4 Mass. 156 (Mass. 1808), Churchill v. Suter

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtParsons, C. J.
JudgeParsons, C. J. Sedgwick, J., gave no opinion.
Citation4 Mass. 156
DateInvalid date
Docket Number.
PartiesAsaph Churchill v. Henry Suter

Page 156

4 Mass. 156 (Mass. 1808)

Asaph Churchill

v.

Henry Suter

Supreme Court of Massachusetts, Suffolk

March, 1808

Page 157

[Syllabus Material]

Page 158

Assumpsit by the endorsee of a negotiable promissory note against the promisor. The action was submitted to the opinion of the Court, upon the following state of facts: --

"On the 10th of July, 1807, the defendant made a note, promising one Charles Copeland, to pay him or his order 275 dollars, in sixty days with grace, which Copeland endorsed in blank; and which, to raise money, they delivered to one Bartlett, a broker, to negotiate in the market, who also endorsed it in blank, and sold it to the plaintiff. It is agreed by the parties, that if said endorsers are incompetent witnesses to prove a usurious consideration, then judgment is to be rendered for the plaintiff, with costs."

"But if said endorsers are considered by the Court as competent witnesses to prove to a jury a usurious consideration, it is agreed that they would testify that the note was made and committed to Bartlett as aforesaid, who endorsed it as aforesaid; that said Bartlett thereupon applied to the plaintiff, offered the note, and asked him how much he would give for it; that the plaintiff replied, ninety-four per cent.; which was accepted; that said Bartlett did not inform the plaintiff that the note was originally made to sell in the market; that nothing was said concerning any rate of interest whatever; but that the whole bargain consisted in a simple offer and acceptance of ninety-four per cent. for the note; that all the persons, whose names are upon the note, were then of doubtful credit, and failed before the note arrived at maturity."

"If it shall be the opinion of the Court, that the preceding facts constitute such a usurious consideration as to vacate the note, the plaintiff is to become nonsuit; otherwise he is to recover judgment as above."

When the cause came on for argument, the Court called on the defendant's counsel to show that these witnesses are competent to show the note void for usury.

Selfridge, for the defendant, contended that by law every person, not convicted of an infamous crime, is a competent witness in any cause, in the event of which he is not interested; and he relied on the case of Jordaine vs. Lashbrooke & Al., 1 as expressly in point. The case of Bent vs. Baker & Al. in Error, 2 contains a decision similar in principle.

The great inroad made by our statute of 1783, c. 55, upon the common law, as to its rules of evidence, by admitting the party to a usurious contract to his own oath in discharge of himself from the obligation of such contract, shows the strong disposition of the legislature to prevent and punish usury, and will naturally incline the Court to give the most liberal extension to the views of the government, thus plainly expressed.

As to the 2d point made in the case, viz., whether the facts disclose a usurious contract, the statute before referred to declares that all contracts and assurances whatsoever, on which there has been, directly or indirectly, reserved or taken above the rate of six per centum per annum, shall be utterly void. In this case, the broke was the agent of the maker of the note, and the corrupt transaction was therefore directly between the parties, on the maxim, Qui facit per alium, facit per se. And there cannot exist a doubt that this would have been usury, if Suter had sold this note himself to the plaintiff. If the wholesome provisions of the act can be evaded by the artifice practised in this case, it may as well be expunged from the statute-book. 3

Churchill cited the case of Walton vs. Shelley, 4 and he argued that the principle of that decision being common law at the time the constitution of the state was framed, and the constitution having adopted the common law generally, as it then existed, except so far as the same should be altered by the legislature, this Court was bound by that decision, however its principles may have been since controverted in the courts of Westminster Hall. Added to which, the general practice of our own courts has conformed to the principle established in that case, and a uniform practice is not to be shaken on light grounds.

To admit this kind of testimony is to throw out a lure to perjury Most of the money transactions in the state are conducted in the manner stated in this case. The uniform practice of the banks in discounting bills and notes would be overthrown, and the most mischievous effects would follow, if this testimony should be admitted to set aside a contract thus fairly made.

The case of Jordaine vs. Lashbrooke & Al. turned wholly on the hazard to which the revenue would be exposed, unless the evidence was admitted.

In the case of Hart vs. M'Intosh, 5 Buller, J., adhered to the rule laid down in Walton vs. Shelley and rejected the testimony of a witness produced to defeat a security, to which he had given credit by his endorsement.

Parsons, C. J. Sedgwick, J., gave no opinion.

OPINION

Page 159

The Court took time for advisement, and their opinion was afterwards delivered as follows by. Parsons, C. J.

This is an action of the case on a promissory note, sued by the endorsee against the promisor.

The parties have stated a case, and have submitted to the Court to enter judgment according to the law resulting from the facts thus disclosed.

