Wilmington daily gazette., 1873-05-28
COURT PRocEEDlmcs.
a1Ew CAsrfE, MAY 21,


iff (?rOvost), TOR 500 (tho amount OF his dc !
potD with interest from tho time agreed upon be-
Iweon the counsel The jury, however, retired,
by direction OF the court to their chamber TO cam
pute the interest, and soon afterwards returning
rendered a verdict for $tl4.69 Tor plaintiff
ln the case OF James Cleaden vs. James Webb,
upon the question OF the admissblity of James
Lewis, one.of the makers of the promssoFy note
upon which this suit was brought, = witness,
the court decided he was n competent witAess.
The opinion of the court was delivered by Judge
Houston, in substance, as follows:
This is the broad aud simple question whether
the maker of a note il n competent witness in a
suit against an indorser on the note. AT common
law, before there was any decision upon this sub
uct, he would have been admissible, unless inter
ested in the Sut. In this case he has boen re-
leased from all costs incurred, and is therefore not
excluded ON that ground In Walton w. Shelley,
the court for the first time took exception to the
role in fdvOr oil commereial paper, on the ground
OF public policy. But the decision was not salts
factory to the Bar or Bench in England, and in
JoFdaine vs. LAshbTO0k decided SfterWards) it
was OverrOllod. a s
The English statutes against the exclusion of
witnesses were first passed in the 81 and 4th Of
William Nv, aud from the fact that they did not
see proper 10 make an exception in favor OF COM
uercial paper, the presumption is they were salts
factory. v
In THIS country it is Questionable whether the
federal decisions IN the U. s. Courts are entitled
TO more weight than those Of England and Of
other Of the United States, except from the
acknowledged ability Of the Tribunals in which
they were decided The decisions OF other States
are IN conflict; 50 also are the precedents. The
learned Jadge here cited Gtpsnleaf on evidence,
Sec 3Sj.
The question whether tho holder Of the note
had notice OF the usuTioRs transaction has not
arisen and 1t is not necessary to decide it. Az to
the competency Of the witness, we have arrived
at our conclusion IN accordance with cur former
decisions, and OF those Of many Of th6 other
States On the broad question OF public policy.
Exceptions TO the opinion were noted.
james Lewis was then called by the defence TO
prove the usuTious consideration for the note.
To the question, "what did Mr. Cleaden give
you for tue note r. AIR GOEdon objected that
such testimony was not admissible ON the plead
ing OF mon assumpsit" 1t would be Offering in
evidence under tlA "EePeral issue" to plead the
indirect effect Of stalule, where statute directly
prohibits an act, it Is necessary TO plead in spsc-
ally, and the party is eHtitled to notice of what
defence is 10 DO made against claim which is on
its face valid and Just. Several authorities were
cited by the learned cOHnsel in support Of his OBJ
jection.
Mr. higgins argued contra, producing also quite
a number Of anthOTilies and was followed by Mr..
Bay ard in Reply The eOnrt decided that any de-
fence which shows tue plaintiff at time the action
was brought was not entitled TO recover may be
given in sVidenc3 on the general issue" IA
The defence rested their case with the exalnina
ton Of Lewis, and after able arguments before
the court aud july, by Messrs Gordon and BAyaFd
Tor plaintlA. aAd Aessrs. Higgings and Bipd for
defendant Nl Whieh uAany rtportcd decisioNs were
referred to. Judge Huston delivered tho charge
OF the court to the jury. This is action Of Gs-
sumpsit brought by James Cleaden against Jas
Webb, founded upOR promissory note made by
Lewis & Son, dated Wilmington, March l6, 1872,
for $jG033, payable TO the order Of James Webb,
and by him endorsed TO the present holder
There is but one legal defence, viz: A corrupt
and usuriOus contract foR the loan Of money!
which by the stated law cannot be recovered.
The effect of the statute is to avoid the contract
in ths hands of the holder, even before the meney
is paid. When the action is however, TO recover
the forfeiture under the Statute it is essential that
the money has been paid. The defence il that
this was AN accommodatioh iiolo and Webb WAS
an accommodation endorser, and no action could
lie against him Il the note was made upon usury
Assuming Il 20 be tRIs that the s lo0D bots was
the same whinh was renew "a for two 500 notes
payable IN yand Il months, yet II Only $500 was
| advanced on thia mole Il would be usuEious II ls
by counsel for the plaintiff, Chat IN settlement he
did not desire any mor0 than pr cent after that
/ the note now in action was made. The testimony
as to that is 1t was originally losn on the street
fnr $500 for one day for which Lewis & Son paid
cleaden IS.
| AThat note was renewed aud plaintiff takes the
/ ground that Ia the end be received no more than
per cent. The Court eOnmdeF, il the loan iOl
| lncluultlB tDo eOU.o3 lOt lnNoteal
/ the $1,000 nOte) was made for one day, and Lewis
& Son paid him at the time 50 for day, it Wal
nsurious, and would tAint that eOntEact subsequent
| ly made notwithstanding it was made 20 long 81
forwards as that the 50 should amount 10 sas lhAI
| G per cent. That contract was usurious ii after
| wards renewed IN whole or in parts, when th
note, now sued ou, was made, the intereAt on thu
two $500 notes was included IN it, also the IS fo
| the loan OF $500 for Que day aud Lewis d Son
having received 1892 for the $1,000 note. Thi
rate OF interest was in excess Of the lawful rate o.
the 1892. That Gas usurious, would taint the or
iginal contract and if it entered into the consid
Grafton 70 this note, would make it void.
For the plaintiff it was contended, rs TO th
$500 loan in the street, but for which check wa
n given If the check was not pain, that eontrac
passed away, and would not taInt the note 70
Il $500. We cannot concur with ths counsel. Ii thi
note was given for the $500 originally loaned on
usurious contract, the faint would follow it. Thi
note must the view Of the juryg be itself talnt
ed with usury TO render II usurionb.
If this were = qOi tam action the statute .Wonl
have 10 bO construed strictly for there the part
is subjected TO penalty, and in criminal proceed
Ings the party ia presumed to be innocent. Bat il
evil actions the Jury must decide BY the evidence
and be guided by it. II you are satisHed by tn
evidence that this note was tainted with usury
your verdict will be for the defendant
II not tainted, your verdict win be for the pIait
tiff. The jury retired and not having returned q
the hour Of ad adjournment, vera empowered to bnn
10 thih evening sealed verdict ls
The case OF Archibald Given vs. Patrick DilIoI
was called for trial Tkis was 4 suit brought oIl
promiasory note Tor 5000, made By Patrick DiIla
Sept l, 1871, payable to the order Of Lewis & So
three m0nths sitter date. It Was endorsed by Lew
is a Son, b. G. ReaEcs and A. Given. Tie de
fence was this, nota mads solaly for the accom-
mediation Of Lewis 4 Son, and was discounted B.
them at usurious rates Of Interest Plaintiff prov
cd the note, and defendant opened his case. A
this point court adjourned ill tomorrow at 10,
II. = t,rF8YE1R9 T5t9 Z ! /,