Imagens das páginas
PDF
ePub

disguise is, in fact, a cover for usury, or a lawful agreement, that the law will sustain and enforce. For if the entire agreement will admit of a twofold construction, one legal and the other illegal, the court will adopt the legal construction.

A plea of usury, therefore, should, on its face, either present such facts with certainty to every intent, as in themselves distinctly amount to an agreement to receive more than the value of legal interest, or it must state the facts with such necessary averments of intent to evade the statute, as that a jury upon the trial might decide that the agreement was in substance a contract for usurious interest, and a shift to evade the operation of the law. Per Brockenbrough, Justice.

We have thus far spoken of the plea as a defence, but neither the borrower or his legal privities are obliged to await the attack of the lender, but may invoke the law in the first instance for relief from any usurious security.

[ocr errors]

Trover may be maintained against an usurious bailee, after demand and refusal, without offering or tendering the principal sum, or any part thereof, as the action is strictly legal and the deposit void. 2 Adolphus & Ellis, 12. 4 Barnwell & Alderson, 92. 7 Bingham, 97. 16 Wendell, 574.

Replevin may be maintained by a tenant of the mortgagor for a pretended distress, where the title of the party distraining is made through an usurious mortgage or other instrument. Loyd v. Scott, 4 Peters, 205. And also for goods, notes, or other things transferred usuriously generally, after demand and refusal, without tender or offer to pay the principal money or thing loaned. 20 Wendell, 234, Boughton v. Bruce. And even after a statutory foreclosure and purchase of the mortgaged premises by the mortgagee or other person having knowledge of the usury, a subsequent purchaser of the mortgagor may maintain ejectment against the possessor under the usurious title. Jackson v. Dominick, 14 Johnson, 435. But if the purchaser be a stranger to the usury, his title becomes perfect under such statutory foreclosure, as against any subsequent claimant under the borrower. Jackson ex dem. Babbitt, v. Henry, 10 Johnson, 185.

But assumpsit is an equitable action, and the borrower in that can recover back only the excess paid over principal and legal interest, and this independent of the act against usury; but if the popular action given by the statute be proceeded in by a stranger, the right of the borrower to recover is gone. And if such popular action given by the statute is not proceeded in by a stranger, the borrower's right to

recover back the excess continues, subject only to the general limitation of actions at law. 6 John. C. R. 95. See R. S. and act of 1837.

But money which has been recovered and collected at law in a suit upon a usurious security, in which suit there was a legal defence, cannot be recovered back from the plaintiff in such suit, either at law or in equity. Bartholomew v. Yaw, 9 Paige, 165.

Usury may be pleaded to an action upon the corrupt contract or security, but to a scire facias on a judgment confessed, usury is no plea. For the statute only extends to bonds, contracts, and assurances, and cannot extend to a judgment, especially as it was competent to the defendant to have pleaded the usury to the original action, and not to have suffered judgment, which, instead of a contract or assurance, is redditum in invitum. Middleton v. Hill, Croke Eliz. 588.

But the usury may be got at on a motion to vacate the judgment, which practice is confirmed in England as the proper mode of proceeding, and upon a rule to show cause why the judgment entered upon a bond and warrant of attorney given by the defendant, should not be set aside, and why the proceedings in the scire facias should not be stayed on the ground that the consideration upon which the warrant of attorney had been obtained, was corrupt and usurious, the Court directed an issue to try, whether or no the contract were usurious, and in the mean time ordered the rule to be enlarged Cock v. Jones, Cowper, 727.

In New York a judgment by confession on bond and warrant of attorney set aside for usury, the usury being sworn to by the defendant, and not directly and positively denied by the plaintiff. Lansing v. McKulley, 1 Cowen, 35. The practice is there referred to.

To a plea of usury the plaintiff may reply, quod non corrupte agreatum fuit, or quod licite barganizavit, or that it was for a lawful debt, with a traverse of the corrupt agreement. And he need not show in his replication how much the debt was. Villars v. Cary, 6 Mod. -303.

And he may traverse the agreement modo et forma, without traversing it as the corrupt agreement. Cock v. Radcliff, Cas. temp. Hard. 287.

[ocr errors]

Where the defendant pleads quod corrupte, &c., and the plaintiff replies that it was pro vero et justo debito, and traverses the corrupt agreement, he must conclude with a verification, et hoc paratus est verificare, and not to the country. Baynham v. Matthews, Fitzgib. 130. But the usual and better way is, to conclude to the country

without any traverse. Hedges v. Sandon, 2 Term Rep. 439, 1 Saund. 103, n. 1.

Where the defendant had pleaded the statute by a wrong date and title, and the plaintiff, by his replication, had admitted the existence of such a statute, the court, nevertheless, awarded a repleader. Loze v. Walton, Croke Eliz. 245. 1 Vern. 110.

But the general doctrine is, that the court will allow no amendments on the part of a defendant pleading usury, but upon the terms of waiving the forfeiture and submitting to pay the principal and legalinterest. 3 Murphy, 237.

And where in debt on bond, the plaintiff declared that the bond was made in London, and the defendant pleaded that the bond was given for an usurious contract made at D. in Staffordshire, which the plaintiff traversed, and the issue was tried in the county of Stafford; it was moved in arrest of judgment, that the trial should have been in London. But the court thought the trial right, and mentioned two cases where the like proceeding had occurred. Kinnersley v. Smart, 1 Leon. 48. Crcke Eliz. 195.

