Fox v. Taliaferro

4 Munf. 243, 18 Va. 243, 1814 Va. LEXIS 35

• Court: Supreme Court of Virginia
• Decided: March 26, 1814
• Status: Published

Opinions

Judge Roane

prohounced the court’s opinion.

The court, considering that, although the bond, on which the judgment and forthcoming bond injoined in this case were founded, was, in its origin, free from objection, yet, an usurious contract of forbearance of the money due thereby havin g been engrafted thereupon, it was competent for the appellee, coming to be relieved as to the usurious interest, to obtain such relief, as against Thomas B. Fox, the original party to the contract, either by cancelling the bond given for the said usurious interest, or giving him credit for the amount of the same against the bond intended to secure the principal ; and that this right was not lost to the appellee by the assignment of either of the said bonds ; is of opinion, that the decree in this case, dissolving the injunction, and dismissing the bill as to Henry Fox, instead of giving the credit, or making the deduction aforesaid, is erroneous ; inasmuch as, by merely decreeing a payment by the appellant Thomas B. Fox of 69/. (the sum forming the usurious interest,) with interest thereon from the 1st of July, 1805, to the appellee, the risque of Thomas B. Fox’s insolvency is unjustly thrown upon him. That decree is therefore reversed with costs; and this court proceeding, &c. is of opinion, and accordingly decrees, that the said injunction shall be re-instated as to the said sum of 69/. with interest thereupon from the 1st of July, 1805 : — -provided that, whensoever the said Thomas B. Fox shall deliver to the appellee his bond, given for the said sum, and assigned to Benjamin Dabney, or produce to him a satisfactory acquittance for the money due thereby, executed by those having the right to the same, the said injunction as now decreed to be re-instated shall stand dissolved. But in the event that the said appellant Thomas B. Fox, shall not produce and deliver up such note or acquittance, within a reasonable time, to be prescribed by the Superior Court of Chancery, (as, in that case, he would throw upon Henry Fox the loss of a sum for which he has paid a valuable consideration,) this court further decrees that, in that case, the said Thomas B. Fox shall be decreed to pay to the said Henr§ Fox the said sum of 69/. with interest as aforesaid ; saving to the said Henry Fox his remedy against Samuel Stubbs, from whom he received the bond aforesaid by assignment.

And whereas, in consequence of the dissolution of the injunction in this case, by the Superior Court of Chancery, the money now in controversy may have been coerced from the appellee by Henry Fox ,- in which case the injunction hereby awarded would be wholly inadequate to prócure for the appellee an indemnity against the said bond assigned to Benjamin Dabney as aforesaid ; it is hereby further decreed and ordered, that, in the event last supposed, and in the further event of a failure on the part of Thomas B. Fox to produce the bond or acquittance as.aforesaid, that, then and in that case, the appeílee shall be substituted for the said Henry Fox as to the decree against Thomas B. Fox for the 69/. with interest as aforesaid, in that case herein before provided for and in favour of the said' Henry Fox : — And the cause is remanded to the Superior Court of Chancery, to be finally proceeded in pursuant to the principles now declared.