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VAIL

V.

May Term, Lawrenceburgh, in the presence of the plaintiff, and not in 1860.

Cincinnati; that the plaintiff, who discounted it, did, usuri

ously, corruptly, and contrary to law, reserve, contract for, Herstis. and receive interest upon the principal of the bill, at a

greater amount than six per cent. per annum; viz., at the rate of two per cent. per month in advance, and that the amount so paid to the plaintiff for interest reserved, amounted to the sum of 60 dollars; that the bill was dated Cincinnati, Ohio, for the purpose of evading the laws against usury, and was drawn, accepted, and indorsed by the defendant, upon and for the loan of a sum of money, viz., 750 dollars, which was then and there loaned by the defendant to the plaintiff, &c.

Reply in denial of the second paragraph.

The Court tried the cause, and found for the plaintiff 756 dollars, 72 cents; and having refused a new trial, rendered judgment, &c.

Upon the trial, the plaintiff gave in evidence the bill of exchange; proved that it was duly presented for payment; that it had been regularly protested for non-payment; and that notice of protest had been duly given; and rested.

And thereupon the defendant, to sustain his second defense, introduced the plaintiff, who testified substantially as follows: Vail, the defendant, was a member of the firm of Bates, Neil, and Vail, who were partners in a railroad contract. He was their financial partner; attended to selling their real estate, and raising money with which to carry on their contract; had frequently requested plaintiff to purchase bills on said firm, offering to sell them at a certain amount off their face, which was always equal to two per cent. per month. On the day the bill in question was drawn, Vail met plaintiff on the street; said he wanted to raise money-to sell plaintiff a bill on Bates, Neil, and Vail; and they went to Vail's house in Lawrenceburgh, where, in his own handwriting, he drew, accepted, and indorsed the bill, and proposed to allow plaintiff two per cent. per month, which was deducted from the face of the bill. He first proposed to date the bill at Lawrenceburgh, and make it payable in Cincinnati, Ohio; but plaintiff ob

V.

jected, for the reason that he did not understand doing May Term, business in the banks in Cincinnati. The bill was then

1860. drawn, accepted, and indorsed, as it stands. Plaintiff, in VAIL his testimony, says that the transaction was the purchase Heustis. of the bill, and not the loan of money.

The statute is that "interest upon the loan or forbearance of money," &c., “shall be at the rate of six dollars a year upon one hundred dollars; and no greater rate of interest shall be taken directly or indirectly," &c. 1 R. S. p. 343, § 1.

Thus, it will be seen that the amount, in this instance, deducted from the bill, was more than the statutory rate of interest. Hence, the inquiry arises, was the sum actually received by the defendant a loan of money?

The instrument in suit is in the form of an ordinary bill of exchange, and the plaintiff had a right to purchase it at any rate of discount agreed on by the parties, unless the evidence shows that it was not, in its inception, a real transaction, but a mere device to evade the statute. If it was, then the money advanced on the bill was, in contemplation of law, a loan to the defendant.

But it is argued that the payee could not have maintained an action on the bill at its maturity; and that, therefore, it was not a real transaction. This reasoning does not seem to be correct. The proof is, that the defendant was the financial partner of the firm of Bates, Neil, and Vail, and as such was authorized to raise money to carry on the railroad contract; and, in the absence of contrary proof, it may be inferred that, for such purpose, he had a right to draw a bill upon the firm, to his own order, and accept it in their name. The question whether the payee could or could not have sued on the bill, is not material, because when indorsed it became operative in the hands of the indorsee. Edw. on Bills, pp. 186, 187.

But whether the transaction, in this case, was or was not “a loan of money," was a pure question of fact properly submitted for trial under the pleadings. And the Court, sitting as a jury, having in effect decided that it was not a

VOL. XIV.-39

May Term, loan, we are inclined, in view of the evidence, to sustain 1860.

its decision. Vail Per Curiam.— The judgment is affirmed with 3 per cent. Heustis. damages and costs.

J. Schwartz and P. L. Spooner, for the appellant.
D. S. Major, for the appellee.

V.

AN INDEX

TO THE PRINCIPAL MATTERS

CONTAINED IN THIS VOLUME.

A.

ABATEMENT.

See PLEADING, 5.

ACCESSORY AND ACCOMPLICE.

See CRIMINAL LAW, 8, 12.

ACKNOWLEDGMENT.

See DEED, 1.

ACQUITTAL.
See CRIMINAL LAW, 43; JURY, 1.

ACTION.

1. Assumpsit lay to recover the stipulated price due on a special contract not under seal,

where the contract had been completely executed, so that only a duty to pay the money
remained, and it was not necessary, in such case, to declare upon a special agreement.

This rule is applicable to pleadings under the code.—Brown v. Perry, 32.
2. The abolition of the distinction between actions at law and suits in equity, does not enti-

tle a party to recover in a case where, before such abolition, he could not have recovered

either at law or in equity.-Woodford v. Leavenworth, 311.
See JOINDER OF CAUSES OF Action; JUDGMENT, 5, 6; MALPRACTICE OF A PHYSICIAN;

MARITIME LIENS; SUBTERRANEAN WATERS; USE AND OCCUPATION.

ADJOURNMENT.

See PRACTICE, 8.

ADMINISTRATORS.

Soo EXECUTORS AND ADMINISTRATORS.

ADMISSIONS.
The adınissions of a party must be received with caution by the jury, particularly when the

witness can only give part of them.-Chandler v. Schoonover, 324.

ADULTERY.

An affidavit charging a person with living in open and notorious adultery or fornication,

must allege a living together. Occasional illicit intercourse between the defendant and the
woman named, is not sufficient ground for the charge.—The State v. Gartrell, 280.

See INTERROGATORIES, 1.

ADVERSE POSSESSION.
1. A rightful title is not necessary to constitute an adverse possession such as will sustain the

plea of the statute of limitations. Possession under claim or color of title is sufficient.
The fact of possession and the quo animo it commenced, are the only tests.—Doe er dera.

Dunn v. Hearick, 242.
2. Possession taken and continued in good faith, under an assertion of right and a claim of

title believed to be good, may be adverse, though the claim of title be under a sale for taxes

prior to which the land sold was not advertised.-Ibid.
3. When a purchaser of land from the United States, has made the final payment and is enti-

tled to a patent, he is the equitable owner of the premises; and if an adverse possession be
set up, the statute of limitations will run against such purchaser; for after becoming enti-
tled to a patent, he might at any time obtain possession of the premises by a suit in equity.
-Ibid.

AFFIDAVIT.

What must be charged.]

See ADULTERY.
For Rehearing.)

See APPEAL, 5.
According to Belief, good.] See ATTACHMENT, 4; INFORMATION, 5.
Of Malicious Injury.]

See CRIMINAL LAW, 34.
Who may Certify.]

See FOREIGN COMMISSIONERS.
For Attachment.)

See PLEADING, 10.
Of Jurors.)

See PRACTICE, 1; VERDICT, 3.
To set aside Default.)

See PRACTICE, 20.
Of lost Note.)

See PROMISSORY Notes, 12, 13.
of Publication.]

See RAILROAD COMPANY, 3.
See CONTINUANCE, 1, 4; INFORMATION, 2; New TRIAL, 2 to 8; USURY, 4.

AGENCY.

An agent is a competent witness to prove his authority where it is given by parol.- of a
al. v. Smith, 360.

See DEPOSIT.

AMENDMENT.

Where the proof varies from the averment, the pleading, being amendable below, will be con-
sidered as amended in the Supreme Court.— Cleaveland v. Roberts, 511.

Sce Error; EXECUTORS AND ADMINISTRATORS, 6.

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