Fields v. Gorham , 4 Day 251 ( 1810 )

X. Smith, J.

This was an action of assumpsit in common form, on a note of hand; and, on trial to the jury, upon a plea of usury, a verdict was had for the defendant; but the court arrested the judgment for the insufficiency of the plea. The defendant then put in another plea, in ail respects like the former, except some additional allegations respecting the loan of money. This plea was also traversed, and on trial to the jury a demurrer was taken to the defendant’s evidence. The court found the evidence to be sufficient, and rendered judgment for the defendant.

I am of opinion that the first plea was sufficient, and that judgment ought to have been rendered upon the verdict of the jury; and although the court proceeded irregularly in arresting the judgment, yet, as the judgment was finally such as the law required to be rendered in this case, it cannot be reversed.

To the plea there have been two exceptions taken.

1. That no loan of money is stated

2. That neither the plaintiffs nor the defendant was party to the usurious agreement.

But when we attend to the plea we find that, although there was a loan of money in the first instance, the usury complained of in this case consisted in the forbearance of an old debt upon a new usurious and corrupt agreement, and not upon any loan of money. To state a loan of money, therefore, would be worse than useless; for it could not be proved, if stated.

We also find, by attending to the pica, that the plaintiffs were in fact a party to the usurious agreement, though it seems that Eli.hu Monson, who is not a party to the suit, had the profits of the usury. But it can be of no importance who received the profits, since the plaintiffs were actually a party to the agreement.

The situation of the defendant has excited much more doubt. He appears to have had no interest in the corrupt agreement, nor to have been in any way privy to it. He appears to have signed the note as the friend of Richard Gorham, and at his request, without any knowledge whatever of the usury. I have no doubt that, to avoid a note, on the ground of usury, there must be a corrupt agreement between the parties on record ; and I at first thought that the defendant could not avail himself of the corrupt agreement made by Richard Gorham, unless he could show an agency. But, on further reflection, I think he may adopt the acts of Richard at any time; and that a subsequent assent is as good as a prior authority. A contrary opinion renders the statute of no effect; for nothing is more easy than to obtain a friend to execute a note who has no knowledge of the usurious agreement; and such would probably be the constant course, provided an evasion of that sort were to receive the sanction of this court It becomes unnecessary, therefore, for me to make any remarks relative to the proceedings on the second plea.

Edmond, I. and Trumbull, J. gave no opinion.

The other judges concurred in the opinion above stated.

Judgment affirmed.