Wilmington daily commercial., 1873-05-28
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In the case Of B. O. PsarCs, d. b. 3, Us. Ed
mund Provost. D. b. T., (the bet easel, the jury,
/ who were charged by the court Yesterday morn
ing. brought in sealed verdict last night, which
was for plaintiff, Provoat) for 800 (ths amount
Of his deposit) with interest from the ie agreed
upon between the counsel The jury, however,
retired by direction Of the court, to tlzoir cham
ber to compute the interest, and soon afterwards
returning, rendered 3 verdict for s1l462 for
plaintiff.
upon the question of the admisaibility of James
Lewis, one Of the makers Of the promissoTy
note upon which this suit was brought as .
witness, the court decided lie was competent
witness. The opinion of the court was delivered
by Judge Houston, In substance as follows;
THIS Is the broad and simple question, whether
the maker Of note is 4 competent witness in q
suit against an indorser on the note. At common
law, before there was any decision upon this
subject, he would have been admissible, unless
interested in the suit in this case, he has besn
released from all costs incurred and Is therefore
not excluded on background. In Walton rs. Shell
ley, the court, for the first time. took exception
to the rule in favor OF commercial paper
ON the ground OF public policy, but
the decision was not satisfactory to the Bar or
Bench in England, and in Jordaine us. Lash
brook decided afterwards) it was overruled.
The English statutes against the exclusion Of
witnesses were first passed in the Sd and 4th OF
William ~, and from the fact that they did not
see proper to make an exception in favor OF
commercial paper, the presumption is they were
satisfactory
In this country, ii is questionable whether the
Federal decisions in the L. s. Courts are entitled
TO more weight than those OF England and of
others Of the United States, except from the ae-
mowedged ability OF the tribunals in which
they were decided. The decisions OF other
States are in conflict so also are the precedents.
The learned Judge here cited lst Greenleaf on
evidence, sec 3e5.
The question whether holder OF the note had
notice OF the usurious transaction had not arisen
and 1t is not necessary to decide it. As to the
competency Of the witness, we have arrived at
our conclusion, in accordance with our former
decisions, aud OF those OF many OF the 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 usurious consideration for the
note.
10 the question what did Mr.. Cleaden give
you for the note!" Mr.. Gordon objected that
such testimony was not admissible on the plead
ing OF mon assumpsit." 1t would be opening
in evidence under the general issue to
plead the indirect effect of a statute where tile
statute directly prohibits an act, it is
necessary to plead 1t specially, aud the party is
entitled to notice of what defence is to be made
against claim which is on it's face valid and
just. Several authorities were cited by the
learned counsel in support OF his objection.
Mr.. Higgins argued contra, producing quite a
number OF authorities and was followed by
Mr.. Bayard in reply. The court decided that
any defence which shows the plaintiff at time
the action was brought was not entitled to re-
cover may be given in evidence on the general
issue"
The defence rested their case with the exam
ination Of Lewis, and after able argument be-
fore the Court and to the Jury, by Messrs. Cor
don and Bayard for plaintiff, and Messrs Higgins
and Bird for defendant, in which many reported
decisions we're referred to, Judge Houston de-
lvered the charge OF the court to the Jury:
This is an action of assumpsit, brought by
James Cleaden against James Webb, founded
upon promissory note made by Lewis 4 Son,
dated, Wilmington, March 16, 1872 for $500, 80,
payable to the order of James Webb and by him
endorsed to the present holder.
There is but one legal defence, viz: corrupt
and usurlous contract for the loan Of money,
which by the statute law cannot be recovered.
The effect OF the statute is to avoid the con-
tract in the hands Of the holder, even before the
money is paid. When the action il. however, to
recover the forfeiture under the Statute, it is
essential that tue money has been paid. The
defence is that this was an accommodation note,
and Webb was accommodation endorser, and
no action could lie against him if the note was
made upon usury.
Assuming it to be true that the $1,000 note
was the same which was renewed for two $500
notes. payable in nine and twelve months vet
II only Ss92 was advanced on this note it would
be usurous. 1t is said by counsel for the Plain
tim that in settlement he did not derive any more
than per cent, after that the note now in ac-
was originally loan ON the street for $500 for
one day, for which Lewis Il Son paid Cleaden So.
That note was renewed, and Plaintiff takes the
ground that in the end lie received no more than
per cent. The Court consider. il the loan for
$500, (S5G0 80, including the s6033 for interest
on the $1,000 nOte) was made for one day. and
Lewis d Son paid him at the time IS. for one
day, 1t was usurious, and would taint that'con
tract subsequently made notwithstanding it was
made 30 long afterwards as that the s5 should
amount to less than 6 per cent. That contract
was usur1ous If afterwards renewed in whole or
in part.
When this note, now sued on, was made, the
interest on the two $500 notes was included in
1t, and also the So for the loan OF $500 for one
day, and Lewis Il Son, having only received
1892 for the $1,000 note this rate of interest was
III excess OF the lawful rate in the $500. That
was usurious would tant the original contract.
and if it entered into the consideration Of this
note, would make it void
For the plaintiff ii is considered, as to the $500
loan in the street, but for which check was
given. if the check was not paid that contract
passed away, and would not taiut the note for
$500. We cannot concur with tie counsel II
this note was given for the $500, originally loan
cd on usuTlous contract the faint would follow
IT, Ihis note must, IN the view of the jury. be
Itself tainted with usury to render its usulious.
If this were qua tam action, he statute would
have to be construed strictly for there the party
ID subjected to penalty, and ia criminal pro-
eeedinge the party is presumed TO be innocent,
Dut "a civil aCtAOllHi tue jury must declue by the
evidence, and be guided bylt. II you are satisfied
by the evidence that this note was tainted with
usury, your verdict will be for the defendant Ii
not tainted, your verdict will be for the plaintiff
The jury retired and not having returned at
the hour of adjournment, were empowered to
bring in this evening sealed verdict
The case Of Archibald Given w. Patrick Dill
Ion called for trial. This was a suit
brought on promissory note for $500, made by
Patrick Dillon, Sep. l, ISL payable to the or
der Of Lewis Son, three months after date
1t was endorsed by Lewes d Son. b. q. Pearee
and A. Given.
Thedefence was that this was a note made
solely for the accommodation of Lewis ~ Son,
and was discounted by them at usurious rates
of interest. Plaintiff proved the note, and de-
fendent opened his case
At this point Court adjourned till tomorrow
at 10 A. NJ