2 N.C. 336 | Sup. Ct. N.C. | 1796
Lead Opinion
Upon evidence it appeared that disputes existed between the plaintiff and defendant relative to a tract of land; that they agreed to submit these disputes to arbitration; that the arbitrators awarded Glisson to give possession of the land to Newton at a prefixed day, and that on the *262 same day Newton should pay £ 90 to Glisson. On the day appointed, Newton being unable to pay the money, proposed that Glisson should give time for payment, about eleven months longer; for that forbearance he would give a premium of $25, and, moreover, pay the legal interest. This proposal was accepted by Glisson. Whereupon, the bond in question was drawn, payable at a day about eleven months from the date, and Newton paid down $15, and gave a separate note for the balance of the $25. We wish for time to consider of this question, and that a special verdict or statement of facts in some form may be made that will put it in our power to pass judgment hereafter, when we shall have had time to look over the authorities cited, as well as any others that may tend to throw light upon the subject. This was agreed to by the counsel, and a special verdict found, which stated the above facts. After some days taken to consider, the Court gave judgment.
Addendum
We have considered of this case with attention, and have looked over the authorities upon the subject, as well those cited at the bar as also a case in 3 Term, 353, and other cases found in the different Reporters. We have, in fact, been averse to declaring this to be a case of usury within the act, because in that event the principal sum secured by this bond, which is a just debt, will be lost as well as the unlawful interest secured by the note; but the authorities in the books are too strong to be surmounted. Any shift or device whatsoever to take more than the interest allowed, and particularly the device of securing the principal and interest by distinct assurances, is incompetent (338) to the purpose of taking the case out of the operation of the act. If the contract itself is upon the whole face of it a contract to have a greater premium than the law allows, it is void, whether it remains a parol contract or becomes clothed with legal solemnities; as is also every security or assurance founded upon it, whether one only, or *263 more. This is the true meaning of the act. Without any adjudged case, we should be bound to decide in the same manner. Were the act to be evaded by so simple a contrivance as that of taking two securities, the one for principal, the other for the unlawful premium, it would answer no purpose whatever. The $13 received is above the rate allowed by law; and should we decide that the contract is not usurious, so as to avoid the bond, immediately the defendant may sue for the double value, upon the last clause of the act. Wherefore let judgment be for the defendant; and it was entered accordingly.
See Carter v. Brand,
