Cases Decided in the Supreme Court of Appeals of Virginia Volume 92 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1896 edition. Excerpt: ...11 Leigh 113; Spengler v. Snapp, 5 Leigh 478; Clarkaon v. Garland, 1 Leigh 147; Norvell v. Hederick, 21 W. Va. 523; Bell v. Calhoun, 8 Gratt. 22; and Code of Virginia, section 2823. In support of the rule that money paid upon an illegal contract cannot be recovered back, subject to the exception just stated, numerous authorities may be cited. See Benj. on Sales, page 962, where it is said: A creditor may apply a payment to an illegal debt, but, if no application be made by either, where there are two debts, one legal and the other illegal, the law will apply the payment to the legal debt. The right of the creditor to make application of a payment to an illegal debt, though affirmed by such high authority, may well be doubted, and we incline to think that the correct rule is stated in the note to Benj. on Sales, p. 962, that while the creditor has no right to apply a payment to usurious interest, or an otherwise illegal demand, the debtor has the right to do so, and, if he makes the application or assents to it, he is bound by it. See Emmons v. Haywood, 11 Cush. 44; Phillips v. Moses, 65 Maine 70-73; Pickett v. Merchants Bank, 32 Ark. 346; Cobb v. Morgan, 83 N. C. 211; Feldman v. Gamble, 26 N. J. Eq. 494. See also Ewell v. Daggs, 108 U. S. 143, where Mr. Justice Mathews states the distinction between acts mala prohibita and acts male in se, and says that, while a contract for usury is illegal, the advance of money upon it constitutes a meritorious consideration which would support a subsequent liability or promise. Vor.. xorr--58 Opinion. See also Walsh v. Mayer, 111 U. S. 36. In that case the Circuit Court held that the whole of the interest paid being void by the Louisiana statute, a court of equity would impute its...