Woods v. Matchett , 47 Md. 390 ( 1877 )

Robinson, J.,

delivered the opinion of the Court.

•By the order of the Orphans’ Court of Baltimore City, all matters of'account between the appellant and the appellee were referred to the arbitrament of William Seemuller.

On the 19th of November, 1875, the arbitrator returned into said Court his award in writing, that the appellant is justly indebted to the appellee the sum of $2187.87.

Accompanying the award, and as exhibits thereto, were filed certain statements, showing the basis upon which this indebtedness was ascertained, and from which it appears that the arbitrator charged the appellant with interest at the rate of ten per cent, per annum, on two thousand dollars for twenty years and eleven months, and the same rate on three hundred and forty-three dollars, for nineteen years and eleven months.

Exceptions were filed against the confirmation of the award on the ground among others, that it appeared upon the face of the award itself, the arbitrator had charged the appellant with the payment of illegal interest; and this appeal is taken from the order of the Court overruling the exceptions and confirming the award.

It was urged in argument, that the appellant having failed to rely on the defence of usury before the arbitrator, it was too late now to object to the confirmation of the award on that ground. The Code provides, it is true, the mode and manner in which a defendant may plead usury, but its provisions do not in any manner deprive him of the then existing remedies for relief against the payment of illegal interest, even though he may have failed to avail himself of the plea. Art. 95, Code, secs. 4 aud 5.

It is well settled in this State that a Court of equity will grant relief against the payment of usurious interest, even after judgment, and further than this, that an action at law would lie prior to the Act of 1876, to recover excessive interest actually paid. Hitch vs. Fenby, 6 Md., 218 ; West vs. Beanes, 3 H. & J., 568; Goldsmith vs. Tilly, 1 H. & J., 361; Scott vs. Leary, 34 Md., 389; Bandel vs. Isaac, 13 Md., 202.

Such then being the law, there is no reason why a party may not except to the confirmation of an award on the ground of usury, even though no such defence was made before the arbitrator.

It was further contended that the agreement on the part of the appellant to pay ten per cent, interest on $2000, was not on account of the interest alone, but also in consideration of the stock and business of the husband of the appellee’s intestate, and to which the appellant succeeded.

But the award upon its face and the testimony of the arbitrator show that the ten per cent, was allowed as interest.

The Orphans’ Court has the power to remand the case to the arbitrator, and if the good will of Woods and Matchett formed part of the consideration, the appellee will have an opportunity to offer evidence on the subject.

(Decided December 20th, 1877.)

The order of the Orphans’ Court overruling the exceptions filed in this case and confirming the award must be reversed.

Order reversed, and case remanded.