The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1867-05-09


less material, elected on the trial, ON both
sides, not stated in this report. 1t is not the
custom of eur reporter to characterize the of-
forts OF counsel, but our readers can imagine
that MIR. Smiths would not let trial of this
sort, in which he was counsel, go off without
giving an exhibition of his wonderful powers
OF sarcasm and inyectiye Mr. Gerry did not
crafty him by remaining to listen to his adj
dress. Il
d The following is the charge of the Judge: |
Legal points, presented in charge. -,
q This cas-, has been presented to you with
such clearness and precision, mere remains
but little more to be said 60 ehaDie you W N
telligently determine the issues preseii'eu. Dy
the laws of this State legal interest," upon the
loan or forbearance of money is established at
the rate of six dollars on a hundred for one
wear, and if any person directly or Indirectly
receives retains any excessive interest, (yiz.
in excess of g per cent? in money he shall be
liable for the same to the party from whom r.
ceived or retained, in an action on the case, if
commenced within one year from the time
when the cause OF action accrued.
. The cause OF action accrues when the Excess
sive interest is paid and the action must be
commenced within year from that time.
The plaintiff must set out in his writ the con-
tract or loan and the amount Of excessive in
terest received or retained, and will be entitled
, TO recover only upon proof of such loan, and
the reception or retention of excessive inter
est upon it, V4}S-9f a}Ld leun isSefd % rJl
Z The Dan must be a loan made by the defen-
dant IN this case to the plaintiff Holmes, and
the excessive interest be received from him on
Z that loan. - 5e@ HE' at4 10 u" 9u' s'Iiih II
/ 1t must be a loan upon which the plaintiff
was legally liable to the5detendantG huu Isl .oru
I Usury can only be alleged by the party bound
by the original contract to pay the sum borrow
cd, and il the plaintiff was not bound by the
contract hecannot allege usury in it.l3Iis Ii q
Ii The contract between the parties was con-
tract Tor an endorsement of notes by the de-
fehdant, such a Contract is not rsnrious even
il the consideration paid exceeds the legal rate
OF interest," msr ms. nisHel1ssl D. s,st.I yss,r
Plaintiff must prove that the excessive inter
est sought to be recovered back was paid and
received within one year prior to the commence
| ment of the suit ASA ,1is3YI fsag ynb 43dl
! These embrace the principles of law applica-
| BILE to the case az concisely as can well state
| them. 1 have stated them concisely, as being
4 less likely to confuse yOnr minds. .ol44s5 so,1
| Ii i understand the plaintiffs claim, nc says
| substantially, that John g. Myers in April
| 1856 was in need Of some money to carry on a
| suit then pending in court, and desired him to
| obtain for him o sum of money. That Myers
| then being largely his debtor, in order to aid
bin in his suit and thus improve his chances
ofreceiving payment from him, he consented
TO obtain sum ofIimoney for him. That in
pursuance CT this design he applied to the de-
.
giving as security for its payment the note OF
Hiram III. Dow of April %, 1856of $500 on 4
months That when this note become due IN
stead OF being in q condition to pay it he de-
sired to renew it and obtain farther loan, and
thereupon a new loan was made and he gave
as security for the former loan and the new
loan three several notes of Hiram V.Dow, on
for 1923 on 3months--one for 5000 on 8 MONTHS
and one for 5000 ON 4 months. moo oh! 19# 30
That when these notes became due the loan
was renewed and then new notes deposited as
security signed by Dow, each for 7O95 paya-
| That when these notes became due, the loan
was renewed and three new notes. OF $500 each
4 as security. 1851 80 1'ai t'"t si'ihH 9aVA 2 "'i
/ The aggregate amount of these last notes
| was 2iZ7.dilia gil f.,tf etaag agJ bae ..l-.i
| AT this time which was July is, 1857 Mr.
| bow gave mortgage of property formerly
| owned by Holmes to secure the payne mt OF the
| Thad in August following, note of $500 call
| ed the Porter note coming due, he desired the
def. to take itup. That the deft. consented to
| do so if he could have quit claim deed Of the
premises as security for it and the $2427 loan.
| That by an arrangement between the plf.
and deft. and Dow, the quitclaim deed was
substituted as security for the loan instead of
| the Dow notes. itIf ma as..tit ,sforg zsis f.
