6 Vt. 551 | Vt. | 1834
The opinion of the court was delivered by
— If the plaintiff, after stating the facts, was entitled to recover on either of the counts in his declaration, on the proof which he offered, the evidence should have been admitted; and the case presents this naked question, whether giving up a security or note, which is evidence of a bona fide debt, and making that debt part of the consideration
In the case under consideration the latter security was void, and had been avoided under the statute against usury, and presents the question first mentioned. The statute of usury avoids all contracts upon which shall be reserved or taken, or agreed to be reserved or taken, for interest, above the sum of six dollars on the hundred per annum. In principle it seems to be diffiddt to malte any distinction between the cases, where the
The old cases, I think, were perfectly consistent and in strict accordance with the statute, and went no further than to determine that a contract not usurious or illegal was not affected or destroyed by any subsequent usurious collateral contract or undertaking. The case of Pollard vs. Scolly, Cro. Eliz. 20, was one of this character. The original contract was usurious, but after it became due, another contract was made to give further day of payment upon usurious interest. The first contract was not given up. In this case the usurious agreement was held to be void. The first contract was still in existence, never given up or made the consideration of an usurious contract, and was good. In the case of King vs. Allen, Sir Th. Raymond, 196, the subsequent usurious contract was avoided, leaving the first as it was before. Ferrall vs. Shaen, 1 Saund. 294, was of the same character. These cases and a variety of others have established this as a cardinal rule upon the subject of usury, that a contract which, in its inception, was unaffected by usury, can never be invalidated by any subsequent usurious transaction. Had the decisions rested here, and per
As the evidence offered ought to have been admitted, it is unnecessary, for us to decide to which of the counts in the plaintiff’s declaration it would have applied. I can see great and serious objections to any recovery on the note executed in 1828, which was given up and cancelled, though the last note has proved unavailing. In the declaration on a note, it is de= scribed and must be produced in ordinary cases. We know of no precedents for declarations on bonds or notes cancelled, destroyed or given up intentionally by the holder. The case of Hagar vs. Wheeler, 8 Cowen 77, is said to be an authority for this ; the case we have not seen, and of course cannot de