Murden v. Clifford ( 1826 )

Cuma, per

Nott, J.

Whether a contract be usurious or not is frequently a conclusion of law to be drawn from a chain of facts which it belongs exclusively to the court to judge. The method therefore adopted by the recorder in this case to ascertain the facts to which the defendant was willing to depose was proper and correct; and perhaps, if he had been required to put down those facts in writing it would have been better; because then the plaintiff would have been enabled to have seen distinctly the facts which he was required to admit or deny, and the defendant ought to have been permitted to examine the plaintiff in the same detailed manner in answer to those facts. It was the only way by which the truth could be elicited. The plaintiff may not have recollected all the facts stated by the defendant; he may have mistaken some part of his statement and what is equally probable he may have taken the conclusions which he had drawn from facts for the facts themselves to which he was required to answer; a mistake of which of all others a witness is the most liable to commit. I am of opinion that the defendant ought to have been permitted to have gone into a particular examination of the plaintiff in answer to the facts stated by him and that a new trial must therefore be granted.

New Trial Granted„