10 Ga. 389 | Ga. | 1851
By the Court.
delivering the opinion.
Our investigation in this case, will be restricted to the single inquiry, whether the verdict of the Jury was contrary to evidence ? In other words, whether upon any hypothesis consistent with the proof, the finding of the Jury can be sustained?
In order to ascertain this satisfactorily, it becomes necessary to settle several important points of law ilii^iltoflffiuiiil^iL ij
Under this Statute, it is contended that before the answers of the plaintiff to the interrogatories can be read by the defendant, in support of his plea of usury, he must offer to pay the principal and legal interest due by him — indeed, that he impliedly consents to do this, by resorting to the conscience of the adverse party for proof.
We fully recognize the doctrine in Chancery, that whenever a borrower files his bill in Equity, to be relieved against a usurious contract, the Court refuses relief, except upon the terms of his paying up the principal sum due, and legal interest. It is
We take the Act according to its obvious and literal meaning ; and the Legislature, neither in this Statute nor that passed previously, in 1842, (New Digest, 601,) compelling the plaintiff to discover usury on oath, having made, the payment of the money lent with lawful interest, a condition to the reading of the evidence, we do not feel at liberty to superadd it.
It will be readily perceived how much the result in this case, depends upon our opinion upon this point.
Now the Statute declares, that the answers to the interrogatories are to be evidence “ to the same extent in all respects as if the same bad been procured upon a bill in Chancery for discovery.” But an answer in Equity is conclusive, when responsive to the bill, unless contradicted by two witnesses or one witness and circumstances.
If, then, the Jury arrived at the result which they did, by adding this first debt of $1000 to the last loan of $2000, and deducting from the aggregate the $2000 paid in property and paper, and the $396 credited on the last note of $2498 — and such is not unlikely the fact — then the verdict is contrary to the evidence and ought to be set aside; for the Jury had no right to assume, in face of the proof, that any portion of the $1000 note was left unextinguished, by the settlement between the parties, in January, 1842.
With these principles adjusted, how stands the case ? The plaintiff lent the defendant $1000 in 1838, which compounded annually, at 16 per cent, amounted to $1863 77, in January, 1842, the date of the settlement. The payment of two thousand dollars, made at that time, discharged this debt, and left a balance of $136 23, to go to the $2000 loaned in March, 1840. This balance, and the $396 endorsed upon the note in suit, is all, according to the proof, that should be deducted from the $2000 in the way of payments. It is true that the plaintiff admits that in addition to these, some small sums were received, the amount of which he cannot recollect, and they may be well set off by the blacksmith’s work done, by him for the defendant; add the two items together, then, of $396 and $136 23, making $532 23, and subtract the aggregate from the $2000, and the verdict should have been for $1467 73, instead of $630 75.
This affords another striking illustration of the defect in our Judiciary Act, which sends parties to the Jury upon the written declaration and answer, all the subsequent pleadings being conducted orally. But take the most favorable view of the case for the defendant, namely, that the Statute was not replied in bar of the set-off, for usurious payments, and grant that the Jury allowed the full amount of the usury paid, $631 88J, still the verdict should have been for $1035 84J; and in all these' estimates, I have assumed that the Colbert note amounted to $700, as testified to by Colbert himself, and not $600, as stated by the plaintiff in his answers.
Of course, I only allow the defendant to recover back, in his plea of set-off, the usurious gain; for it is well settled, both in England and in this country, that if a borrower pays up the amount of his usurious debt to the lender, and afterwards sues to recover it back, in an action for money had and received, he can only recover the usurious excess, since ex osquo et lino, he ought not to recover back the money really advanced, and the legal interest thereon. 1 T. R. 153. Douglass, 697, in notes. 2 Johns. Ch. R. 191. 5 Johns. Ch. R. 146. 6 Johns. Ch. R. 95. 1 Leigh, 147.
In addition to the two sums of $1000 and $2000 loaned to the defendant, the plaintiff let him have cotton on the 11th of June, 1840, valued at $668 44, which the plaintiff contends is still unpaid, and made up a part of the present large note; but