Draper v. Emerson

| Wis. | Sep 15, 1867

Dixon, C. J.

The case of Platt v. Robinson, 10 Wis., 133, and others following, cited by counsel for respondents, stood upon the peculiar phraseology of the statute, sec. 2, chap. 55, Laws of 1856. The repeal of that section, and the substitution of sec. 6, chap. 160, Laws of 1859, evinced an intention on the part of the legislature to change the rule. Section 6, last cited, was adopted from New York, in which state it had received a well settled judicial construction, which was, that the remedy given by it was limited to the person actually borrowing the money, etc., and to those standing in his place in a representative capacity, as heirs-at-law, sureties, devisees, executors and administrators. Any other person seeking to avoid the contract on the ground of usury, could do so only by paying, or offering to pay, the sum actually loaned, with lawful interest; and if such person filed his bill in equity for relief against the contract, he must aver such payment or offer to pay according to the established practice of the court, or Ms bill was demurrable. See Post v. The President, etc., of the Utica Bank, 7 Hill, 391, and other cases cited by counsel for appellant. It is a settled rule in the construction of statutes, that where a statute has received a judicial construction in another state, and is then adopted, it is taken with the construction which has been so given to it. Such is the presumed intention of the legislature. We have no doubt that this is a case within the general rule in equity, and that the complaint is defective in not averring either a payment or an offer to pay the principal sums loaned, with legal interest.

The motion to dissolve the injunction for insufficiency of the complaint, should have been granted.

By the Gourt. — Order reversed. '