The defence is usury, and two questions are made for the decision of the Court, viz.: 1. Whether, in this action, the endorsers are competent witnesses to prove the contract usurious; and, 2. If they are, whether, from the facts disclosed by their testimony, the contract is usurious.

As to the first question, the defendant has argued that the endorsers are competent witnesses; because they are not interested in the event of the suit, and have not been sentenced for any infamous crime.

The plaintiff admits the general rule advanced by the defendant; but he has argued that there are exceptions to that rule, and among them it is one, that the parties to a negotiable security shall not be admitted as witnesses to prove the security originally void.

Let us consider this question as supported by the authority of adjudged cases. The first case, in which it is determined that witnesses of this description, and for this purpose, should be admitted is Jordaine vs. Lashbrooke & Al. In that case, the endorsee held a bill of exchange unstamped,...

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87 practice notes
  • 1 S.W. 547 (Ark. 1886), Millington v. Hill, Fontaine & Co.
    • United States
    • Supreme Court of Arkansas
    • October 2, 1886
    ...a promissory note be made on a usurious contract, it will be void, even in the hands of a bona fide holder for a valuable consideration. 4 Mass. 156; 2 Bag., 23; 8 Conn. 669; 2 N.H. 410. One agreeing to pay, or give new security for, the usurious note of another, may avoid it for original u......
  • 62 Me. 194 (Me. 1873), Abbott v. Rose
    • United States
    • Supreme Judicial Court of Maine (US)
    • Invalid date
    ...differently settled in different States. In Massachusetts the question came before the courts in the early case of Churchill v. Suter, 4 Mass. 156, and has been discussed in many cases in that Commonwealth, and in our own State since that time. Manning v. Wheatland, 10 Mass. 505; Pickard v.......
  • 32 Mass. 423 (Mass. 1834), Hudson v. Hulbert
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • Invalid date
    ...point that the administrator was a competent witness, Loker v. Haynes, 11 Mass. 498; Worcester v. Eaton, 11 Mass. 368; Churchill v. Suter, 4 Mass. 156; Bank of Utica v. Hillard, 5 Cowen 152; Stafford v. Rice, 5 Cowen 23; Williams v. Walbridge, 3 Wendell 415; Jordaine v. Lashbrook, 7 T. R. 6......
  • 31 Iowa 444 (Iowa. 1871), Dickerman v. Day
    • United States
    • United States State Supreme Court of Iowa
    • Invalid date
    ...Repelye Page 448 v. Anderson, 4 Hill 472; Holmes v. Williams, 10 Paige 326; Holford v. Blatchford, 2 Sandf. Ch. 149; Churchill v. Suter, 4 Mass. 156; Lloyd v. Keach, 2 Conn. 175; French v. Grindle, 15 Me. 163; Farmer v. Sewall, 16 Me. 456; May v. Campbell, 26 Tenn. 450, 7 Hum. 450; Salt Mar......
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62 cases
  • 42 Mass. 416 (Mass. 1840), Thayer v. Crossman
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • Invalid date
    ...v. Walbridge, 3 Wend. 415. Townsend v. Bush, 1 Connect. 260. Baird v. Cochran, 4 S. & R. 397. If the decision in Churchill v. Suter, 4 Mass. 156, which will be relied on by the plaintiff, is not to be overruled, yet it will not be extended. The rule adopted in that case applies only to ......
  • 31 N.H. 426 (N.H. 1855), Doe v. Burnham
    • United States
    • New Hampshire Superior Court of New Hampshire
    • Invalid date
    ...void by statute, such as gaming, or usurious, or other notes, will be void in the hands of an innocent indorsee. Churchill v. Suter, 4 Mass. 156; Bayley v. Taber, 5 Mass. 286; Bridge v. Hubbard, 15 Mass. 96. The note in question, we apprehend, stands upon the same ground, and being absolute......
  • 32 Mass. 423 (Mass. 1834), Hudson v. Hulbert
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • Invalid date
    ...point that the administrator was a competent witness, Loker v. Haynes, 11 Mass. 498; Worcester v. Eaton, 11 Mass. 368; Churchill v. Suter, 4 Mass. 156; Bank of Utica v. Hillard, 5 Cowen 152; Stafford v. Rice, 5 Cowen 23; Williams v. Walbridge, 3 Wendell 415; Jordaine v. Lashbrook, 7 T. R. 6......
  • 9 N.H. 336 (N.H. 1838), Marston v. Brackett
    • United States
    • New Hampshire Superior Court of New Hampshire
    • Invalid date
    ...5 Cowen 23, Stafford vs. Rice; ditto 153, Bank of Utica vs. Hilliard; 3 Wendell 416, Williams vs. Walbridge. And Churchill vs. Suter, 4 Mass. 156, although not overruled, has been somewhat qualified in its operation by Fox vs. Whitney, 16 Mass. 121. Upon the motion for a trial by jury, we a......
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