And it seems that where an action is brought upon an usurious security, which has been given for a debt originally valid, if the defendant prove the security void, the Court will permit the plaintiff to fall back on the original consideration and recover. See case of Depau v. Humphreys, 20 Martin, 1.

The doctrine that a borrower of money at usurious interest, is in pari delicto with the lender, has long since exploded, and with regard to parties becoming participes criminis, the following distinction is laid down, viz., between the prohibition of statutes made to protect weak and necessitous persons from being overreached or oppressed, and the prohibition of statutes enacted upon general reasons of policy and public expediency; the rule is, in the latter case all parties are equally criminal; in the former, the oppressor is alone within the pale of the law. Per Lord Mansfield in Clark v. Shee, Cowper, 200. And this has been recognized and acted upon in most of the subsequent cases. Doug. 696. 3 Term Rep. 25. 6 East 241. Cowper, 790.

SECTION III.

Of the evidence of usury.

Upon the plea of usury, the proof lies all upon the defendant. In an action against the acceptor of a bill, accepted for the accommoda

tion of the drawer, the drawer is not a competent witness to prove that the holder came by the bill on an usurious consideration; because he does not stand indifferently liable to the holder and the acceptor. Jones v. Brooke, 4 Taunt. 464.

It has also been holden by Lord Kenyon, that an attorney who prepares deeds which are granted on an usurious consideration, may be examined by the defendant to prove the usury; and that his privilege of confidence will not extend to the original formation of the deeds upon which the action was brought. Board v. Ackerman, 5 Esp. N. P. C. 119.

And in action by the endorsee against the maker of a promissory note, where usury was set up as a defence, Lord Ellenborough admitted in evidence letters from the payee to the maker, stating the usurious consideration between them; it having been shown that the letters were written at the same time with the making of the note. Kent v. Lowen, 1 Camp. 177.

A demurrer, on the ground of usury, cannot be sustained. 3 Marsh, 174.

But that which appears neel not be proved. 2 J. J. Marsh, 428. But evidence of usury without being charged will not answer; for we have before seen that it must be pleaded. 3 Marsh, 391. 3 Conn. 266.

But if facts are set forth and pleaded, which necessarily constitute usury, it is unnecessary to charge such facts as being usurious. 5 Monroe, 467. 6 Monroe, 81, 7 Monroe, 263.

And parol evidence is admissible to prove a written contract usurious. 3 Marsh, 419.

Receipt of interest is evidence of a loan. 3 J. J. Marsh, 694.
Foreign laws must be proved as alleged. 3 Dana, 497.

In Kentucky, it seems, a surety cannot plead usury without the consent of the debtor. 4 Dana, 181.

A party to an usurious note, divested of his interest, is a competent 1 Conn. 260.

witness.

Parol evidence of usury in ejectment is competent testimony, and may be given without notice. 4 Conn. 436.

And to impeach a deed. 5 Day, 100.

Complainant's bill itself may prove the truth of the defendant's plea of usury. 6 Randolph, 661.

If the debt be just, a bond given for it may be usurious. 6 Mod. 12 Mod. 385. 3 Bos. & Pul. 159.

303.

An answer need not set up usury with the formal strictness of a plea at law. 8 Leigh, 330.

It is usury if more than lawful interest be proved to have been taken, though the parties be ignorant of the law. 1 Stewart, 442.

A note given for a compromise is good, though more than lawful interest be taken. 2 Stewart, 63.

The declaration of a person, for whose accommodation the note is taken, is not evidence. 1 Porter, 57.

In the absence of legal proof of a foreign law, the law of the forum will prevail. 12 L. R. 594. 6 L. R. 557.

Facts, without charge of usury, may be construed as usury, 7 Yerger, 545.

Where a usurious security is utterly void, it is no evidence of a previous indebtedness. 13 Wend. 545.

Under the New York Act of 1837, the personal attendance of the plaintiff is necessary. 20 Wend., 611. See also 24 Wend. 360.

For the notice requisite under the act of 1837, see 3 Hill, 564.It seems a general notice is not sufficient. And no order for the plaintiff to be examined is necessary. 4 Hill, 35. Plaintiff may be compelled by subpoena to attend. 4 Hill, 119.

The general rule established by the American cases appears to be, that a party to a negotiable note shall not be admitted to prove it to be usurious. Upon the history of this rule the American Jurist (No.. VII. p. 140) has these observations: "It is well known that the rule was first introduced in England in 1796, in the case of Walton v.. Shelly, 1 Term R. 296. In 1798 the rule, which notwithstanding that case had never been firmly established in England, was abandoned. See Jordaine v. Lashbuck, 7 T. R. 601. And it has ever since been held in that country, that a party to a negotiable instrument, if not interested, may be a witness to impeach its validity. In most of the states, however, which have decisions on the subject, the rule adopted in Walton v. Shelly has been adhered to. In Connecticut the rule has been thrown off; and, if we may judge from some expressions used in the Supreme Court of New York, it is questionable, although it has been so long and so firmly established, whether it will be long permitted to maintain its ground in that state." Some exceptions have been made to the rule in some of the states The exceptions are not all of them established in all the states in which the rule is admitted. One of them is, that when the plaintiff himself is a party to the illegal concoction of the note, a party to the note, if not interested, may prove that it was void in its original formation. See Powell v

« AnteriorContinuar »