#### James Jones *versus*Jacob Whitney.

For a debt of one hundred and thirty dollars, on which usurious interest had been paid, the debtor gave a promissory note for one hundred dollars, and another for thirty-nine dollars, payable in thirty days, and they were both avoided as usurious.

Assumpsit upon a promissory note, dated November 3, 1803. for 100 dollars, made by one *Cyrus Whitney,*payable to the de fendant, and by him endorsed to the plaintiff..

The cause was tried, November term, 1812, upon the genera, issue, before *Parker,*J. The defence set up was, that the note was given upon an usurious bargain between the plaintiff and defendant.

***The evidence in support of the defence was, that the [ * 75 ] plaintiff, having a note signed by the same Cyrus *Whitney,*and endorsed by the defendant, for about 130 dollars, called on the defendant for payment, who then stated that he had paid upon the said note four per cent, a month for four months, and that it was hard to pay such interest and costs besides. The plaintiff then told the defendant that, if he would procure a new note from said Cyrus, payable to himself, and endorse the same for 100 dollars, and would also make another note signed by himself for 39 dollars, he would wait thirty days longer for payment; threatening, in case of the defendant’s declining his proposal, that he would sue, &c. The defendant then agreed to give the securities as required, including the four per cent, above mentioned; and such notes were accordingly made and delivered to the plaintiff, of which the note sued in this action was one. The witness testified that the usurious interest *76on the former note was included in the two notes so given ; but it was not testified in which it was so included, or whether it was part in one and part in the other.

The plaintiff contended that, as it did not appear in evidence that the former note was usurious, although four per cent, per month might have been paid on it, yet that the note was not vitiated, and that the note declared on, being for a less sum than the principa, of the said first note, was not tainted with usury, it not being in evidence that any of the excessive interest made a part of the consideration of the note now demanded.

The judge instructed the jury that, if they were satisfied, from the evidence, that four per cent, per month had been taken upon the first note, they might lawfully presume that it was part of the contract between the parties that *that*premium should be paid; but whether it was or not, was immaterial, for if they were satisfied that the excessive premium was calculated and secured in the two notes, which were given in lieu of the said first note, they [ * 76 ] might, consider the * two last notes (for 100 dollars and 39 dollars) as one contract, and that the usury would affect both notes.

The jury returned a verdict for the defendant, and the plaintiff moved for a new trial, for a misdirection in point of law.

The cause was argued, at the last March term, by *Ward*for the plaintiff, and *Bigelow*for the defendant.

*Ward*contended that the facts furnished no evidence that this note was usurious The other note for 39 dollars was sufficient to cover the excessive interest taken on the original note. That note has already been avoided on this ground; and the Court will not presume, merely from the possibility of the thing, that part of the usurious interest is also secured by this note. The note for 39 dollars may be considered as so much money paid, and the note now in question will then have no taint of usury. (1)

(1)

8 *Mass. Rep.*256, *Thompson*vs. *Woodbridge.*— 1 *Esp. Rep.*259, *Hattam*vs *Withers.*— 4 *Esp. Rep.*11, *Turner*vs. *Hulme.*

*Per Curiam.*

In this case the two notes form together one usurious contract. The statute avoids them both.

*Judgment on the verdict.*(2), *(a)*

(2)

 Vide *Cro. Jac.*508, *Roberts*vs. *Trenayne.*

(a)

*Maine Bank*vs. Butts, 9 *Mass. Rep.*49. — *Bridge & Al.*vs. Hubbard, 15 *Mass Rep.*96.— *Wickes*vs. Gogerly, 2 *Car. & P.*397, 1 *R. & M.*123. *—Preston*vs. *Jackson 2 Stark. 237.—Pickering*vs. Banks, Forrest, 72.