| W. Va. | Jan 15, 1871
The first ground of error assigned is that the court below had no power to direct such an issue, as was directed in this cause, because the answer of the defendant does not charge usury, and because if it does charge usury the cause does not come within section 10, chapter 141 of the code of Virginia; and further, that if it did fall within that section, it had been repealed at the time of the trial, by the Code of West Virginia. The averment in the bill is that Mrs. Lewis, wife of W. L. Lewis, “made application to him (the complainant) for a loan of money, and that he did make a loan of money to the said Mrs. Lewis * * * for the sum of 5,000 dollars, for the security of which she, with the said husband, then and there executed their obligation,” &c. The answer of Mrs. Lewis avers that “ the debt due the plaintiff was not a debt contracted for the loan of money, but for State stocks transferred by the plaintiff at their nominal value, when, in fact, their cash or actual value was much below the nominal value. The object of her husband-and herself was to raise money, and applied to the plaintiff for such a loan. He declined loaning money, but proffered to loan State stocks as money; and their necessities were such that they felt obliged to do it; but in doing so they made a great sacrifice.” * * * “ Their actual value did not exceed eighty (80) cents on the dollar at any time. Her husband sold two of the bonds of 1,000 dollars each at eighty cents on the dollar; the other three bonds of 1,000 dollars each were disposed of through the agency of General Echols at less than eighty cents on the: dollar; as she is informed and believes.” * * * “Respondent is advised that as the object of her husband and' herself was a loan of money, which they applied for from the plaintiff, and were compelled by their necessities to take depreciated stocks at their nominal value in lieu of money, the transaction will be held to be usurious and oppressive.”
These averments in the answer, taken in connection with-the charge in the bill do, in my judgment, make the de-fence of usury in substance, although not very formally.
If the case falls within section 10 of chapter 141, Code of Virginia, the repeal of that section would not effect the case, as-will appear hereafter.
The second cause of error assigned is, that at the time of-the trial and judgment the law concerning usury had been repealed; that is to say, there was no forfeiture except for excess of interest. It is true that by the Code of this State no forfeitures are imposed except for excess of interest over six per centum; but this applies to contracts made since the Code took effect, because the repealing chapter of the Code provides that the repeal of a law as it before stood, except where it is otherwise provided, shall not effect any act done or forfeiture incurred. As the contract in this case was made before the Code took effect, it is governed by the law in force at the time it was made, as to any forfeitures incurred. This is an answer to the third and fourth causes of error assigned as well as to the second.
The fifth, sixth and seventh causes of error assigned relate to instructions either given or refused. It seems to me, without assigning reasons in detail, that the rulings of the court below both in giving and in réfusing to give the instructions given or refused, were correct as applicable to the cause, except in giving the instruction in these words: “A loan of so many State bonds at par, which were under par at the time of the loan, was usury.”
To lend is to deliver to another for use, on condition that the thing loaned, or an equivalent of the kind, shall be returned. To lend State bonds would be to deliver them to another for use on condition that the bonds loaned or other bonds of the same kind, equal in quantity, should be returned, and would not be usury. To deliver so many State bonds to another for use, on condition that an equivalent in money at the par value of the bonds should be returned, would be to sell and not to loan the bonds, and as a naked
A great deal of stress has been laid upon the tenth assignment of error, founded on what is set up in bill of exceptions No. 5, as to what the court said to the jury. Whether what was said by the court to the jury was proper or not, does not arise in the cause, because it was withdrawn- and the jury instructed to disregard what had been said.
For the error committed by the court- in giving the instruction before referred to, I think the decree complained of should be reversed, with costs to the complainant, and the cause remanded for further proceedings.
Judgment reversed.