shillings, such settlements, for each twenty six Pence current money contained in the said £260 on or before the 1st day of November, said final settlements, at the rate of 20 shil1787, whereby a right accrued to demand the lings of such settlements, for each thirteen Pence current money contained in the said sum of £260. and assessed his damages to £1200. The jury found a verdict for the plaintiff, The appellee filed his bill in the High Court of Chancery, praying an injunction to the judgment entered upon this verdict, that he might be relieved from so much of it as exceeded the sum of £260 with interest, and that the 40,000 acres of land might, in the first instance, be decreed to be sold to satisfy whatever sum the said Groves might be supposed entitled to. The equity stated in the bill is, that the plaintiff Graves was but a surety for Stockdell who was and is in needy circumstances, that the £260 was a mere loan to him from Groves, and that the payment of the final settlements, at thirteen pence in the pound, was intended either as a penalty, or for the purpose of procuring an usurious and unconscionable gain to the lender. An injunction 'till further order was granted. To this bill, the defendant John Groves filed his answer, denying that the £260 was loaned to the said Stockdell and stating that he agreed to purchase from the said Stockdell 8000 dollars in final settlement certificates, to be paid for immediately and to be delivered in future, and to guard 3 against any possible loss, which might arise | 1787, and the costs at common law, ought to From this decree Groves appealed. THE PRESIDENT delivered the following as the opinion and decree of the Court. The Contract between the parties ought to be taken as purporting the delivery of certificates on the 1st of November 1787, at twenty shillings, for every twenty six pence of the amount of the specie advanced, and, the payment in certificates at half the value in case of failure, only as a penalty; and, therefore, the contract was neither usurious, or so unconscionable as to be set aside in a Court of Equity, twenty sixpence being only the lowest rate of the market price of such certificates at the time. The verdict of the jury was not only wrong, as being for the penalty, but in the measure of damages, taking for that measure the value of certificates at the time of the trial when, under the peculiar circumstances of this case, the value at the time they should have been delivered, ought to be the rule. The decree, therefore, must be reversed with costs, and an issue, ought to be made up, and tried by a jury between the parties, to ascertain what was the current market value of such certificates in specie, on the 1st day of November 1787, and so much specie as the £260 turned into certificates at 26 pence, and again changed into specie at the rate so to be settled by the jury, will amount to, with interest from the 1st of November Johnson v. Macon. October Term, 1790. Escapes Gist of Action-Proot.*-In an action for an *Escapes. The principal case is cited in Hooe v. Tebbs, 1 Munf. 506, 509; Stone v. Wilson, 10 Gratt. 540, 545. See Johnston v. Macon, 4 Call 367, and note. New Trial-Motion for-To What Court Made.-In Newberry v. Williams, 89 Va. 299, 15 S. E. Rep. 865, it is said, in Johnson v. Macon, 1 Wash. 4, PENDLETON, P., expressed the opinion that a motion for a new trial, on the ground of misdirection, is never made to the trial court, but always to a higher court; and that it was certainly irregular and improper to make the motion to the same judge who gave the direction. This view, however, was disapproved in Guerrant v. Tinder, Gilm. 36, as being altogether too narrow. The power of the trial court to grant a new trial is now, and since the year 1850 has been, settled in Virginia by statute. Va. Code 1887, § 3392. And, before the decision in Guerrant v. Tinder, JUDGE PENDLETON himself seems to have abandoned the position taken in Johnson v. Macon, in his opinion in Power v. Finnie, 4 Call 411. The principal case is cited also in Bridgewater v. Allemong, 93 Va. 544, 25 S. E. Rep. 595; Bank v. Waddill, 31 Gratt. 478; Danks v. Rodeheaver. 26 W. Va. 290. See monographic note on "New Trials." 