Holton v. Button

4 Conn. 436 | Conn. | 1822

Hosmer, Ch. J.

Whether usury to invalidate the plaintiff’s title, founded on a mortgage, may be proved by the defendant, without his having given notice, at the time of plea pleaded, is the question for determination.

The rule established by the supreme court of errors, 3 Day 278, is applicable to cases of two distinct classes. The last provision relates to actions “founded on express contract,” within which description it is too clear, to admit of controversy, that the plaintiff’s action, founded on a tort, cannot be embraced. By the other branch of the rule, notice is to be given, “where the defendant pleads the general issue, and intends to rely upon a defence, which, by the rules of the common law, ought to have been spread on the record, by special pleadings.”

It devolves on the plaintiff to show, that by the rules of the common law, usury, in an action of disseisin, founded on a title by mortgage, must be specially pleaded. No case nor even dictum, to this effect has been produced, or is producible. The defendant may always controvert the truth of any averment in the plaintiff’s declaration, by the adduction of testimony; and to this end, he may show directly, that the plaintiff’s supposed title is defective, or that the property is in another person, or even in himself. Dodd v. Kyffin, 7 Term Rep. 350. Argent v. Durrant, 8 Term Rep. 403. If the plaintiff could establish the proposition, that usury may never be given in evidence under the general issue, he would maintain his present objection; but the position is not maintainable. In an action on simple contract, under the general issue, evidence of usury is unquestionably admissible. 1 Chitt. Plead. 470. Lord Bernard v. Saul, 1 Strange 498. In this case, the defendant has information on the record, that the plaintiff claims title; and were it deemed necessary, there would be no difficulty in his complying with a rule requiring notice of his defence. But, how can the defendant be deemed cognisant of the plaintiff’s title, until it appears in evidence? It is not specified; nor can the defendant, by plea, bind the plaintiff down to a title, which he may think proper to display. There is no mode in which the benefit of a defence, on the ground of usury, can be had, except by the adduction of testimony, to invalidate the title on which the plaintiff shall found himself at the trial.

The notice given, in this case, was altogether insufficient, from its generality; being such in form, and not in fact. But, as there was no obligation to give notice, the testimony should have been admitted.

The other Judges were of the same opinion.

New trial to be granted.