Tappan v. Sargent

13 N.H. 429 | Superior Court of New Hampshire | 1843

Parker, C. J.

These pleadings are quite irregular. The attempt, by the rejoinder, to frame an issue to the country, upon the matter of the replication, is without principle or precedent to support it, and the motion for its rejection must therefore prevail. Where the defendant pleads usury, under the statute, with a verification by his oath, neither party can, in a subsequent pleading, change the course of the trial by tendering an issue to the jury.

But this is not the only exceptionable matter in the pleadings.

The statute provides that the defendant may set forth the usury taken, and verify the plea by his oath. In ordinary cases, therefore, the plea should be signed by the defendant, who is to verify its contents, and not by attorney. There are cases in which such a plea may be verified by the oath of one who is not a party to the record. As, for instance, where, upon a joint and several note, usury has been paid by one of the makers, after which the other is sued alone. The party sued may plead the usury, and tender the oath of the one , not sued, and who alone may have knowledge of the fact, in support of the plea. So where a note has been negotiated, and, upon suit by the indorsee, the defendant pleads usury taken by the indorser, the plaintiff may deny the usury, and tender the oath of the indorser in verification. These cases are not within the precise words of the statute, but have been considered within its spirit and meaning ; for otherwise the defendant, in one class of cases, might be deprived of the advantage of the plea, there being no witness who could show the matter to the jury, upon an issue to the country; and the plaintiff, upon a plea being filed, in the other class, must submit to the deduction prayed for, because he had no knowledge upon the subject which would enable him to avail himself of the ordinary replication, and he could not, upon a plea to be verified by the oath of the defendant, make up an issue to the jury.

When the pleading of either party is thus to be verified by a third person, and the matter of verification must therefore come in by way of affidavit, additional to the pleading of the party, there is perhaps no very substantial objection to a signature of the plea by the attorney, instead of the party. But in this case the defendant, whose oath is offered in verification of the plea, is a party to the record, and there is no reason therefore for a departure from the ordinary course.

The matter of the replication is objectionable. When the defendant has filed a plea of usury in due form, and will verify the plea by his own oath, (or that of the party to the instrument who made the usurious contract) the statute requires the court, in rendering judgment, to deduct from the sum found lawfully due, three times the amount of the usury taken or secured, unless the plaintiff (or trie party to the contract who is alleged to have taken the usury) will swear that he has not, directly or indirectly, willingly taken or received more than after the rate of six per cent, for forbearance, and that there is not secured by the instrument or contract more than that rate.

But it has been held that if usury has been taken, buff to a less amount than that stated in the plea, the creditor may set forth the amount actually received, and swear that he has not taken or secured any more than the sum so admitted. The plaintiif does not bring his case within the rule. He alleges that at the time of the loan, not having the money, he was induced by the defendant Sargent to procure it, and, as a compensation for his trouble, Sargent promised to allow him one and a half per cent, annually, till the amount should be repaid j and that at two different times, when the interest was paid, he received the sum of three dollars each time, “ being the one and a half per cent, per annum, and being the sum paid in pursuance of said promise, and for no other purpose.” Notwithstanding all that is thus stated, the contract may have been made in this form merely to cover the taking of usury. The facts set forth are certainly not inconsistent with such a supposition. The mere trouble of procuring the money, for the benefit of the defendant, would seem to be much the same whether the payment was delayed one or three years. But the compensation, according to the replication, was to be made by the payment of an annual, sum, during the time the loan was forborne, over and above the annual interest. The court, upon this replication, cannot say, however, that this money was actually taken for forbearance; and the plaintiff does not in the language of the statute say that he has not directly or indirectly, willingly taken and received more than at the rate of six per cent, for the forbearance of the loan. If it could be considered a denial of the matter of the plea, it would be only by ivay of argument, or inference, which is not sufficient.

After the statements already adverted to, the plaintiff says that there is not, directly or indirectly, or unlawfully, anything reserved, secured or taken, in and by the note, more than after the rate of six per cent, per annum, for forbearance, other than he had above set forth. But it is not alleged in the plea that any unlawful interest had been reserved or secured in the note. This averment, therefore, does not meet the matter of the plea.

Rejoinder rejected.