Wright v. Minter

2 Stew. 453

Opinion

By JUDGE TAYLOR.

It is insisted by the counsel for the plaintiff in error, 1st. That the replication is a sufficient answer to the plea; 2d. If it is not, that the plea is-insufficient.

, It is unnecessary to cite authorities to sustain the doctrine, that a replication which tenders an issue to the country, must deny the whole plea, and put in issue every material matter which, could be introduced in the defence under the plea. In this case, the plea is, that “ the consideration of the note” was usurious;~the replication, which professes to deny that plea, is, that “ it was not 'agreed by and between the plaintiff and defendant’s principal that more than legal interest should be reserved,” &c.

Under the plea, the consideration of the note may be inquired into, for the purpose of proving it to be usurious, no matter from whom that consideration passed, or how it arose. By the replication, this investigation is narrowed down to the inquiry, “..did the plaintiff and Elliott mutually agree that usury should be reserved?”

In the case of Wright v. Elliott,

a decided, in this Court, it was determined, that if the payee practice an im-= p; sition upon the payor, and wilfully take from him a note for a larger sum than the debt, and legal interest, it is usury, although the payor did not know at the time that more than he legally owed was embraced in the note, and this decision I feel no disposition to overrule. It is not required by our statute “ that the parties shall corruptly enter into a contract by which more than legal interest is reserved,” to make that contract usurious. But it is declared that “ no person or persons, shall,. upon any contract whatsoever, take directly or indirectly for the loan of any money, wares, merchandise, &c. more than the rate of eight dollars for the forbearance of one hundred dollars,” &e. Certainly then, if the payee overreaches the payor, and exacts more than legal interest, he does, by the contract, “ directly or indirectly take” more than eight per cent. Suppose such had been the fact with regard to the present case: the plea would have embraced such a defence, but the replication would exclude it entirely. The replication therefore, is certainly bad.

As to the second position taken by the defendant, it is certain that the plea is not technically good; but it has often been determined in this Court, that in these small cases, if the material facts can be tried under the pleadings, they will be sustained. A formal declaration is never required, but only such a one as contains a substantial statement of the cause of action, for which reason it is more usually termed a “ statement” than a “ declaration.” A plea of a similar kind is all that should be required, more especially as the issue .is to be made up under the direction of the Court. The plea in this case was calculated to admit every inquiry material to the investigation.

By JUDGE CRENSHAW.

Taking for granted that the plea of the defendant is good, it becomes material to inquire whether or not the replication is a denial of, or sufficient answer to that plea. There is no doubt but that the replication Was intended as an answer to or denial of the matter of the plea, and therefore properly concludes to the country; and to my mind it is equally clear that it is a substantial answer to the plea. By the consent of parties to plead in short, the technicalities of form were dispensed with. The question which then occurs, is, was the replication in substance a sufficient answer to the plea?

To say that the note was given for an usurious considcration, is substantially the same as to assert that it was usuriously agreed. Though the consideration is a part only of the agreement, yet it is a most vital part, and on the sufficiency of which depends the validity of the agreement. If the consideration was usurious, the agreement must be equally so. The gist of the plea and point presented, is usury, and the substantive fact asserted by the replication is, that there was no usury. In the case of Waterman v. Haskin, a a replication to a plea of usury, similar to the present one in all respects, was held to be good, and it was said that it might /conclude to the country. In that case, reference is had to a number of reputable authorities, all tending to establish the same rule of pleading.

If the decision in the case of Wright v. Elliott, contains any thing repugnant to these principles of practice, I am unable to discover, it. In that case, the judgment was reversed, on the ground that the Judge charged the jury “ that the ignorance of the defendant or borrower, did not take -the case out of the statute o-f usury.” And that if the difference between the amount of money paid by the plaintiff on the execution, and the notes given by the defendant, was greater than the legal rate of interest, it was usury.” It was decided that the charge was too broad, and that more than the legal rate of interest might be innocently reserved by inadvertence or mistake, and if so, it would not be usury. But surely by this decision, it could not have been intended to abolish the rules of pleading, or to establish any new principle in relation to usury? Usury is well defined to be a corrupt agreement to take or receive more than the legal rate of interest. This is the settled law in England as well as in several of the States, and I can perceive nothing peculiar in our statute of usury, which would require a different rule, and warrant us in departing from principles so well established by numerous precedents.

The corrupt intention to evade the law, and to reserve more than the legal rate, is the very essence of usury, and is a necessary ingredient to render a contract usurious. I am for reversing the judgment, and remanding the case..

Judgment affirmed..

1 St™. In-page ”

7 John. Rep. 283.