Smith v. I. Brush — 8 Johns. 84

Majority

p. 84

Smith against I. Brush and others.

Headnote

debt^onT^bondf fendant pleaded was^aiieged'to consist in in-eluding in the bond 183 dollars 72 cents, for forbearance of pay-appeared that tcT TeHver""To hOTseefeofdatlic value of ioo doilars, and which made part ^ of dollars and 72 heki,S that the u suryTgi ven Tu from™liatawM alleged m the pieadmgs, and that any variance in the sum, alleged to be thT'"cons’derabe "i-.-un'fir the forbearance,*.™ fala! to plea, and that such fc> it.v'ivr w».r,uv to be rejected, or uotTs a ipnJ(L. the jury To will oTui'Tground of newly citscoicreri evidence, which does not relate goes only to’corrobórate the teslimo») given at the farmer trial; or which consists merely of cumulative facts or circumstances relative to the. same matter, controverted at the farmer trial,

THIS was an action of debt, on a bond for the penal sum 4,000 dollars, dated January 1st, 1808. -^e defendants pleaded the general issue and usury, with notice,

The cause was tried at the Dutchess circuit in Septem1 hev^ 1810, before the Chief Justice*

To prove the usury, E. Brush testified, that he was *n the office of the defendant, L Brush, about 9 o’clock ™ ^le evening of the 31st January, 1810, in bed, when the plaintiff and I Brush came in and conversed together x e u about the bond, which the witness understood to be the bond in question ; and the defendant, I. Brush, said to the plaintiff, he need not be in a hurry for payment, as he was well paid for waiting, and produced a statement, hi writing, of the different sums that composed the consideration of the bond, among which was the sum of 183 ° dollars and 72 cents, charged as a premium. It appear- . , . , . . „ ed, also, from the testimony, that the plaintiff was to deliver to the defendant, a horse, called the buck horse, valued at 100 dollars, and which made part of the said sum or premium, ’ *• as ro the fact of usury, which it is unnecessary to deThere was various other evidence, tail; the objections to which, and a motion for a non-suit, were overruled by the judge, who observed to the that, it was a matter of fact for them to decide, whether any part of the consideration of the bond was usur'ous > that the term premium was well understood,

The jury found a verdict for the plaintiff. A motion was made to set aside the verdict, and for a new trial;

p. 85

1. Because the verdict was against evidence; 2. For the misdirection of the judge ; 3. On affidavits of newly discovered evidence.

Ruggles, for the defendants.

Tallmadge and E. Williams, contra.

They cited Cowp. 671. 3 Mod. 35. 3 Term Rep. 351. 1 Burrow, 54. 10 East, 268.

This is a hard defence. The defendants attempt to defeat the plaintiff, in recovering 1,816 dollars and 28 cents, confessedly due him. They have had a chance to do so. The jury have disbelieved the testimony of the witness, by whom the usury was to be proved, and it cannot be said, that there were not suspicious circumstances ; the time, the place, and the nearness of the defendants’ connection with the witness, were all proper subjects of consideration, by the jury.

It appears that the evidence of the usury varied substantially from the usury pleaded, or given notice of. Neither the plea nor notice mentions that the buck horse formed any part of the consideration of the bond; but the usury is alleged to consist in including in the new bond, 183 dollars and 72 cents, as the consideration of giving the day of payment. Now, it appears, by all the evidence, that the horse, which was worth about 100 dollars, formed part of that item. It is well settled, that a variance in the sum is fatal; if so, it is equally fatal to vary in the consideration. Instead of usury to the amount stated in the plea and motion, there was usury only to the extent of a part of it, about 83 dollars and 72 cents. The court ought to have rejected the evidence on this principle; and as it was improperly given, it goes for nothing.

The new testimony, alleged to be discovered, does not relate to any new fact, but goes merely to corro-.

p. 86

borate the credit of Brush's testimony, by proving the parties met in the room, where he lay in btd, accident, and not by any preconcerted arrangement with the defendant; but it is against the general rule to a new trial, merely for the discovery of cumulative facts and circumstances relating to the same matter, which was principally controverted upon the former trial. It is the duty of the parties to come prepared upon the principal point, and new trials would be endless, if every additional circumstance, bearing on the fact in litigation, was a cause for a new trial. The rule against a new trial, for this cause, was stated by the court in Steinbach v. Columbian Insurance Company. (2 Caines, 129.) The motion ought, therefore, to be denied.

Motion denied.