Persons v. Hight

• Decision Date: 31 May 1848
• Docket Number: No. 51.,51.
• Citation: 4 Ga. 474
• Parties: Thomas F. Persons, plaintiff in error. vs. Henry Hight, defendant.
• Court: Georgia Supreme Court

4 Ga. 474

Thomas F. Persons, plaintiff in error. vs. Henry Hight, defendant.

No. 51.

Supreme Court of the State of Georgia

MAY TERM, 1848.

Assumpsit, &c. in Warren Superior Court, tried before Judge Sayre, April Term, 1848.

The following Bill of Exceptions, upon which error was assigned, will disclose the facts of this case:

Thomas F. Persons, Adm'r.

vs.

Henry Hight.

Assumpsit in Warren Sup. Court.

Be it remembered, that this cause came on for trial at the present April term, for the year Eighteen Hundred and Forty-Eight, and issue was joined upon the pleas of the general issue and usury, plaintiff, in suport of his action, read in evidence a promissory note, in the word and figures following:

$2660.83.

One day after date, we, or either of us, promise to pay John Persons, or bearer, the sum of Twenty-Six Hundred and Sixty dollars, ⁸³/₁₀₀ cts., for value received of him this the 6th of September, 1843. Henry Hight,

Fielding Hill.

(Reverse.)

January 16, 1845. Then received One Hundred and Eleven Dollars and Sixty-Four Cents on the within note.

Received One Hundred Dollars on the within note. February 9, 1846.

Plaintiff then closed his case. Defendant then opened his case, by reading his pleas, and offered in evidence in support of thetruth of the plea of usury, his affidavit according to the provisions of the Act of 1842, which was in the words following: Georgia, Warren County;

Personally appeared before me Henry Hight, the defendant, in the above stated case, who, after being duly sworn, deposeth and saith that the facts set forth in the foregoing plea, as to the usury therein pleaded, are true. Henry Hight.

Sworn to and subscribed before me, 5th April, 1847.

Jacob A. H. Reviere, J. P.

The plaintiff, by his counsel, objected to the reading of the affidavit, and the plea of usury, on the ground that suits brought by Administrators, upon promissory notes given to their intestates, were not embraced within the provisions of the Act of 1842, but that the proof as to the usury must be as at Common Law. The Court overruled the objection, and decided that suits brought by Administrators, were within the provisions of the Act of 1842; to which decision the plaintiff, by his counsel, excepted.

The counsel for plaintiff then offered in evidence, in compliance with the provisions of said Statute, on his part, an affidavit, in words and figures following:

Georgia, Warren County:

Thomas F. Persons, Adm'r.

vs.

Henry Hight.

Assumpsit in Warren Sup. Court.

Plea of Usury.

Personally came before me, Thomas F.. Pearsons, Administrator, and plaintiff in above stated case, who, being duly sworn, deposeth and saith on oath, that the facts set forth in defendant's plea, as to the usury, are not true—and that the contract sued upon is not usurious, according to the best of his knowledge.

T. P. Persons.

Sworn to and subscribed before me, this April 3, 1848.

Jesse M. Roberts, J. I. C.

The Court ruled that said affidavit was in compliance with the Statute, and ordered the same to be read to the Jury, which was done; the defendant then offered in evidence, an affidavit of plaintiff's, made upon the first trial of said case, which is in the words and figures following:

Thomas F. Persons, Adm'r.

vs.

Henry Hight.

Assumpsit in Warren Sup. Court.

Georgia, warren county.

Before me, a Justice of the Peace, in and for said County, per-sonally came Thomas F. Persons, plaintiff in the above stated case, who being duly sworn, deposeth and saith upon oath, that as to the facts set forth in the defendant\'s plea, as to the usury, he cannot state nor know whether the same are true or not, &c. distinctly, that he does not know they are true; and he does not know that the contract upon which said suit is brought is usurious. T. F. Persons

Sworn to and subscribed in open Court, 5th April, 1847.

James Pilcher, Cl'k.

The counsel for plaintiff objected to the reading said affidavit to the Jury; the Court overruled said objection, and decided that said affidavit should be read—to which decision of the Court, the plaintiff, by his counsel, also excepted. The defendant then again offered in evidence, his aforesaid affidavit in support of his said plea of usury, and as evidence of the truth of the same; to the reading of which to the Jury, the plaintiff by his counsel objected, on the ground that it was not competent or the defendant to support his plea by said affidavit, after plaintiff's affidavit, as aforesaid, had been produced and read to the Jury; the Court overruled the objection, and decided that said affidavit should be read to the Jury as evidence in support of defendant's plea of usury; which was done; to which reading, decision and judgment of the Court, the plaintiff, by his counsel, excepts, and alleges the same to be erroneous. The case was here closed. The counsel for plaintiff then requested the Court to charge the Jury as follows:

First, That the plea and affidavit of defendant are not evidence before them that there was usury in the note, the subjcet matter of dispute between the parties, the plaintiff having filed and given in evidence his affidavit, in compliance with the provisions of the Statute.