1 escape be shown, and that fresh pursuit was | sary to decide this point, since that part of the made. This was an action on the case, brought by the appellant in the District Court of Richmond, against the appellee formerly sheriff of Hanover county, for the escape of Parke Smith committed at the suit of the appellant, upon a writ returned "executed and committed to jail" by William Bentley deputy sheriff. The declaration sets forth the writ, service and return, that Macon kept an insufficient gaol; that he voluntarily and negligently suffered Smith to escape, and failed to take out an escape warrant against him, and to make fresh pursuit, by which the plaintiff had lost his debt, &c. 5 Upon not guilty pleaded, the jury found a verdict for the defendant, and on the next day the plaintiff moved for a new trial, upon the ground of a misdirection of the court, (at the trial,) who instructed the jury to find for the defendant, but the motion was overruled, the court being of opinion, that *it was incumbent on the plaintiff to prove an actual escape by Smith from the custody, and by the consent or negligence of the defendant or his deputy, whereas the only evidence given by the plaintiff at the trial was the record of the suit against Smith, up to the judgment, and the oath of William Anderson the present high sheriff, that the said Smith was not at any time turned over to his custody by assignment from any former sheriff, together with the admission of the defendant, that when Smith was arrested, he the defendant was high sheriff of the county, and that Smith some years after resided in Charleston. To the opinion of the court, over-ruling the motion for the reasons above mentioned, the plaintiff excepted, and tendered a bill, which though not appearing to have been sealed, is made part of the record. opinion which was clearly right, will justify being no proof of an actual escape. the subsequent direction to the jury, there 6 actual sheriff when Smith was arrested, and that The parole proof is, that Macon was high Smith resided in Charleston some years after, which is certainly no proof of an escape from the defendant or his deputy. The record proves him to have been in custody in June 1778, when Macon could not have been sheriff, as he was so *at the time of the arrest in January 1775, more than two years before. But Anderson swears, that Smith was not turned over to his custody by assignment from any former sheriff. Let it in the first place be remarked, that Anderson was a very improper witness which in England are fixed upon the sheriff to exculpate himself.-But 2dly, Escapes from legal deductions, seem to be done away in this country, by the act of Assembly, which subjects the sheriff, only where the jury expressly find that the debtor escaped with the consent, or through the negligence of the officer. This a jury would hardly find, when it appeared that the debtor was in the actual custody of a succeeding sheriff, altho' the formality of an assignment had been omitted. Besides, tho' no assignment were made, yet the other mode of transferring prisoners by entry on record might have been observed. Judgment affirmed. APRIL TERM, 1791. Smith v. Harmanson. April Term, 1791. Effect. In an action Appeals - Beneficial Error — upon a bond, with a penalty, for the payment of money, the jury may make their verdict of the aggregate of principal and interest, and the defendant cannot appeal for that cause, since the mode of finding the verdict is for his benefit. Judgment for the defendant and appeal. The PRESIDENT delivered the opinion of the court. A motion for a new trial upon This was an action of debt brought upon the ground of misdirection of the judge at a bond in the county court of Accomack by nisi prius is never make to the same judge, the appellant. Plea owe nothing, with leave but to the court of Kings Bench. To make to give the special matter in evidence; the motion to the same judge who gave but oyer is not prayed. Verdict "that the direction is certainly irregular, and the defendant doth owe to the plaintiff improper. The exception ought to have £1147 18 4 parcel of the debt in the bill been stated to the direction itself. But as the exception states the direction of the judge, and the ground of it, so as to enable this court to decide upon the propriety of the opinion, we shall pass over the form, and enquire into the grounds of that direction. The opinion is in part right, since the actual escape, is the gist of the action and therefore ought to have been proved, and in part wrong, so far as it required the appellant to prove the escape to have been with the consent or through the negligence of the sheriff, since the consent or negligence, tho' made necessary by the act of Assembly, ought to be presumed, unless on the sheriffs parts a tortious escape be shewn, and that fresh pursuit was made. But it is unneces aforesaid mentioned." Judgment is entered that the plaintiff recover against the defendant £2000 the debt in the declaration mentioned and his costs, to be *Appeals-Beneficial Error-Effect.-It is contrary to the uniform decisions in this court to permit a party to object to an error which is for his own benefit, and has arisen from his own act. Kirtley v. Deck, 3 H. & M. 393. Citing Hammitt v. Bullett, 1 Call 567; Smith v. Harmanson, 1 Wash. 6. For the above proposition the principal case is cited and approved in Preston v. Harvey, 2 H. & M. 66; Stegar v. Eggleston, 5 Call 457: foot-note to Hammitt v. Bullett, 1 Call 567. See also. Pendleton Wash. 381; Eib v. Pindall, 5 Leigh 109; monographic note on "Appeal and Error" appended to Hill v. Salem and Pepper's Ferry Turnpike Co., 1 Rob. 263. V. Vandevier, 1 |