1. J purchased of T a note, made under the statute of 1818, reserving interest at twenty per cent per month from the time when due, and his gave notes for it, both believing the high rate recoverable. The notes given by J are not void for usury, though they embrace a part of the high rate in their consideration, and though the high rate was determined afterwards not to be recoverable. Thompson v. Jones, 1 S. 556.

2. Semble, that for so much of the high rate of interest included in them, there was no consideration, it being penalty. Ibid. 3. To a note defendant pleads usury, and produces his evidence-the plaintiff may demur to the evidence in law. Ibid.

4. A constable having executions against B, agrees to satisfy them-C giving him his note for a certain sum, the note being for more than the amount of the executions and lawful interest, it is usury, though not called a loan. Wright v. Elliot, 1. S. 391.

5. It is not necessary to constitute usury that more than eight per cent. be stipulated, for it is sufficient if it be taken. Ibid.

6. A note made for the purpose of raising money for maker, and sold at a discount beyond the legal rate, is usurious, and the buyer though ignorant of the original taint cannot recover on it.

Faris & Powell v. King, 1 S. 420. 7. If not plead at law, no relief can be obtained in equity, when the party shows no excuse for failing to do so.

Teague v. Russell & Moore, 2 S. 420. 8. Note for a certain sum, payable at a future day, which may be discharged by the payment of a lesser sum at an earlier day, is not upon its face usurious, Jordan v. Lewis, 2 S. 426.

9. To a declaration, on a note, the plea was "that it was founded on a usurious consideration." The plaintiff replied, that "it was not usuriously agreed that more than legal interest should be secured"-replication is bad. Wright v. Minter, 2 S. 453.

10. A brought suit for the use of B, under the statute; C, the defendant, offered to prove by his own oath, that the note was made and given to A for a usurious consideration, and that it was made by the advice of B and with his knowledge to evade the usury law; B denied on oath, any usury so far as he was concerned, or any knowledge of the usury—it was held, that this was not a sufficient denial to prevent C from testifying.

Watkins v. Watkins, use of Perkins, 2 S. 485.

11. The statute of 1819, which provides that the borrower may establish his defence by his own oath in certain cases, does not extend to contracts made out of this State. Wilson v. Walker, 3 S. 211.

12. A note or bill made for the especial accommodation of an individual, to enable him to raise money by its discount, at a rate beyond the legal interest, is usurious in the hands of an innocent purchaser and the declaration of the person, for whose accommodation the paper is made, is not evidence. Metcalf v. Watkins, 1 P. 57.

13. A having executed a mortgage of slaves to B, enters into a bond, with C and D as his sureties, conditioned to be void if A surrenders the property mentioned therein to B, if equity should decree the same of right to belong to B, and that A further abides the decree of equity, on a foreclosure -such bond is valid, and not void on the ground of usury.

Barnes v. Peck, 1 P. 187.

14. Usury is complete when a direct loan of money is made, and more than the legal rate of interest is secured for the forbearance of payment, and it is of no consequence what disguise the contract assumes, when the capital is to be returned at all events: a profit made or loss imposed upon the necessities of the borrower, above the legal rate, constitute usury.

Ely v. McClung, 4 P. 128.

15. To make a contract usurious, there must exist an intention knowingly to commit usury; and this intention, where the contract is not upon its face usurious, is to be gathered from the situation and object of the parties, and all the circumstances connected with the loan.

Ibid.

16. When a note, payable in another State, not specifying any rate of interest, is taken on a contract of loan, which, after its maturity and after the insolvency and death of the borrower is extended by his sureties upon a new contract, under which a higher rate of interest is charged upon the note, after its maturity than is authorized by the laws of the State where the note was payable, it is usurious. Ibid. 17. Where one has a lien upon property, liable to waste, and stipulates with the debtor to have it insured, and takes the risk himself and receives the mium; this is not usurious if the transaction be bona fide.

pre

Driver v. Fortner, 5 P. 9.

18. A party seeking relief in chancery against a contract as usurious, under the statute 1805, must show that he had not adequate remedy at law.

Jones v. Watkins et al. 1 S. 81.
Tegue v. Russel et al. 2 S. 42.
Royster v. Watkins, 3 P. 436.
French v. Garner, 7 P. 549.

