Administrator of Hammond v. Smith

The opinion of the court was delivered by Bennett, J. To establish the fact, that the notes were void upon the ground of usury, it must have been proved that there was a corrupt agreement to pay more than six per cent, interest, at the time when the loan was made. If the testimony, given on the trial, had a legal tendency to prove this, the case should have been submitted to the jury. The evidence is not direct, that there had been, at any time, an agreement to pay twelve per cent, interest on any debt, which the defendant owed the plaintiff. An agreement of that kind is only to be presumed, or inferred, from the conversation testified to by the witness, who was upon the stand; and if we infer such an agreement, it is only by presumption that it related to the notes in question, as none other were shown on trial. Though the witness says the mortgage was spoken of during the conversation, yet it does not appear by which of the parties, or in what connection, or even any thing that was said about it. No notes were present. If, by presumption, we infer that a usurious agreement had been made, and that it related to the notes in question, then it must be presumed, in order to make a defence, that the agreement was made at the time the loan was made, and as a part of the original agreement. It is a reasonable doctrine; in relation to presumptive evidence, that one presumption cannot be based upon another. To allow of this would be highly (jangerous. In 2 Burr. 1Ü72, Lord Mansfield has said, “that there can be no presumption of the nature of evidence, in any case, without something from whence to make it, some ground to found the It is laid down [234] Chitly, in his treatise upon contracts, p. 541, that mere proof that usurious interest had been paid upon a note reserving legal interest will not establish the fact of an original agreement for usury. Though it appears in the case cited by Mr. Chitty, Fussil v. Brooks, 13 E. C. L, 145, that such evidence was given to the jury, yet it was a case at nisi prius, and no question was raised as to its competency. We think, then, that, as any usurious agreement was only established as matter of presumption from the testimony, and that, if an usurious agreement is presumed, still that it can have no relation to the notes in question,, or to the time when the original loan was made, except by presumption, the court below was justified in directing a verdict for the plaintiff. The judgment of the county court is affirmed.