Dyer v. Lincoln

11 Vt. 300

• Court: Supreme Court of Vermont
• Decided: January 15, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Bennett, Chancellor.

The answer of the defendant discloses very fully such facts as would constitute the transaction usurious ; but it is well settled, that where usury is set up as a defence, it must be by way of plea, and if insisted upon in the answer, it must be proved — not by the answer— but by evidence, aliunde.

If the court were satisfied from the evidence, independently of the answer, that the small notes, which were transferred from the orator to the defendant and which were shown to be of little or no value, went to make up a part of the consideration of the one hundred and fifty dollar note, we should have no difficulty in coming to the conclusion that they were made use of as a shift to cover a usurious transaction. But in the present case the defendant’s evidence stands very much impeached; and where the defence is to operate by way of a forfeiture of a debt it is the duty of the court to require clear, explicit and satisfactory evidence. Though the evidence may render it highly probable that the orator’s note is usurious, still it is of that character which is not satisfactory to the court. The orator is, of course, entitled to his decree. The master will compute the sum due on the note, and the decree may be drawn up in the usual form.