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Troutman vs. Barnett and others.

oppressive terms. The law mercifully restrains both the power and the cupidity of the creditor, by limiting interest upon loans and all contracts to a fixed rate-seven per centum—and to insure against cruel exactions, makes lawful interest irrecoverable, if more is contracted to be paid. Does not the reason apply in this case? Here the plaintiff pays no money in hand to the defendant, but he gives time upon money due, in consideration of usurious interest-he forbears day of payment, because the debtor has paid him usury. It does not differ from an original loan. The money due on the judgment belongs to the plaintiff; it is in the hands of the defendant. It is the same in principle as if the plaintiff had said to the defendant, "you have in your hands so much money which belongs to me; if you will pay me so much interest per annum, you may retain and use it for a year." To which the defendant agrees, and the contract is closed. Is not that an ușurious contract? It is not questioned but that it is, and if remaining executory, could not be enforced. The agreement to pay usury thus, could be defeated by the plea of usury, and clearly, under the old law, would subject the lender to the forfeiture; and if executed, as it was here, very clearly, the usury may be recovered back. But the inquiry goes farther and reaches deeper. Is it not such a new contract as merges the judgment, and defiles that with the taint of usury? The money due on the judgment is the basis of the new contract; it is for the use of that money that the defendants pay the usury; it is in reference to the judgment that the parties contract; it is about it that they "covenant." Now, if, under the old law, such a transaction would subject the plaintiff to the forfeiture, and it clearly would, I enquire, what would be, in such a case, the forfeiture? It would be treble the value of the money loaned! And what is the money loaned? Why, the sum due on the judgment. Under the new law, the contract has the same relation to the judgment, which it would have under the old law, so far as the interest is concerned. If so, is not the interest forfeited? That is not collectible under the new law. If, under the circumstances, the lender moves (not upon the judgment, for that was extinguished by giving the notes, but upon those notes) to collect

Troutman vs. Barnett and others.

his money, is he not fairly met by a plea of usury under our Statute? The notes are but a continuation of the subsequent agreement, by which usury was contracted to be paid, and which agreement drew after it the judgment. However, as I concede, this reasoning may be obnoxious to some technical objections, yet, I am satisfied that it is fairly drawn from the Statute, and certainly, in strict conformity with its policy. That policy is to inhibit the taking of usury, under every and any pretence or contrivance. Note, too, that in this case, the lender occupies, above all others, the position most commanding for taking advantage of the necessitous condition of the borrower. He holds him under execution-one more turn of the screw, and he is crushed. If the Statute of usury cannot prevent the enforcement of this contract, then it needs no argument to show that it is impotent to effect the very object of its enactment.

But let us apply the Statute with more closeness to this transaction. This judgment is an evidence of a debt due; it is, I admit, the evidence of a debt due upon the primary contract; but what is it under this new arrangement-this subsequent contract? It is an assurance of the debt at the time of this subsequent contract, recognized by the parties. It is agreed to be collectible by the plaintiff at the end of a given term of time, and for not collecting it before, the usury is paid. How is this new contract evidenced? By the note given for 15 dollars of usurious interest, and by the judgment. The plaintiff is assured in his principal and lawful interest by the judgment, and he takes a note separately for the usury. Now, by the Statute, all assurances for the payment of money to be lent, covenanted or performed upon, or for any usury whereupon or whereby there shall be reserved or taken above the rate of seven per centum per annum, shall be void and of no effect, except to authorize the recovery of the principal, &c. Does not the Act embrace the transaction? It seems to me that it does. It is within its spirit and its policy, beyond all question; and if so, no rule of the Common Law is applicable to it. The Statute is our guide.

Let the judgment be affirmed.

Barnett vs. Troutman and others.

No. 6. SAMUEL B. BARNETT, plaintiff in error, vs. JOHN F. TROUTMAN et al. defendants.

[1.] In an action against the security of a note, to which the defence was usury: Held, that the maker, upon being relieved from all liability, was a competent witness for the defendant.

Certiorari, to Crawford Superior Court. Decided by Judge STARK, at February Term, 1850.

John F. Troutman commenced four actions in a Justice's Court, in Crawford County, against Samuel B. Barnett, upon notes made by one Arthur F. Walker, as principal, and Barnett, as security, to which Barnett pleaded payment and usury.