I. OF THE DEED AND BILL OF SALE; OF THE WARRANTY AND COVENANTS;

AND WHEN COVENANTS IN SUCH INSTRUMENTS ARE CONSIDERED MU-
TUAL.

II. OF THE LIEN OF VENDOR; OF THE ACTION UPON THE CONTRACT OF SALE
FOR THE PURCHASE MONEY; OF THE PLEADING AND EVIDENCE, AND
HEREIN OF THE DEFENCE WHICH MAY BE MADE BY VENDEE IN SUCH
ACTION.

III. OF THE RIGHTS OF VENDEE, AND OF THE ACTION BY HIM; AND IN WHAT CASES HE WILL BE CONSIDERED AS AFFECTED BY NOTICE.

IV. OF THE PRESUMPTION OF FRAUDULENT SALE, ARISING FROM THE CONTINUED POSSESSION OF VENDOR.

V. OF THE RELIEF IN CHANCERY, AND OF EQUITABLE TITLE.

1. Of the Deed and Bill of Sale; of the Warranty and Covenants; and when Covenants in such Instruments are considered Mutual.

1. A warranty expressed, is an exclusion of all others not expressed, and parol evidence is admissible to add to it.

Wren & Glover v. Wardlaw, A. R. 363. 2. In a bill of sale of a negro, the words "I warrant and defend" create a warranty of soundness as well as of title.

Duff v. Ivey, 3 S. 140.

3. When A, under covenant sold land to B for a sum certain, and B agreed to pay one-half on the 1st January thereafter; on or before which day A covenanted to give him possession, and when B payed the other half on the following January, A was then to make him title. These are mutual and independent covenants, and on a suit brought by A after the time when he was to make title had elapsed, to recover the purchase money of B, who is presumed to be in possession― —an averment in the declaration of A's ability and readiness to convey is surplusage.

Weaver, adm'r. v. Childress, 3 S. 361. 4. In ordinary sales of chattels, the law will imply a warranty of title though none be expressed in the contract, whether it be in writing or by parol. This State has not, however, adopted the rule, that a warranty of the quality of a chattle is implied by the soundness of the price.

Cozzins v. Whitaker, 3 S. & P. 322. 5. A warranty of the soundness of the person of a slave, includes a warranty of the soundness of mind.

Caldwell v. Wallace, 4 S. & P. 282.

6. Declaration may join a count on the warranty with a count in trover, for they are both in tort.

1bid.

II. Of the Lien of Vendor; of the Action upon the contract of sale for the Purchase Money; of the Pleading and Evidence, and herein of the Defence which may be made by Vendee in such Action.

7. Not a good bar to an action upon a bond given for purchase money of real estate, that plaintiff had given defendant a bond to transfer the register's certificate by a day certain, which he had failed to do, as there did not appear to have been a total failure of consideration.

Gilchrist v. Dandridge, A. R. 165. 8. Vendee of real estate cannot on suit upon his bond given for purchase money, under the plea of fraud, avoid its payment, if he has been put into possession, and retain possession. Christian v. Scott, A. R. 354. 9. Purchaser cannot resist the payment of the purchase money for defect of title, when he has taken possession and remains in the quiet enjoyment of the premises. Christian v. Scott, 1 S. 490. 10. If there be fraud in the sale, but the purchaser after ascertaining it, goes on to take, and retain possession, he cannot set up the fraud as a defence to an action for the purchase money.

Ibid.

11. To an action on a note given for land, it is a good defence that the administrator to whom the note was given, had not complied with the requisitions of the act for the sale of the real estate of an intestate by the county court; so that the title was wholly defective, for it was land, and not the possession, that was purchased, and this defence may be made without eviction, and under the general issue.

Wiley & Gayle v. White & Leslie, admr's. 2 S. 331.

12. When the purchaser of land receives from the vendor a covenant for possession, and for a deed of release and quit claim of all the vendor's interest, and such deed is tendered, a plea that the vendor had and still has no title to the premises, is no defence against an action on the agreement for the purchase money, no fraud being alledged. Garrow v. Hallett, 2 S. 449.

13. Parol evidence is insufficient to establish, in an action for the purchase money, a contract for the sale of lands. Howard v. Jackson, 2 S. 493.

