The daily gazette., 1875-12-07
THE USURY LAWS.
Judge WoOtten's Charge Ina the Case of
Bnchus ~. Clark An Interesting De-

ed by Judge Wootten in the case of
Jacob Bachus rS VIM. ii. II. Clark,
and is one of general interest to the
public. The case was reported on Fri
day, but the charge did not come into
our possession until this morning.
Gentlemen of the Jury: This case
which you are sworn to try, is an
action of assumpsit on promissory
note, made by John c. Clark, for 5000
at II month, payable to the order of
the defendant, Vim. II. II. Clark, and
by him endorsed and dated on the 10th
of September, 1878.
The note has been formally proved
and given in evidence to you, and
upon the plaintiffs showing, would be
entitled to yourvcrdlct for the amount
of tie note. with Interest from the
date, that is, from the nth of Septcm-
Der, 1873.
But The defendant sets up us de-
fense, plea of usury as q bar to the
plaintiff s right of recovery, and upon
the plea, the case must stand or fall.
If there be usury in it, the law of
this State, of long existence, makes it
a good and available defense.
Whether the facts provedin the case
characterized it rs case of usury, is a
question for you to determine upon,
hearing from the Court, what, by our
Laws constitutes usury.
1t appears that on the 18th day of
March, 1878, John z. Clark made a
note for 5000, payable to the order of
Vim. II. II. Clark, at six months; that
the payee, VIM. II. Fl. Clark, endorsed
the note, and John c. Clark, the
maker, took it to McLear & Son, and
of them got the money on it, that is
according to his statement, he got the
amount Of money less $45, or in other
words, they charged him one and a
quarter per cent. per month, Is pei
cent. per annum. That McLear 81 Son
sold the note to Jacob Bachus, the
plaintiff in the suit. That when il
matured, it was protested for non-pay
, ment, and in about two weeks after
this note fell due, and was protested
for non payment; the then holder OF
it, Bachus the plaintiff, agreed to take
new note with the same maker and
cndorser, for the amount of the first
one, at twelve months with interest
from the the date of the new note, il
dating back to the time of maturity Of
the old. or first and original note
that note made by John G. Clark pay
I able 70 the order of VIM. II. II. CLARK
and by him endorsed, was substituted
FOR tie original note. 1t was made OF
the 10th of September, 1878, and il
the one which is now the subject mai
ter of this controversy.
| come now to the questions Of law
and facts on which the case stands be
fore you, and upon which you mus
decide it, The facts are given to yo,
by the witnesses and other evidences
and the law, you will take from til
, Court.
y The first question for your consider
alton, is whether the first note mad
by John c. Clark, payable to the Orde
OF VIM. Ii. II. CLARK, and by hin en-
dorsed, was an accommodation note
made for the benefit of the maker
Il without any value or consideration
moving from the payce and cndorseI
Ii there WAS no value received and Il
consideration moving from the paye
and endorscr, it was undoubtedly, a
accommodation note, and accordin
to the evidence, if you believe tn
testimony of John {. Clark, there wa
no Indebtedness on his part to tn
pavee and enGorser, and no value re
ceived. The next question is whethC
John {. Clark sold the note to McLea
e Il Son, and whether they receive
from him higher rate of intere.
than six per cent. per annum. He tel
you they did, and that they charge
"A. him one and quarter per cent. pt
til month, and that the amount he IT
OF ceived was $40 less than the amour
L of the note, which was equal to tiftee
&C. per cent. per annum.
r. Now gentlemen, if you believe tn
m m testimony and these facts are SO ,
<, testified to by John G. Clark, IL
lly transaction as between these parti,
n. was a usurious one under our statut
es which have just read to you, and Il
m note then in the hands of McLear
n, Son, became and was tainted with u
II. ury and therefore vitiated. made il
IN valid and absolutely void, and the +
d. covery could be had on it as betwee
n, any of these parties, and the rule
that where no action lies as betwee
81 the parties to another note, none ca
" be maintained by subsequent hold,
r. of it. 1t has been so decided by tn
OOuTL Ill luc CdSC VI DiOOh w. AClS
a.TH and also in more recent case
Sc Cleaden vs.. Webb. 1t was ruled
e. those cases that as accommodate
oi notes were without value received ar
q. without consideration no action lies
t the suit of such payee and endorse
OF and that the purchase of such a no
al by another person from the max,
amounting to loan by the purchase
nd to the maker, and the rule being as
~ have stated it that where the parties
a note cannot be sued by each othe
no subsequent holder OF the note ca
maintain an action against either Il
maker or endorser. The ruling
those cases presume is not auestlont
But the plaintiffs counsel taking Il
ground that Backhus was an innocel
bone tide purchaser of the first note
question from McLear & Son, withel
notice or any knowledge of usurio'
ss character of the transaction betwe6
the prior parties, and on this groun
:. he insists that upon principles of la
u u the rights and interest of the plainti