#### *Mansfield *vs.*Wheeler.

On a defence of *usury,*where there is a verdict for the *plaintiff*and there is any room for doubt as to the truth of the defence, a new trial will not be granted, although the *court*sitting as *jurors*would have found for the *defendant.*

So, a verdict will not, on a *case*made, be set aside for the misdirection of the judge, where it is manifest that the party complaining sustained no injury from such misdirection.

This was an action of *assumpsit,*tried at the Rensselaer circuit in September, 1838, before the Hon. John P, Cushman, one of the circuit judges.

The plaintiff declared on the *money counts*and attached to the declaration the copy of a promissory note made by the defendant for $1100, bearing date 24th April, 1837, payable to A Wheeler & Son, on demand, with interest. On the trial the making and endorsement of the note was proved, .and it was further shown that it was given in *renewal*of a previous note, for *79the same sum, dated in January, 1837, and payable in ninety days. The defence set up was *usury,*and several witnesses were called on the part of the defendant and gave testimony. The judge charged the jury that if the *original loan*was made without any agreement to receive more than seven per cent, for forbearance, the plaintiff was entitled to recover, although at the time of giving the note in question it had been agreed between the parties that the plaintiff should be paid more than seven per cent, for the *continuance*of the loan for a time beyond the period for which it was originally made ; and although the loan was extended and the note given upon the express condition that the defendant should pay such excess over the rate of seven per cent, still the note would not be avoided by the agreement, and. the plaintiff would be entitled to recover. The jury found a verdict for the plaintiff. The defendant, on a *ease*made, asks for a new trial on the grounds: 1. That the verdict is against evidence ; 2. For the mis- [ *80 ] direction of the judge ; and 3. That the plaintiff had *been permitted to recover upon the *original indebtedness*without cancelling on the trial, the note, a copy of which was attached to the declaration.

*J. Boon ft M. T. Reynolds,*for the defendant.

*A. Taber,*contra.

Cowen. J.

*By the Court,*It is admitted that the judge erred in saying that the second note was good, though given on an usurious agreement. The charge should have been that it was void, but that it being void would not prevent a recovery on the original loan, if that were without usury.. The error was, however, merely in the words used, and resulted in no injury to the defendant. The second note being for no more than the sum loaned, with interest, the measure of recovery was the same under the charge given, as if the jury had been referred to the original amount. It is also complained that the judge should have qualified the direction given, by saying that the jury could not find for the plaintiff without the production and cancellation of the note in question. It would have'been somewhat awkward for the jury to find such a conditional verdict; though it would have been very well, had the judge been requested, to ask the jury whether they found the second note to be usurious ; and if they did, then to require its production and cancellation. This perhaps would have been right. The thing was not mentioned, however; and if it be of any importance, that form may still be complied with.

The important question is whether the jury have not found against the weight of evidence. I am free to say, that, on the testimony of *Carpenter,*confirmed as he certainly was by other witnesses, I should probably have *80felt myself bound, sitting as a juror, to have ‘found the original loan usurious. But this is hardly sufficient to warrant.. an interference with the verdict against a defence so severely penal as' that of usury. The case, as made out, was open to some observation on the question whether the usurious ^contract extended to the original loan; and, on the whole, [ *81 ] we think the verdict should not be disturbed.

Let a new trial be denied, on the plaintiff cancelling the note in question and filing it with the clerk of this court at Albany. *>*