Tuthill v. Davis

Platt, J. delivered the opinion of the Court. In regard to the admissibility of Cunningham, the indorser, as a witness for the defendant, I have no doubt that he was competent, and was properly admitted. His testimony went to prove, that after he had indorsed the first notes, they were used to obtain an usurious loan, by passing them to the plaintiff, who was himself the usurer, and of course [287] had notice that those notes were infected when he so received them. If the decision in the case of Winton v. Saidler (3 Johns. Cas. 185.) he still considered as sound law, it has no application to this case : there, the plaintiff was a bona fide holder, for valuable consideration, without notice of the previous usury between the former parties to the note. Skelding v. Haight, (15 Johns. Rep. 275.) and Powell v. Waters, (17 Johns. Rep. 176.) give the rule for this case. As it appears, by the testimony of Cunningham, that the note now in question was given to renew and take up the former usurious notes, then in the hands of the plaintiff, the original party to the usurious contract, without any new consideration, but including the extortionate interest of the original loan, this last note is equally infected, and of the same illegitimate progeny as the first notes; and a mere change of securities, for the same usurious loan, to the same party who committed the usury, or to a party who had notice of it, can never purge the original consideration, or give a right of action. In Cuthbert, &c. v. Haley, (8 Term Rep. 390.) it was decided, that if R. for an usurious consideration give his note to B., who transfers it to C. for a valuable consideration, without notice of the usury, and afterwards A. gives a bond to C. for the amount of the note, the bond is good. I recognise that case as sound law: and the pivot on which it turned was, that the new security was given to a bona fide assignee, who had paid a valuable consideration for the usurious note, without notice of the usury. Ellis v. Wares (Cro. Jac. 33.) also supports the same doctrine. But in this case, the plaintiff attempted to prove that judgment had been rendered in an action on the original notes, in order to show a new consideration for the Iasi note. If this liad been proved, it would have protected the plaintiff in this suit i because, after a regular judgment in an adverse suit, all parties are precluded from an allegation of usury in the contract on which such judgment has been rendered. The right to recover in this action depended, therefore, on the fact, whether a judgment had been obtained in the suit on the first notes; and there is no ground for [288] contending that the mere certificate of John Everett was competent evidence of that fact. An exemplified copy of ,the judgment was undoubtedly the proper evidence. The Judge at the-Circuit, in my opinion, ruled correctly on both points; and the defendant is, therefore, entitled to judgment on the verdict in his favour. Judgment for the defendant.