14. Vendee gave his notes for the purchase money of a lot, the vendor executed a certificate of sale, by which he bound himself to make title when the notes were paid, and containing a stipulation, that in case of failure the lot should revert to the vendor-held that this was for the benefit of the vendor, and that the vendee could not take advantage of his omission, in paying the notes to rid himself of the contract.

Mundine v. Crenshaw, 3 S. 87.

15. The payment of part of the purchase money, is not sufficient to enable the vendor to recover at law the remainder of the purchase money; but when this is accompanied with possession, chancery could enforce a specific performance, and therefore assumpsit will lie for the balance of the purchase Meredith v. Nash, 3 S. 207.

money.

16. Vendee of personal property will not be permitted to defend against the consideration of the purchase money by a mere allegation that he has been deprived of the property by another, whose title is not shewn to have been superior to his own, and which title he would not defend, because the vendor's agent refused to execute a bond of indemnity.

Cargill v. Walker, 1 S. & P. 223. 17. When E and B had authorized a factor to purchase goods for them, according to a stated contract, they are liable, directly, to the vendor of the Edwards & Bonner v. Benham & Co., 2 S. & P. 147.

goods.

18. In an action on a promissory note, brought by the assignee thereof, which note was given for the purchase of a slave, with a warranty-held that unsoundness at the time of sale, amounting to entire failure of consideration, would entitle defendant to a verdict, and without proof of an offer to return it, appearing that the death of the slave eight days after purchase rendered it impracticable. Morehead v. Gayle, 2 S. & P. 224.

19. The purchaser of a diseased slave at a stipulated valuation, under an agreement that she was to be returned, and if she did not recover was not to be paid for-held that the period for recovery was limited to the maturity of the note given for her value, or at least to the expiration of such reasonable time as a jury might determine.

Tarver v. Richardson & Rice, 2 S. & P. 331, 20. And when in such case, several months after the sale, the slave was tendered to the vendor as incurable, but refused, and subsequently sold by the vendee for less than the price stipulated for in the event of recovery-held that the vendee did not thereby become liable for the original price, but that he had the right to sell for the benefit of the vendor.

1bid.

21. It is no defence to an action brought on a promissory note, that the title to the real estate for which the note was given is defective, and incumbered by a paramount title, no fraud being alledged; and it appearing that the vendee had enjoyed possession long before the alledged incumbrance ensued, and that there had been no judicial test of the title, and no eviction had. Wilson v. Jordan, 3 S. & P. 92.

22. If the failure of consideration on the sale of land or personal estate, be the result of fraudulent intention in the vendor, especially if it relate to the quantity or quality of the thing sold, such failure may constitute a legal defence. Ibid.

23. Generally, however, the injury or failure must have been sustained before the remedy is sought; but in cases of fraud, the rule, it seems, would be properly extended, so as to authorize redress whenever the injury could be sufficiently ascertained. Ibid.

24. As a general rule, when the possession of real estate is delivered to the vendee, he cannot, without eviction, resist the payment of the purchase money, or recover it back if paid, for the vendee is bound to ascertain the title sold, and may, if he chooses, protect himself by proper covenants.

Wiley & Gayle v. White & Leslie, 3 S. & P. 355. 25. But in case of sales made by executors or administrators, the rule is different, they act as trustees, and must pursue the authority strictly under which they act, or else such sales would be void, and the purchasers under them held liable to the heirs for mesne profits, and no recovery could be had against them for damages, because they acted in a fiduciary character, and therefore in these sales the vendee may resist a recovery without proof of 1bid.

eviction.

26. When a vendee of real estate executes a note for the purchase money, and receives a bond for title from the vendor with the possession, he cannot resist a recovery upon the note on the ground of the want of title in the vendor, no fraud being imputed, or rescission claimed, and no effort made to place the vendor in statu quo, by a return of the premises.

Wade v. Killough, 3 S. & P. 431.

27. Under a verbal sale of three distinct parcels of land, two of which are taken possession of by vendee, and a portion of the whole sum stipulated to be paid, received by vendor, a right of action does not accrue to recover the balance of such sum for the third parcel not taken possession of by the vendee, on the ground of its being an entire contract.

Meredith v. Naish, 4 S. & P. 59.