JANUARY 1830. Plummer V. McKean & year, before the third quarter became due, the mortgagee would abate a half per cent. The interest not having been thus promptly paid, the question was, whether four or four and a half per cent was due? The four and a half per cent was allowed by the Chancellor. In that case, however, the difference of the premiums was only a half per cent. and both within the legal rate of interest; and the less sum was agreed to be taken as a discharge, only on condition that the same was paid earlier than the maturity of the higher rate. I consider it a general and almost invariable rule, that the least sum, which by the terms of the contract will discharge a debt on the day appointed for payment, is to be regarded as the true debt. Suppose the $1,600 in this case to have been the true debt, and that the defence had been usury; doubtless the defence must have prevailed, unless defeated by the stipulation that payment of the amount of the true debt should be received as a satisfaction. I conceive that this would have been the correct legal view of the subject, and that in any form in which the question can be presented, the additional sum of four hundred dollars ought to be treated as nomine pœnæ. I therefore dissent from the opinion of the majority. Reversed and remanded. JORDAN V. LEWIS. 1. A note for a sum certain, payable at a future day, which may be discharged by the payment of a lesser sum at an carlier day, is valid, and the larger sum is not penalty. 2. Nor is such note upon its face usurious. THIS was an appeal from the decision of a justice of the peace of Pickens county, in a suit in which Moses Lewis was plaintiff, and W. Jordan, defendant. The action was on a note, as follows: Springfield, July 30, 1825. On or before the 25th December, 1829, I promise to pay Moses Lewis, or bearer, forty-one dollars and twenty-five cents, for value received. If paid October 1st, thirty-three dollars is to satisfy this note. WILLIAM JORDAN." Judgment by default was given for the plaintiff at the JANUARY 1830 April term, 1828, of Pickens Circuit Court, for $42 25, and interest, &c. Jordan, in this Court, assigns for error, that the judg ment should have been for $33 only, and interest, and that all over that amount was penalty and not recoverable. ROSE, for the plaintiff in error, cited the case of Henry & Winston v. Thompson, Minor's Alabama Reports, 209, and submitted the cause. R. K. ANDERSON, for the defendant. Jordan V. Lewis. a Minor's Ala b Minor's Ala. Rep. 126. clb. page 170. By JUDGE CRENSHAW. In support of the assignment of error, the case of Henry & Winston v. Thompson, is relied on inh te brief. The several cases of a kindred class, decided at the same time with the one cited, Rep. 209. were on four several descriptions of notes; 1st. To pay the principal at a future day, and if not punctually paid, then to pay interest at the rate expressed; 2d. To pay the principal at a future day, with interest at the rate expressed from the date; 3d. To pay the principal at a future day, with the interest expressed, without stating the time from which or to which it was to run; 4th. To pay the principal at a future day, with interest from the maturity of the note. Also in the cases of Dinsmoor v. Hand, and of Fugua, & Hewit v. Carriel & Martin, the contracts were for the payment of money at a future day, and if not punetually paid, to bear interest from the date. But the note in the case under consideration, does not fall within any of these descriptions, and consequently is not settled by the principle of decision recognized in those cases. To pay a sum of money at a day certain, but which may be dis charged by the payment of a less sum at a previous day, has no similitude to any of the cases enumerated. The case at bar, then, is clearly distinguishable from all these cases. The substance of the contract is to pay $41 25 cents, at a future day, but if paid nearly three months be fore the day, the payee will accept of $33 in lieu of his debt. This was a benefit to both parties, and therefore not penalty; a benefit to the payee to receive his money before it was due, and a benefit to the payor in discharging the debt by the payment of a less sum. It has been determined in this Court by many adjudications, and is now conceded, that where, by the terms of the Jord an V. JANUARY 1830. contract, the payment of a less sum is intended to be secured by the payment of a greater sum, the less sum will be considered as the debt, and the greater as penalty; but this is on the supposition, that both are payable at the same time, or at least that the less is not payable before the greater becomes due. Lewis. For the same reasons that we cannot infer, from the face of the contract, that the $41 25 is not penalty, we also infer that it is not usury. Usury is a corrupt agreement to receive more than 8 per cent. for the loan or forbearance for one year; but in the present case, the agreement is not to receive more, but less than the legal rate of interest, if the debt be paid a considerable time before it becomes due. For these reasons, a majority of the Court are for affirming the judgment of the Circuit Court. By JUDGE SAFFOLD. I am constrained to dissent from the opinion of a majority of the Court, as expressed in this case; Most of the reasons I gave in my dissenting opinion, filed in the case of Plummer v. McKean & McKean, during the present term, are the same by which I Ante p. 423. am now governed.a The contract was to pay a certain sum on a given day, which might be discharged by the payment of about four fifths of the amount a few months earlier. The interest that could accrue between the different periods appointed for the payment on