Second, That the defendant having introduced no evidence to sustain his plea of usury, the plaintiff is entitled to recover the amount of his note, and interest. The Court declined to give such instructions, to which decision of the Court the plaintiff, by his counsel, excepts. The Court then charged the Jury as follows:

"The judgment against Wilder & Hight, in October, 1840, formed the basis of the note. No inquiry can be made into the negotiations between the parties beyond the date of that judgment. If that was really the basis of this debt, now in suit, no usury can be shown beyond the date of the judgment; but, if since that time, in the different negotiations and renewals or the debt by note, more than eigth per cent. has been included in the notes so renewed, as a promise for indulgence, then only the original amount of the judgment should be considered as the debt, without any interest—deducting the payment and adding $313, a new loan admitted in the plea.

As to the affidavits of the parties, Persons & Hight, the Act of 1842, is to my apprehension, crude and difficult of construction; but my opinion is, that when the plaintiff, on the requisition of the defendant, makes his affidavit as to the matter of the plea, and fails to make any disclosure as to the facts stated in the plea, but is merely negative in its character, it is competent for the defendant to read his affidavit as to the facts; that it is admissible evidence to be submitted to the Jury, like other evidence in the case, and, of course, the credibility of that evidence is exclusively for the consideration of the Jury. Now, if, from the evidence before you, you believe there has been usury in the negotiations between the parties in the renewal of notes, since the date of the judgment, the plaintiff is entitled to recover only the amount of the judgment increased by any money loaned to the defendant since the judgment; but if there is no usury in the transaction, plaintiff is entitled to a verdict for the balance due upon the note, as it is in evidence before you.

To which said charge, the counsel for plaintiff excepts, so far as it instructs the Jury that the affidavit of the defendant was evidence, for their consideration, in support of his plea of usury. The Jury found in favor of the plea of usury. To the several rulings, decisions and judgments of the Court, as aforesaid, heretofore excepted to, the plaintiff by his counsel here now again excepts, and prays that his Bill of Exceptions may be certified and signed by the presiding Judge. F. H. Cone,

Jos. W. Thomas,

Geo. Y. Neat,

Plaintiff's Attorneys.

Georgia, Warren County:

I, Nathan C. Sayre, Judge of the Superior Court of the said State, presiding in said county of Warren, do certify the foregoing Bill of Exceptions is true and consistent with what took place on the trial of said cause. Nathan C. Sayre,

Judge Superior Court presiding in Warren County.

April 6, 1848.

Jos. W. Thomas and Cone, for plaintiff in error.

Wm. Gibson and L. J. Gartrell, for defendant.

Thomas, for plaintiff in error, submitted—

1st. That under the Act of '42, defendant's affidavit and plea cannot be used as evidence until plaintiff has refused to discover. Stat, of 1842, Pam. 178. Constitution of Georgia, Art. 1, Sec. 17.

2d. That the plaintiff did not refuse to discover.

3d. That plaintiff having made his affidavit, defendant could not have resorted to his own affidavit, but only to cross-examination of plaintiff. Act of 1842.

4th. The defendant's affidavit having been improperly admitted, he was in fact without evidence of the truth of his plea.

Gartrell, for the defendant in error, submitted the following points and authorities.

1st. That the Act of 1842, compelling a discovery of usury, is general and comprehensive in its terms, and applies as well to suits by Administrators, as to suits between the contracting parties. See Act of 1842.

For the rules of construction of Statutes, see Ezekiel vs. Dixou, and authorities there cited.

2d. If the Act of 1842 is held to apply to suits by Administrators, then they must make a discovery; and failing to do so, the defendant's plea and affidavit is evidence of the usury.

The affidavit of plaintiff makes no such discovery as the Act contemplates.

In a Court of Equity, the affidavits would be held insufficient, and a failure or refusal to answer. See 3 Equity Dig. 12. 5 John. R. 247.

To a bill charging usury, an answer that defendant does not know or remember, will be considered evasive and tantamount to an admission. 3 Equity Dig. 6, 13, 15. Scotts vs. Hume, Litt, Sel, Cases, 379.

3d. The Act of 1842 establishes new rules of evidence on thesubject of usury, and goes beyond the principles of force, in cases of bills for discovery, prior to the passage of said Act.

4th. It was proper to admit...