Thompson v. Berry & Van Beuren

Headnote

Where the plaintiff was sued at law, ron notes alleged by him to be ushrious, and he suffered a verdict and judgment to be taken against him, without making a defence, or applying to this court, on a bill of discovery, in due season, he was held concluded, and not entitled to relief.

An assignment of a debt, usurious in its creation, to a third person, who has knowledge of the original transactions, will not cover it from the scrutiny of the court. And where sufficient ground appeared to support the charge of usury, a reference was ordered to a Master, to take an account, &c.

THE bill stated that the plaintiff, having become embarrassed and pressed for money to pay certain debts, made a note, dated March 12, 1807, in favour of John Ward, (a broker) for 500 dollars, payable in sixty days; and on the 19th of March, he made another note to J. W. for the like sum, payable in 60 days, for which he received of J. W. 1,000 dollars, but was obliged to allow him interest thereon, at the rate of two per cent, per month. That the plaintiff was under the necessity of renewing these notes, as they became due, and on such renewal, to allow the same rate of interest", that the notes continued to be renewed, from time to time, until by adding the interest to principal, he became indebted to J. W. in the sum of 2,089 dollars, for which he gave his note; that J. W. was at that time himself indebted to the defendant Berry, by notes, on which usurious interest had been allowed to B., at the rate of two and, a half or three per cent per month ; and the plaintiff, in order to satisfy Ward.

and enable him to comply with the demand of B., was compelled to make another note to Ward, for the said 2,089 dollars, and to procure it to be endorsed by John E. Russel and Edward Childs, which note, so endorsed, was delivered to the defendant B., at his request, in exchange for the noteg of Ward, to B., and on such exchange, B. exacted and received, for the thirty days the plaintiff’s note had to run, interest, at two and a half or three per cent., and also fifty dollars, advanced by Ward, as a premium for making the exchange of the notes. That on the 1st of November, 1810, the plaintiff made another note for 1,219 dollars, payable three months after date, to Evander Childs, being in consideration of the renewal of certain other notes, made at usurious interest. That on the 2d of November, 1811, the plaintiff made another note to E. Childs, for 1,976 dollars, payable in 60 days, on which usurious interest was exacted, and given in exchange and renewal of former usurious notes. That interest was paid on all the notes above mentioned, from their inception to their last renewal, at the rate of two and a half or three per cent, a month. That the defendant, to whom the notes were transferred by Childs, had knowledge of the usurious considerations, and did himself receive usurious interest; and that he became possessed of the last mentioned note, for 1,976 dollars, as being the accumulated amount of principal and usurious interest, at the rate aforesaid, after many renewals of a note, or original .loan, of one hundred dollars, given by Lewis I. Castigan, to the defendant B., and endorsed by the plaintiff, from motives of friendship. That the plaintiff thus became liable upon his three notes, to 5,284 dollars, and 87 cents.

That prior to the 10th of May, 1811, the plaintiff became indebted to the defendant, Van Beuren, (a broker,) dn a certain sum, by means of usurious loans, the amount of which the plaintiff could not now ascertain. That E, Childs, J. J. Ward and John E. Russel, were also indebt

ed to Van Bearen on notes, all of which were founded on usurious loans; that the defendants confederating together to get possession of the plaintiff’s property, procured, by their attorney, judgments to be entered upon the demands of the defendant B. against the plaintiff, by confession, bond, and warrant of attorney, given as security, amounting to 5,284 dollars and 27 cents, and also an assignment from the defendant V. B. to the defendant Berry, of four judgments against the plaintiff, and against Childs, Ward, and Russel, on their notes or endorsements, and which judgments at the time of the assignment, were usurious, and well known and understood so to be, between the defendants, and that the defendant B. further exacted large sums'for forbearance thereon, particularly the sum. of 228 dollars and 34 cents from the plaintiff, in a note given by him, and indorsed by T. Colyer. That instead of the plaintiff being indebted to the defendant B., the sums above-mentioned, amounting to 6,363 dollars and 41 cents, there would be, if the account was fairly taken upon their money transactions, and lawful interest only allowed in every case, upon the sums actually lent, a considerable balance due to the plaintiff. That the defendant B. has caused executions to be issued on the judgments against the property of the plaintiff, which is advertised for sale by the sheriff. The plaintiff waived all forfeiture, and was willing to pay what was legally and justly due; and prayed for an injunction, and for general relief, &c.

Several affidavits were annexed, verifying the facts stated in the bill.

The defendant B. in his answer, denied all knowledge of the transactions between the plaintiff and Ward, but believed it probable, that certain sums were paid on the renewal of the notes. He set forth, at length, the particulars of the transactions with Ward and the plaintiff, which it is unnecessary to state here.

The answer of Van Bearen also stated the particular

transactions as to the notes mentioned; and that in Septimber, 1810, the notes being unpaid, he commenced suits against the plaintiff, Childs, Ward, and Russel, respectively, as maker and endorsers; and issues having been regularly joined in the suits, they were noticed for trial at the sittings in New-York, in April, 1811, when inquests were regularly taken, by default, pursuant to notice, and that Childs was a witness for the plaintiff, in three of the causes, and judgments were entered up in the Supreme Court, on the 10th of May, 1811, on the verdicts so found by the jury.

Replications were filed, but no proofs were taken on either side. The cause was brought to a hearing on the pleadings.