The venue being laid in New York, is not of course to be changed on ac-
count of the supposed influence of the plaintiffs.
Corporation of New York v. Dawson, 516. See vol. 2, p. 335.
I. What is Effect of Nature of the Defence-New
trial when verdict against Law.
II. Feigned Issue to try question of.
I. What is Effect of Nature of the Defence-New trial
when verdict against Law.
1. An usurious contract, in pursuance of the act of the legislature, considered
immoral and corrupt.
A loan of money on usury although covered by other names in the form of
an accommodation note indorsed, &c., is equally against the statute.
Not considered as an unconscientious defence, and new trial granted.
Jones v. Hake, 481. See vol. 2, p. 60.
2. Usury may exist in a security for a pre-existing debt.
An executory contract for the sale of land in Massachusetts; the land lying
here, and one of the parties residing here, and the title retained as a se-
curity, and the parties having an express view to the interest of this state,
will not be usurious, although more than Massachusetts interest was re-
served, but not exceeding New York interest.
Van Schaick v. Edwards, 519. See vol. 2, p. 355.
3. Usury consists in extorting or taking a rate of interest for money, beyond
what is allowed by law. It is not necessary that money should be actually
advanced, in ord. to constitute the offence of usury, but any pretence of
contrivance whatever, to gain more than legal interest, where it is the in-
tent of the parties to contract for a loan, will make that contract usurious.
Per Thompson, J.
Proof of usury generally depends on circumstances, and where those circum-
stances are so strong as to produce absolute conviction in the mind, they
are certainly entitled to as much weight as positive and direct testimony.
Per Thompson, J.
When a contract is usurious in its inception, no subsequent transactions will
cure it; but if the original contract is not usurious, nothing done afterwards
can make it so. Per Thompson, J.
If a promissory note is given for a usurious contract, it is absolutely void,
even in the hands of an innocent person, who has taken it in the fair and
regular course of trade, without knowledge of the usury.
In an action on a promissory note, the defence was usury, and the judge, at
the trial, charged the judge that the note was usurious, and that they
ought to find for the defendant; but the jury found a verdict for the
plaintiff; and the court afterwards set aside the verdict, and granted a
new trial. On the second trial, the jury, on substantially the same evi-
dence, notwithstanding the opinion of the court, found a verdict for the
plaintiff, and the court set aside the verdict, as against law, and granted a
third trial. Wilkie v. Rosevelt, 206, 166, 532, 548.
II. Feigned Issue to try question of.
4. After a judgment is assigned to an innocent third party, the court will not
award an issue at the instance of a defendant, to try the fact of usury al-
leged by him to impeach it.
After notice of an assignment, satisfaction was acknowledged and enter-
ed of record; ordered, that the same be vacated, and the parties be left in
statu quo as to the claims of the assignee. The court will thus take notice
of the rights of an assiggee. Wardel v. Eden, 500. See vol. 2, p. 258.
5. A feigned issue awarded to try the fact of usury, a judgment having been
entered by confession on a warrant of attorney, accompanying the bond,
&c. Gilbert v. Edens, 501. See vol. 2, p. 280.
In error from the common pleas of Albany. A variance between the sum
reported by referees and the judgment entered thereon, is fatal. Reversed.
Stafford v. Van Zandt, 484. See vol. 2, p. 66.
I. Local.
II. Transitory.
III. When changed.
IV. Affidavit.
1. The venue in debt on a judgment in a county court, changed to the
county where it was given. Barnes v. Kenyon, 514. See vol. 2, p. 381.
2. An action for use and occupation is founded on the privity of contract, and
and is not local.
The venue being laid in New York, is not of course to be changed on ac-
count of the supposed influence of the plaintiffs.
Corporation of New York v. Dawson, 516. See vol. 2, p. 335.
3. In assumpsit where the count is general, the venue will not be changed
on a general affidavit, the special matter or cause of action must be shown,
&c. and where it arose, &c. Wheaton v. Slosson, 470.
