Folsom v. Blake

There was no unlawful interest or usury charged on the renewal of the note for two hundred and forty-five dollars when it was increased to two hundred and eighty-six dollars and seventy-six cents ; the difference of forty-one dollars and seventy-six.cents is less than the lawful interest on two hundred and forty-five dollars from the fourth of July, one thousand eight hundred and thirty-seven to the eleventh day of April, one thousand eight hundred and forty ; being the time of the forbearance alleged in the bill. The note for two hundred and eighty-six dollars and seventy-six cents, dated the eighth of October, one thousand eight hundred and thirty-nine, at six months, is the one now in existence on *444which the suit at law is brought and which the bill seeks to' get up. If we are not to look beyond this note, there is no usury in the case. But this note had its origin in a loan of two hundred dollars on the twenty-third day of June, one thousand eight hundred and thirty-six, for which a note was then given for two hundred and fifteen dollars at four months; and which, by subsequent renewals down to the fourth day of January, one thousand eight hundred and thirty-seven, had increased, by the addition of interest, to two hundred and forty-five dollars ; in this addition to the amount would consist the usury.

Now, if there had been no further note given and the note of the fourth of January, one thousand eight hundred and thirty-seven had remained as evidence of the defendant’s demand, the case would not have come within the act of May 15,1837,. so as to entitle the complainant to file a bill, without offering to pay the principal borrowed ; but the previous excessive interest is carried forward and included in the note of the eighth of October, one thousand eight hundred and thirty-nine and by that means the latter note is tainted and subjected to the condemnation of the law of 1837, which authorizes the filing of a bill without an offer to pay either principal or interest. And the bill in this cause, in its present form, is not demurrable on account of that omission.

Still, it is not a matter of course, in all cases under this statute, to come into this court for discovery or relief. A discovery of the usury can be had on the trial at law by examining the plaintiff as a witness : § 2 of the statute ; and a defeat of the action on a note or bond will, in general, put an end to all further claim upon it.

If discovery or relief is sought in this court, the bill should contain some special grounds for coming here, such as are pointed out or adverted to by the Chancellor in Perrine v. Striker, 7 Paige’s C. R. 598. No special reasons are shown by this bill why the complainants cannot examine the defendant (the plaintiff in the suit at law) as a witness on the trial there or why a verdict and judgment in the court of law in favor of the defendants will not be a perfect protection against any further suit on the note. It does not appear that there is any *445danger or threat of negociating the note any further or passing it away to a third person to be sued in a new action.

I consider, therefore, that the demurrer must be allowed and the bill be dismissed, with costs ; but with leave to the complainants to amend their bill, if they shall be advised and pay the costs within twenty days.