1 Johns. Ch. 550 | New York Court of Chancery | 1815
This is a strong and peculiar case, which calls for relief. There appears to be very great reáson to presume an abused confidence. The defendant was the confidential clerk of Prior, and kept his cash accounts, and had free access to all his papers and moneys. From the beginning almost of their connexion, Prior was embarrassed, and had recourse to the defendant for the loan of moneys. This created, at once, a delicate relation between the master and the servant; and the rapidity with which loans and debts were accumulated, securities exacted, the load of dependency increased, and blind and necessitous submission yielded, is distressing to learn, even as told in the defendant’s answer. There are two witnesses to the charge of usury; and the attempt made, by the defendant, to get rid of the charge, under the explanation of taking compound interest, is not sufficient. The defendant does not put himself upon the benefit of the settlements made from time to time, but he, in fact, opens the accounts by his answer, and admits that the entries in the cash books were generally made by him, and that they contain the evidence of his loans. There is, also, proof of mistakes and deficiencies in the cash books, and of alterations. One mistake, for instance, of a charge, by the defendant, of 5001., on the 15 th of June, 1792, is not in the books'. Other mistakes are alleged and shown; other instances of abused confidence are charged, as taking property from Prior, without his assent. In short, there are so many unpleasant and suspicious circumstances attending this case, leading so strongly to an inference of usury, oppression, and fraud, that it appears essential to the honour of the court, and the ends of justice, that all these multiplied settlements and obligations should be set aside, and that an account, at large, from the commencement of their dealings, should be taken and stated.
The cases cited by the counsel for the plaintiff, bear very pointedly upon the circumstances of this case, and show, that there is nothing unusual in granting the relief. Thus,
I shall, accordingly, decree, in substance, as follows, viz.: “ that the accounts between the parties be opened from the 29th of November, 1790; and that it be referred to a master
Decree accordingly.
At the hearing of the cause,
Boyd, contra, insisted, that the objection came too late, the witness having been cross-examined by the defendant, before the examiner. He further offered to do away the . . , B , . , , ., . . . ,, objection, by proving, by a subscribing witness m court, the execution of a release by Prior to the assignees, dated the v e e o' 29th of March* 1803, of all his residuum of interest. This 7 7 offer was opposed, on the ground that there had been no previous notice of it.
The Chancellor directed the witness to be sworn. ty He observed that no objection was made to the competency of the ° 1 * witness until the argument was partly finished, and not until
Witness examined.
Sept. 28th.