Andrews v. Poe

• Decision Date: 07 May 1869
• Citation: 30 Md. 485
• Parties: HERCULES R. W. ANDREWS v. NEILSON POE.
• Court: Maryland Court of Appeals

30 Md. 485

HERCULES R. W. ANDREWS v. NEILSON POE.

Court of Appeals of Maryland

May 7, 1869

APPEAL from the Circuit Court of Baltimore City.

The cause was argued before STEWART, GRASON, MILLER ALVEY and ROBINSON, J.

Julian I. Alexander and Thales A Linthicum, for the appellant.

John P. Poe, for the appellee.

ROBINSON J., delivered the opinion of the Court.

It appears that the failure to send up the record within the time prescribed by law, was, in this case, the fault of the clerk of the Circuit Court, and the motion to dismiss the appeal must, therefore, be overruled.

The objection to the deed of November 4th, 1862, for want of a stamp, comes too late. The 95th section of the Act of Congress of 1862, which declared all instruments of writing " invalid and of no effect," unless duly stamped, was repealed by the Act of 1863, ch. 4, and in lieu thereof, it was provided that such instruments should not be received or used in evidence. The objection being, therefore to the admissibility of the deed in evidence, it ought to have been made in the Court below, and cannot now be made for the first time in the appellate Court. Sec. 26, Art. 5, of the Code. The question as to the power of Congress to say what shall or shall not be received in evidence in the State Courts, was not discussed in the argument, and upon it we express no opinion.

This brings us to the two leading questions in this case--was the loan by the appellant to Gaehle usurious, and if so, can the appellee, as the assignee of the equity of redemption, claim an abatement for the excessive interest?

The respondent admits, in his answer, the loan of the $6,000--the execution of the mortgage by Gaehle to secure the payment of the same with interest, and that at the time, and in consideration of the loan, he received $720 in excess of the legal interest, making in fact ten per cent. per annum, four of which was paid in advance. Now, what more is necessary to constitute usury?

The appellant may have passed his check for the $6,000, and the mortgage may read six per cent. upon its face, and the loan may have been negotiated for Gaehle by a broker, but what boots it, when it is admitted that at the very time when the check was passed, the appellant received back $720? Did Gaehle, in fact, ever receive but $5,280, and can a Court " wink so hard" as not to see in such a transaction an attempt to evade the provisions of the law? Now, if there be a principle clearly established by judicial decision, it is that the laws against usury ought to be strictly enforced. Such, indeed, has been the uniform course of decisions under statutes penal in their character, and by which the usurious contract was wholly avoided, or the usurer visited with the penalties of the law; and there is certainly no reason...