The opinion of the court was pronounced by

The bill states that, on the 7th of April, 1858, the defendant gave a mortgage on his property for the amount of $7500, payable in two years with interest, which mortgage came afterwards, by divers assignments, to the complainant; that the mortgage was recorded on the 11th May, 1859; that, on the 9th February, 1859, Brown and Goodwin sued out of the Supreme Court of this state a foreign attachment against said Kille, upon which judgment was entered, on the 16th April, 1860, for $6542.

Kille answers that, before the execution and delivery of said mortgage, he had borrowed and received from Steele & Co., the original mortgagees, divers sums of money, upon and by reason of an agreement to pay them usurious interest, which sums, with the usurious interest thereon at the time of the delivery of the mortgage, amount to the sum of $3900 ; that on the 27th March, 1858, Steele & Co. corruptly agreed *477with him, Kille, to deliver to him circulating notes of the Bank of Pennsylvania to the nominal amount of $4500, and that he should give’ to Steéle & Go. the bond and mortgage in question for a sum sufficiently large to cover not only the said sum of $3900 but also 80 per cent, of the nominal value of said circulating notes, well knowing that said notes were worth only from forty-seven to forty-nine cents on the dollar, and that he did receive the said notes, amounting, at eighty cents on the dollar, to the amount of $3600, which with the $3900 makes the sum of $7500, the amount of said mortgage. Neither the bill or answer avers the place of conti act.

The bond and mortgage are good by universal law, and therefore the bill is good without any averment of place. Usury is matter of local law, and therefore the averment of usury in the answer necessarily intends that the facts stated constitute usury under the local laws of this state.

But the proof shows that this contract was executed in Pennsylvania. The contract could not therefore have been usurious under the laws of this state, and the answer is consequently entirely unsupported by the evidence.

But it is said that the facts stated show usury under the laws of .Pennsylvania. But this can constitute no defence, for two reasons: first, because it is not averred in the answer that such facts constitute usury under the laws of Pennsylvania ; and secondly, if such allegation had been made, it is entirely unsupported by any evidencex We do not know officially what the laws of every nation of the earth are respecting usury; we know they vary more or less in almost every government, and when it is necessary to manifest what such local laws are in our courts, it should appear by averment and proof.

The same answer may be given to the suggestion, that by the laws of Pennsylvania the mortgagee can only recover the sum actually advanced upon the mortgage, there is no averment of such law, and if there was, there is no such proof.

Nor could it be proper in this stage of the case to reverse *478the decree, in order to send it back to Chancery to enable the defendant to amend his pleadings and adduce his proof.

The custom of Chancery is not to allow a defendant, who has permitted his time to answer to pass by, additional time to answer in order to set up usury, much less will it do so when the cause has regularly progressed upon pleadings and proofs to a final hearing.

As to the question of priority between the attaching creditor and the complainant, the statute, Nix. Dig. 124, § 18, by its very terms, makes the mortgage not recorded according to its provisions void only as against subsequent judgment creditors or bona fide purchasers or mortgagees for valuable consideration not having notice thereof, but does not make it so as against creditors in attachment.

By the act, Nix. Dig. 33, § 7 and 8, the attachment only binds the property and estate of the defendant in attachment, and cannot affect the estate of other persons therein acquired previous to the issuing of the attachment.

I think the decree should' be affirmed.

The decree of the Chancellor was affirmed by the following vote:

For affirmance—Judges Brown, Combs, Cornelison, Elmer, Haines, Ogden, Swain, Vredenburgh, Whelpley, Wood—10.

For reversal—Judge Kennedy—1.