Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-03-29

4 u
specie, and confidence so generally restored, that the
banks would be enabled slide into specie pa nents
almost lmpercebhbly to the community. c.
COMMON Pleas, March 2s.-John Garrett & Co..
versus J. w. Morse.
This was action brought to recover $l450S, the
amount of a note with interest, Of which Morse was
the maker.
The note admitted, and also the fact Of its be-
ing paid by Morse 10 Richards, Basset e. Aborn, and
by them endorsed over to Garritt d Co., the plain
tiffs in the suit.
For the defence they called
Richard H. Winslow-Some time between the 4th
Of July and the 10th Of August, he heard converse.
which he learned the following:-hat Morse had Dor
rowed $1,000 of Richards an interest of more than
a dollar day; that $500 of this with interest," had
been paid, and Richards wished settlement of the
| balance. Morse had previously lent Richards $50
and he offered to pay the $500 principal and give up
| that 500 for the interest, which would more than
double the amount of legal interest on the $780,
| Richards wished Morse to give him note for Sl4o
the amount claimed under the agreement Mr.
| Winslow persuaded Morse not TO give note; but
Morse ultimately gave it to Richards for the amount
claimed. 1t was endorsed over to the present plain
| tiffs.
On his cross examination, Mr.. Winslow said that
he knew nothing of the original contract, except
from the statement of the parties who had appealed
TO him as umpire 10 decide between them.
Counsel-Was Mr. Morse brokerf
Witness-That depends upon what you consider
constitutes broker.
Counsel-Yon are broker, you not?
Wtncss-l am.
Counsel-Was Mr. Morse one?
witness think not. II depends on what you
call broker.
Counsel-Why lender OF money on us,lrious in
terest.
Witness-Ik know nothing about any ones rates Of
interest except my own.
Counsel-What was Morse?
Witness-He had been merchant-was in no re-
gular business them
Counsel-A loafer in Wall street. doing a little r.
! regular business in usnry. Was he bill broker
Witness-He negotiated bills. believe il is usual
to call all persons brokers who do business in Wall
street.
Counsel-Ddn't you understand that the usur:cus
interest was paid in cash. and that the note was Civ
| en- for part payment OF the principal.
Wness-No SIR.
/ Counsel-You don't remember.
i Wtness-I ds not
Counsel-Isn'ti it customary for gentlemen of your
| profession 10 forget or dsremember all facts con-
! nected with such transactions
| Witness-Not more usual than for gentlemen of
your profession.
Mr. Burr summed ND and said that the plaintiffs had
nnocently taken Wall street brokers' note, and now
astonshed TO find il contested on the ground of
usury. The only available evidence against The inns
cent holder of note was clear Of usury. This
was not clear. The witness, Mr.. Wnslow, appeared
to have pretty lame memory, and il wasnta case
where u was necessary for a jury TO find memory
for witnesses. Mr.. w. did nj pretend TO have clear
and distinct recollection OF the transactions it was not
advisable that he should IL was his business 10 live
on usury and usury ruined mans memory as well
"a his morals. Mr.. Morse was averse 10 having this
claim defeated the ground of usury, because il
would set up precedent that would injure his own
business.
Judge Ushoeffer charged that he would not say
such kind OF evidence this never be belev-
ed, bat il ought always 10 be received with canton
the confessions OF parties gwen in evidence against
them by third person, should be scrutnized with
great care by jury. Ii was very unsafe of
timony.
The jury found for the plaintiff to the full amount
4 claimed.
Arthur Server vs.. James H. Henry.-Sut to reeo-
s7052 the Of due bill for s67 and inter-
est. The note proved. The defence want
Of consideration. Mr.. Dean testified that he had a
conversation with the plaintiff in July last about this
note. Mr. s. then said that he had agreed the oath
/ Of December 1885, to buy 700 acres Of land of DR..
Henry, at % and fraction per acre. and TO pay $500
down in cash, and the rest in notes. He paid Dr. III
s67 OF the 5000; the DR. gave him this due bill merely
asa memorandum. Finally he, Server, could not
fulfil his part Of the coatract and he abandoned it,.
But he didn't state that any deeds were returned He
said nothing abou Henry's performing his part Of the
contract He (Mr. 81 didn't say he knew that his
creditors had taken this due bill and sued Dr. Henri
on il ; nor did he say that he knew what had become
| OF the agreement about the land.
| The due bill was dated Jan. 18th, 1887. II was
also stated that the deed for the land had not been
delivered within 30 days.
On the 25th Of April, 1897, a creditors bill was
MED against server IN the Court OF ChanCeTy under
this BILL receiver appointed and 10 the receiver
Severn made an assignment; and under that assign
nent his creditors brought this action in his name
The Judge charged particularly on the fact thai
Server admitted his inability to fulfil the contract
and that he had given it sp. But if this inability arose
after the assignment TO his creditors, and in csnse
quence Of his difficutes-or il the confession was
made with view 10 defeat his creditors-in either
case they could recover in this suit in his name bu
IL he only made honest confession Of facts as they
existed prior 10 his troubles then the dse bill was no
recoverable and the creditors had no right TO use MS
name to bring this suit There was, however, one Of
tive points to be looked AT. Why did he take due
bill7 Why was not the OCT paid in part for the snc
endorsed merely on the original con,ruct7 and when
he gave MP the contract why did he not give up thu
due bil1 II ejury believed the fact to be honestly ~
Dean said Server stated, then Server could not hav
recovered the amount Of the dine BILL and OF ccers
his creditors cannot recover in case where he him
self could not recover. IL from the testimony, thel
were satisfied that the facts were otherwise, thel
wosld find for the plaintiff
The Jury found for the plaintiff S7o52, principa
and interest.