Seymour v. Strong — 4 Hill & Den. 255

Majority

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Seymour and others, ex’rs. &c. vs. Strong.

Headnote

Before a witness’ competency can be deemed to have been restored by a release, something more than a constructive delivery of the release—i. e. a delivery to a third person for the use of the witness—must be shown. It should at least appear that he knew of the release at the time of giving his testimony.

A witness, prima facie interested, having been examined under a commission, it Was shown at the trial that the commission, together with a release of the witness’ interest, were enclosed to the commissioner in one wrapper, accompanied by directions to deliver the release to the witness before swearing him; and that the release was afterwards annexed to the commission and returned with it1 Held, sufficient evidence of "the delivery of the release to authorize the deposition to be read.

C. covenanted to assign to a bank, bonds and mortgages on real estate to the amount of $13,000, payable in five years, with interest semi-annually, and to guaranty the payment of them; in Consideration whereof, the bank agreed to transfer to C. certain stock to the amount of $6500 at its nominal value, but which was then twenty-five per cent, below par, and to pay him the balance in money. Afterwards, the bonds and mortgages not having been assigned, the bank transferred the stock and'paid the money on receiving two notes for $6500 each, agreeing to take the bonds and mortgages in payment, if delivered before the notes became due. Held, in an action upon one of the notes, that the transaction was usurious ; and a verdict finding it otherwise was set aside.

Assumpsit on a promissory note, tried at the Monroe circuit, in December, 1841, before Dayton, C. Judge. The note was for $7005,67, dated December 26th, 1836, and payable to the Bank of Rochester, or bearer, three months after date. The defence was usury. At the trial, the case proved was this : On the 26th of January, 1836, a Written agreement was entered into by Daniel Collins and the Bank of Rochester, by which the former covenanted to assign to the bank, bonds and mortgages on real estate to the amount of $13,000, payable in five years, with interest semi-annually, and to guaranty the payment of the mortgages; in consideration whereof, the bank agreed to

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assign to Collins 130 shares of stock in the Rochester Cotton Manufacturing Company, (the nominal value of which was $6500,) and pay him the sum of $6500 in money. The bonds and mortgages not having been assigned, another agreement was made between the parties on the 27th of February following, which was written below the other on the same piece of paper. By this last agreement, after reciting that Collins had given two promissory notes for $6500 each, one endorsed by Strong (the defendant) and the other by one Frost, payable ninety days from date at a bank in the city of New-York, it-was stipulated that the Bank of Rochester would receive bonds and mortgages in payment of said notes, if delivered within the time said notes had to run. The notes mentioned iif the agreement bore interest from date, and, when they were given, the bank assigned the 130 shares of stock, and paid Collins $6500 in cash. This assignment of stock and payment of money formed the only consideration of the notes. The note in question was made by the defendant, and substituted in the place of the one mentioned in the agreement as having been endorsed by him. It further appeared in evidence .that, during the month of January, 1836, and for a long time afterwards, the stock of the Rochester Cotton Manufacturing Company was at least twenty-five per cent, below par

The defendant’s counsel offered to read in evidence the deposition of Daniel Collins, a resident of Ohio, taken under a commission on the 11th of October, 1839. The plaintiffs’ counsel objected, on the ground that Collins was interested. The defendant’s counsel claimed that he had been rendered competent by release ; and, for the purpose of showing this, proved the signature of the defendant to a release dated October 2d, 1839. The defendant’s counsel further proved that the release was delivered by the defendant to his attorney, Mr. Gilbert, for Collins’ use, with a request to send it to him—that it was accordingly enclosed in the same wrapper with the commission and sent by mail to the commissioner, with directions to deliver it to Collins before being sworn—that it was re

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turned with the commission &c. postmarked at the residence of the commissioner—and that Collins left this state in 1836, for Ohio, where he had ever since resided. The plaintiffs’ counsel insisted that the evidence was not sufficient to show a delivery of the release to Collins, and the circuit judge sustained the objection.

