The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1899-12-08
sklRM LOSES.
The General Will Have to
Make Full Answer to
Magowan's Charges.
USURIOUS INTEREST CASE
His Plea of Statute of Linn
itations Was Over
Ruled.
rsnac,a, to ..The Jersey city News

|
lam H. skirms pleading of the statute
of limitations as a bar to any further IN
curry into his alleged charging Of usurious
] interest on the loan of $4,000 made 10
Frank A. Mcgowan some fifteen years
| ago. is held not to be good by the Court
Of Chancery. The General will nave 10
make full answer to the charges made
against him in the suit brought at the IN
| stance of Reimers & Meyers to have set
/ aside the sale to Sklrm of 1,048 shares of
Empire Rubber Company stock belonging
! to Mcgowan. This much was decided in
an opinion filed yesterday by Vice Chan
cellor Emery. overruling the demurrer of
General Skirm to the amendment to the
bill of complaint filed by John E. Clancy
as receiver for Mcgowan.
The suit was brought by MFR. Clancy to
set aside the sale of the 1,048 shares of
stock of the Empire Rubber Company, the
| sale having taken place under an execu-
ton issued upon the confessed judgment
for 500 600 by Mcgowan to Skirm. The
bill alleged that the giving Of the judg-
gnent and the sale of the stock hereunder
were devised between Mcgowan and
Skirn for the purpose of defrauding. The
original bill further alleged that at the
time of the entry OF judgment Mcgowan
was not indebted to Skirm on any ae-
count
The amendment to the bill to which the
demurrer was entered set out that note
OF s25 900, together with interest thereon,
was included as part of the Indebtedness
upon which the judgment was confessed,
and that at the time of the entry of the
judgment this note had been paid, and
that nothing was due on it. The circum-
stances by reason of which the payment
of the note is claimed are set out in the
amendment, and are substantially that
the original loan of $4,000 and its con
tinuance were made under corrupt usu-
rious agreement, which was executed by
the parties and under which the amount
already paid on the note before the entry
of the Judgment exceeded the amount of
the original loan and lawful interest and
amounted in all to $4,000.
The original bill charged that nothing
was due upon the Judgment and prayed
answer, and Skirm answered by saying
that Mcgowan was Indebted to him in the
sum of $4,000 for money loaned and in
terest, and that the Judgment was con-
fessed for a debt justly and honestly due.
The amended bill set up the claim that
the Judgment to the extent OF the princi-
pal and interest of the s25, 900 note was
wholly without consideration, and that in
determining the amount due at the time
of the confession of judgment the excess
usuriously paid should be charged against
Skirm.
Among other things, the original bill
prayed a decree that written agreement
under which the loans were made and
which was set out in the bill, be declared
usurious and illegal. and that skirm ac-s
count for all moneys received by him I'M
der the agreement. The amendment
prayed further for an account of the
transactions between Mcgowan and his
firm and Slxirm under the agreement. and
a settlement of the amount actually due
for money loaned and legal interest,
charging Skirm with moneys paid in ex-
cess of legal interest. Skirm demurred
to the amendment, on the grounds that
the right to recover money usuriously
paid was barred by the statute of limita-
tions and, further, because of want of
equity to either discovery or relief as to
1.-THE matters contained in the amendment.
The Vice Chancellor, in his opinion,
says:-"The demurrer must be overruled
to the bar of the statute of limitations
demurrer is based on misapprehension
of the object of the bill and of the effect
of the amendment. The bin is not filed
to recover sums Of money alleged to have
been usuriously paid. but to set aside a
Judgment and sale as fraudulent and
without consideration. The usurious
agreement and payments hereunder are
set out as circumstances showing the con-
sideration Of the Judgment and the re-
ceiver, alleging that nothing was due on
theiudgment is entitled to an answer as
to the consideration as set up by the re-
ceiver is the true consideration OF the
Judgment Second the original bill
charges that at the time Of the execu-
ton and delivery of the bond and enter
ing the judgment Mcgowan was not in
debted to Skirm ON any account in the
sum OF $4,000. for Which the Judgment
was confessed, and that at the time Of
the alleged fraudulent sale Of the stock
Mcgowan was not Indebted to Skirm In
any way or ON any account whatever.
The answer to the original bill denies
these charges and says. that at the time
Of the execution Of the bond and the
confession Of the Judgment Mcgowan was
Justly Indebted IN the sum Of 500, 900. The
rule Is entirely settled that defendant