Jackson ex dem. Norris v. Smith , 7 Cow. 717 ( 1827 )

Curia, per Sutherland, J.

The judge erred in intimating to the jury, that they might legally presume the bonds of December, 1822, a renewal of, or connected with the usurious loan of 1821. There were no facts in the case which could legally warrant such a presumption. That Norris made an usurious loan to the defendant in 1821, for 370 dollars, was, perhaps, sufficiently established; but there was not a particle of evidence to connect the loan of 1822 with that transaction. It was for $579 ; nearly double the former loan. It was not, therefore, at all events, a mere renewal.of the former bond; and it is necessary to presume another loan added to the original sum. and both embraced in the latter. This may have been the fact; but there was not a particle of evidence to show it. The evidence makes out that Morris was in the habit of loaning money at usurious interest, and it is altogether probable that this was a loan of that description; and the jury, undoubtedly, founded their verdict very much, if not entirely, upon the fact of his general character or habit as a usurer. That is not a legal foundation for the verdict. The transaction of 1821, therefore, should have had no influence upon the verdict; and the judge should have so charged the jury.

'"'The defendant having taken a contract from Morris, for the purchase of the premises in question, was estopped from denying his title, or showing title in himself, unless he could succeed in proving the whole transaction to have been a cover for an usurious loan. In that he failed. The charge, therefore, was erroneous; and the verdict against evidence.

Mew trial granted.