On the trial before the Jury, having first released him from all liability on account of the notes, Barnett sought to introduce Walker, his principal, as a witness, to establish his pleas. The Justices held that he was incompetent. From this decision, a certiorari was taken to the Superior Court, upon the hearing of which, Judge Stark affirmed the decision of the Justices, and dismissed the certiorari, and counsel for plaintiff in error excepted.

GREENE and CULVERHOUSE, for plaintiff in error.

STRONG and HAMMOND, for defendants in error.

By the Court.-LUMPKIN, J. delivering the opinion.

[1.] In Winkler vs. Scudder, (1 Kelly, 108,) this Court held, that the maker of a note, who is released, is a competent witness to prove usury in its consideration, in a suit by an indorsee against an indorser. Here, the action is by the payee against the security. Of course there can be no distinction in principle between the two cases.

In Starkweather vs. Mathews and others, (2 Hill's N. Y. Reps. 131,) this identical question is decided. The Supreme Court of New York there held, that in an action against the maker of a

Brewer vs. Bowman.

note, and his accommodation indorsers, to which the defence was usury, that the former, upon being released from all costs and charges on account of the suit, was a competent witness for the latter.

In the case before us-the maker not being sued, or at any rate, served we are inclined to think that he was competent, even without a release. If the defence failed, he would be answerable to the security for the amount of the note; and if it prevailed, he would still be liable, as maker to the plaintiff. His interest was balanced. At any rate, there can be no doubt of his competency with the release.

No. 7.-THOMAS A. BREWER, plaintiff in error, vs. JNO. BOWMAN, defendant.

[1] The Act of 1834, authorizing the Inferior Courts of the several Counties in this State to grant the right of private ways, in certain cases, containing no provision for making any just compensation to the owner of the lands, which might be taken for such private ways: Held, to be unconstitutional and void.

In Equity, in Bibb Superior Court. Decided by Judge STARK, at Chambers.

John Bowman applied to the Inferior Court of Bibb County, in 1848, in accordance with the Statute of 1834,* to appoint

*An Act to authorize the Justices of the Inferior Courts of the several Counties in this State to grant the right of private ways, in certain cases:

Be it enacted, &c. That from and after the passage of this Act, the Inferior Courts of the several Counties in this State are hereby authorized and empowered, on application, (whenever, in their opinion, it shall seem reasona ble and just,) to grant settlement roads or private ways to individuals, to go from and return to his, her or their farm or place of residence

Brewer vs. Bowman.

commissioners to lay out and establish a private way for his use and benefit, from his plantation, on the Ocmulgee river, in said County, to the Forsyth road. The order was granted, and the road established accordingly. Afterwards, Thomas A. Brewer, through whose land the said private road passed, obstructed the same by erecting a gate, thereby preventing its use by Bow

man.

Bowman applied to the Superior Court for an injunction to restrain Brewer from obstructing the road, which was granted by Judge Stark.

Upon the coming in of the answer of defendant to complainant's bill, counsel for the defendant moved the Court to dissolve the injunction and dismiss the bill, which motion was overruled by the Court, and defendant, by his counsel, excepted.

HINES and HALL, for plaintiff in error.

POWERS and WHITTLE, for defendant.

By the Court.-WARNER, J. delivering the opinion.

In May, 1848, Bowman obtained an order from the Inferior Court of Bibb County, to establish a settlement or private way, from the Forsyth road to his plantation on the Ocmulgee river.

This road passed over the land of Thos. A. Brewer, who obstructed the use of it by the erection of a gate across it.

SEC. II. Whenever application is made to the Inferior Court by any individual, for a road or way, as aforesaid, it shall be the duty of said Court to appoint three disinterested men in the district where the applicant wishes the road or way to run, whose duty it shall be to go and mark out a suitable road or way, having due regard to the least possible injury to the land through which said road or way is intended to be run, and return to the next Inferior Court, for County purposes, the situation and nature of the case.

SEC. III. When said return is made, it shall be the duty of said Court to grant such order to the applicant as they may think proper; so as to allow to him, her or them, a way to pass out and in from and to his, her or their farm or place of residence.

(The remainder of the Act provides for the punishment of those who may obstruct such road or way.)

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