either sum, could not exceed one eighth of the difference in amount. The principle sustained by a majority is, that immediately on the failure to pay the less sum on the earliest day, the larger sum became the true debt, and was absolutely recoverable after the last day appointed for the payment. The obligation for the greater sum was evidently a penal stipulation, to secure the earlier payment of the less sum. If the recovery is sustainable for the larger amount in this case, the same principle would sanction the recovery of any sum under a contract, to pay so much twelve months after date, which might be discharged by half the sum in six months. I conceive it utterly impossible to distinguish the cases, either in principle, or on authority; and that the doctrine of this decision entirely removes all re straint against the collection of penalties or usury. Judgment affirmed, JUDGES TAYLOR and PERRY also dissenting. JANUARY 1830. ROCHON V. LECATT. 1. An agreement made before marriage between husband and wife, by which the husband relinquishes all right to the property of the wife, and agreed she should retain it to her own separate use, does not, in equity, bar the husband's right of curtesy. 2. Nor does a decree of divorce a mensa et thoro, pronounced against him, bar such right. 3. Nor an injunction granted in the lifetime of the wife, on her prayer, prohibiting the husband from intermeddling with her property. 4. The rule of construction on such an agreement is the same in equity as at law. IN August, 1828, Nannette Rochon filed a bill in Chancery in the Mobile Circuit Court, against Littleton Lecatt, praying relief against a judgment at law which Lecatt had obtained against her, and in which he had recovered possession of a lot of ground in Mobile, and damages. She charged in her bill, that in 1818, Mrs Anne Lecatt sold and conveyed the lot to one J. Champenois; that Champenois conveyed to one Dameron; he to McLoskey, and McLoskey to her; that Mrs Lecatt was formerly the widow of one Thomas Surtill, and that in 1813, she intermarried with L. Lecatt; that previously to her marriage, she and Mr Lecatt entered into and executed a marriage contract, which is in these words:" "Articles of agreement indented, made, &c. between Littleton Lecatt, sailing master in the United States' Navy, of the one part, and Anne Surtill, widow of the late Thomas Surtill, of the other part, as follows: whereas a marriage is shortly intended to be had and solemnised between the said Lecatt and Anne Surtill. It is therefore covenanted and agreed by and between the said parties to these presents, in manner and form following, that is to say that the said Littleton Lecatt, by these presents, renounces all claim, right, title, or interest, to any part or parts of the estate of the late Thomas Surtill, in right of the said Anne Surtill, his intended wife; she to retain the said property of what nature soever, for her own use and benefit. In witness whereof, we have hereunto set our hands and seals, in the presence of subscribing witnesses, at the town of Mobile, Mobile county, Mississippi Territory, this 19th July, 1813. (Signed) "LITTLETON LECATT, [L. s.] "Attested by C. S. Stewart and W. R. Dodge, as wit nesses, and Zeno Orso, Notary Public." JANUARY 1830, Rochon V. Lecatt. The bill further charges, that after the marriage, the parties lived a short time together unharmoniously, and that in February, 1814, in consequence of domestic differences between them, they mutually filed bills in Chancery against each other in the Superior Court of Mobile county. Mrs Lecatt prayed for a separation from bed and board, and an injunction to restrain the husband from meddling or interfering with the property intended to be secured by the agreement; and Mr Lecatt, in his bill, prayed that the agreement might be cancelled, and that his wife should be injoined from managing or intermeddling with the property. In June, 1814, a decision was made in said causes by Judge Toulmin, then presiding, who decreed a divorce from bed and board between the parties, and a perpetual injunction against Littleton Lecatt; and dismissed the bill filed by him, and dissolved the injunction which had been obtained by him against his wife. It is further alleged, that Littleton Lecatt, in obedience to the decree, ceased to intermeddle with the estate, and separated himself from his wife Anne, and left the State, but returned after the death of his wife, and though he never in her lifetime, after the decree, set up any claim to her property, yet that he has, notwithstanding the marriage contract, claimed the right of curtesy in her lands, and under that claim, recovered against the complainant, by a judg ment at common law, the lot and $612 damages; that she, and she believes also those under whom she claimed, were entirely ignorant of any such right existing in him. All which proceedings, she alleges are contrary to equity, &c. wherefore she prays an injunction to restrain the defendant from enforcing his recovery at law against her. The defendant, Lecatt, filed his answer, not controverting any of the facts, but resting his right on the construction given to the contract in the Court of law, and which was sustained in the Supreme Court, as being no bar to his right of curtesy. According to an agreement between the parties, the facts of the bill stood as admitted; and at October term, 1828, a decree was rendered in the Circuit Court by consent, pro forma, dismissing the complainant's bill; from which she took an appeal to this Court, and now here assigns that decree as error. ACRE, for the appellant. To sustain our right to relief on our bill, we rely on three propositions, which we be lieve are sustainable: |