The judge charged the jury, among other things, that if they should be satisfied the transaction was intended by the parties (Collins and the bank,) as a cover for a usurious loan, the defendant would be entitled to a verdict; but if, on the other hand, they thought the contract between the parties was such as the two written agreements and the note imported on their face, and nothing more, they should find in favor of the plaintiffs. The jury rendered a verdict for the plaintiffs; and the defendant now moved for a new trial on a case.

J. W. Gilbert, for the defendant.

C. M. Lee, for the plaintiffs.

By the Court,

No doubt Collins might avail himself of the release on proof of the delivery to Mr. Gilbert for his use. But the object being to qualify a witness, something more than a constructive delivery of the release was necessary. In order to remove his presumed mental bias in favor of the party, it must appear that he knew of the release before giving his testimony. The circumstances here in proof, however, show that he could not but have known of the release in season for that purpose. Indeed, the proof of its actual delivery to him before he was sworn seems to be irresistible.

There is no pretence for this case being within that of Cram v. Hendricks, ( 7 Wend. 569 5) nor the later case of Rapelye v. Anderson, decided in the court for the correction of errors; in

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December last,^[1] The original note was void in its concoction. The various agreements, notes and other arrangements were all parts of one transaction, and the effect of them was to secure more than seven per cent, per annum to the bank for the loan. The whole was radically and necessarily vicious because of such a usurious effect, by which the intent of the parties must be judged, and there was no question for the jury. (Haire v. Wilson, 9 Barn. & Cress. 643, per Lord Tenterden, C h. J.; Mackie v. Cairns, 5 Cowen, 573, per Colden, senator; The N. Y. Firemen Insurance Co. v. Ely, 2 Cowen's Rep. 678, 705 ; Bank of Utica v. Wager, id. 712, 769 , affirmed on error 8 id. 398.)

I have had occasion, in several recent cases, to examine the state of the usury law in reference to questions very nearly of kin to the one before us; and must confess that I found the paths of fraudulent device much more broad and better fenced for the usurer than I had supposed possible. I found them withal so plain and numerous, that very little ingenuity seemed necessary to get round the statute. Three ways were open, which I had supposed to be shut, viz. the usurious loan of credit; (Ketchum v. Barber, ante, p. 224;) usurious interest in the name of factorage; (Suydam v. Westfall, ante, p. 211;) and the sale of choses in action generally; (Rapelye v. Anderson, post.) But we all think that the course taken in the principal case—a usurious loan on contracts to procure the assignment of choses in action at a future day—choses in action which are not shown to have been in existence at the time of the loan, the latter, moreover, being ultimately secured by the promissory notes of the party—is not sanctioned by any of the cases. For the reasons more at large why we cannot yield even to a verdict pronouncing such a transaction free from usury, I refer to the opinion delivered by me in Rapelye v. Anderson. Although

(a) (a) For Rapelye v. Anderson, see the cases decided by the court for the correction of errors, post.

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those reasons were overruled by a majority of the court of errors as not applicable to that case, we think they apply to the present. The power to grant new trials, where there is a verdict against the weight of evidence, prevails in all civil actions, except those which draw in question sales, transfers or mortgages made for the purpose of defrauding creditors. There are also cases where the usurious devices are thought to he tortuous and obscure, in which jurors have been allowed to decide finally ; but we are not disposed to multiply such exceptions to our acknowledged power. The legislature has commanded us to use all legal means in nullifying usurious transactions, whether direct or indirect; and we should execute the command most miserably by winking, or even alloxving jurors to wink, while looking upon thin disguises. We are satisfied that neither has ever been done in case of a transaction so obviously usurious as the one in question.

There must be a new trial both for error in excluding Collins’ deposition, and on the merits as shown without it.

New trial granted.

Cases cited

Cram v. Hendricks 7 Wend. 569 N.Y. p. 257