Tbs loan he says continued in this form form I'M m.
| til Aug. IS, 1861, when the loan, and the
amount loaned to pay the Porter note were
| consolidated and these with the accumulations
| of interest at the rates charged amounted TO
| $3.50. At this time written agreement was
entered into relative to the matter. That
| the terms of the agreement were not perform
| ed and matters remained in this shape until
July 8, 1864, when he paid the amount of these
loans and interest at rate exceeding per
cent That at this time he paid $6000-which
he says consisted OF, a note of 1882, dated May
2, 1863, and a bill of Gerry & Robinson for
$145 and the $41S0 and Accommodations Of in
| terest b5H s11da fiie thA Ele7Ha ia bFE - -
L This, say, understand to De substantially
the claim the plf makes, its correctness, how
ever, you will determine. 81
2T6 prove his claim he has introduced evil,
dence in the case consisting of oral testimony
and other evidences Of the facts alleged. 4,
These are all before you for your considera-
ton, together with such arguments as conn
sci have adluced upon the one side and the
other in relation to them. ,f DION, .,i ID ia.
The defendant, if / understand him, says
| he did make certain loans in April and August
1856, but that these loans We're made to John
| q. Myers and not TO John A. Holmes. IL this
| was so, this plaintiff cannot maintain an
| ton for excessive interest paid by Myers.
Whether the loan was made 10 Myers or
| Holmes is a question for YOU You have heard
| the proofs upon this matter and the comments
of counsel upon tbemp Upon the evidence
| you must determine this fact. If the contract
was with Myers it is an end of the plaintiff
| case Tile defendant farther says that with
| wlomsoeverithe contract was made it was but
| acontract to lend his name, or endorse the pa
| per, which Holmes produced. Ii this were SO,
| the plaintiff cannot maintain the action, and
| understand the plaintiff comedies such would
| The evidence upon this point is also before
/ you and for your consideration. If you find
| such to have been the case, it would not be a
| usuri0us transaction, and the pltf cannot re-
cover The defendant farther says, however
| this may be, the loan was all paid by the quit
| claim deed, in July, 1857.
If this were So, the plaintiff cannot recover
however lusurious the transactions may have
been, for his action was not commenced until
May 20, 1865, more than one year after such
payment. ' t+" '''-'' g ''i AZ ''.
The evidence bearing upon this point has
been fully discussed by counsel on both sides.
If the deed OF July, 1857, Was made and intend
ed as a payment of the loan it would operate
as payment, and the verdict must be for the
defendant Iai5Y51 noifEHiunlE3 sitiL -g8aE
If, however, it was made and intended as Sc
curity for the loan and not as payment, but as
u security substituted for and instead of the
Dow notes, and so understood and designed by
the plaintiff and sdefendant,it would not Ope-
| rate as a payment of the loan, although it
might discharge Dow from personal liability
on 1.-THE notes. ! The parties might, if they
chose, change the securities for the loan with
out paying or discharging it. b,e yae-teI eli.I,,
If you find the loans of April and August
1856 were from time to time renetced and no
payments made of eitheriprincipal or interest
until July 5. 1864, and then principal and in
te est were paid by the plaintiff to defendant,
the fact hat the loans had been thus renewed
from time to time would not prevent the plain
tiff from recovering if otherwise entitled to-
The cause OF action would accrue when the ex-
cesSive interest was paid.
The amount which the plaintiff will be en-
titled to- recover if anything, will be the
4 amount of interest paid by him July 8, 1864,
1 on the loans over and above six per cent TO
| which sum may be added by wayof damage if
| You think the plaintiffs is entitled to it, a sum
| equal to lawful interest, from the date of the
/ lwrit.,e -.~, -, .tt.t .-,.. .. III. h..
1t is unnecessary for me to remind you that
IL matters rot who the parties are to this suit,
| or what their pursuits in life have been hereto
| fore. These do not change the law. You will,
therefore, be careful, that comments on these
| matters do not mislead you, or prejudice the
claims of either partly iles 4 ilJni .taiiF
The jury, after about an hours consultation,
returned a verdict for the plaintiff of
81, 922 .O8. 'EfH ..t-iq i-ii'i21i'' 80 l'f'"}.g
Mr.. Rand will carry the case to the Law
Court on exceptions to the informality OF the
writ, and on motion to set aside tile verdict as
acai liner evidence r4sdW ii91uEi q 3l "a
Bradbury g. Evans. r.. g. E. M. Rand.
13i f. O. IT. Smith. lfNDH4- buE lHlldO0 5dI b4
qe Gi "fnls hLnn-- LII - -----i5s9 g4ag
% Maine, CSnferesce, M. K. Church. 70
'.''i' 'n" TUESDAY MORNING. 9-'.l :"
Rev. X. Atkinson conducted the opening re-
lgious services. r. Sanderson was added to
the Committee on minutes. N. d. Center and