See Supra, Corporation of New York v. Dawson.
4. Motion to change the venue founded on an affidavit that the action was
brought on a special agreement, and otherwise in the usual form, granted
notwithstanding an affidavit by plaintiff that the cause of action arose in a
third county where the venue was not laid, and the objection that the narr.
contained money counts only. The special agreement may still be given
in evidence, if it was rescinded, &c. Weaver v. Bentley, 447.
See vol. 1, p. 240.
See AFFIDAVIT. PRACTICE.
1. Incompetent.
II. What cured by.
1. A special verdict offered, being wholly incompetent, was properly refused.
The court may dismiss a jury in a case of misdemeanor, where it appears
after a full experiment that they cannot agree.
The People v. Olcott, 512. See vol. 2, p. 301.
2. After verdict, a mistake in dates in the narr. is not essential.
Allaire v. Ouland, 478. See vol. 2, p. 503.
I. Construction of-Legacy-Interest— Witness.
II. Record of what Evidence.
III. When regarded as ancient deed.
IV. Witness to impeach.
I. Construction of-Legacy-Interest-Witness.
1. A legacy to one who at the date of the will is indebted to the testator, does
not extinguish the debt, unless it appear to be so intended on the face of
the will.
The acts of the testator, may in some cases, be evidence of a debt against
his legatee. Rickets v. Livingston, 479. See vol. 2, p. 97.
2. Interest on a legacy to be paid out of moneys constituting a general fund,
although charged on land, is to be allowed only from the time it became
due.
A grandchild is not within the rule which allows interest on the legacy of a
child for the purpose of maintenance. (Vide the rules respecting interest
on legacies in the opinion by Radcliff, J.)
Van Bramer v. Executors of Hoffman, 488. See vol. 2, p. 200.
3. A devise to a wife, her husband being a witness to the will, is void.
A devise to the use of another till Thomas shall be of age, to whom the es-
tate was previously devised, after the death of his mother, is not a condition
precedent to the vesting of the estate in Thomas. It vested on the death
of the mother. Jackson, ex dem. Beach v. Durland, 510.
4. The unity of husband and wife is such, that if either be a witness to a
will containing a devise or bequest to the other, such devise or bequest is
void within the intent of the stature concerning wills.
Jackson, ex dem. Cooder v. Woods, 438. See vol. 1, p. 163.
II. Record of what Evidence.
5. The record of a will proved under the statute, (sess. 24, c. 9, s. 6,) is not
conclusive upon the heir, so as to prevent the admission of evidence to im-
peach its validity. The record of a will, like that of a deed, is only prima
facie evidence of its authenticity.
Jackson, ex dem. Woodhull v. Rumsey, 234.
III. When regarded as ancient deed.
6. A will executed in 1723, and which had been proved by the witnesses in
1733 and 1744, and recorded, but not in a manner authorized by law, was
allowed to be read in evidence, on the trial of an action of ejectment, in
1801, as an ancient deed; though actual possession did not follow and ac-
company the will, that being explained by the peculiar situation of the prop-
erty in question; and other circumstances shown, to raise a presumption of
the existence and genuineness of the will.
The general rule in reference to proof of ancient deeds is that a deed appear.
ing to be of the age of thirty years, may be given in evidence, without proof
of its execution, if the possession be shown to have accompanied it, or where
no possession has accompanied it, if such account be given of the deed, as
may be reasonably expected under all the circumstances of the case, and
wiil afford the presumption that it is genuine. Per Radcliff, J. Livingston
and Thompson, J., concurring. Kent, J., diss.
Jackson, ex dem. Lewis v. Laroway, 283.
Cases and authorities, 292, n. (a) and (b.)
7. A person who was a tenant under a devisee of part of the estate devised,
was held to be a competent witness, in an action of ejectment brought by
the heir against a tenant, who held part of the premises under the testator
or devisee, and under the witness, in order to impeach the validity of the
will. Jackson, ex dem. Woodhull v. Rumsey, 234.
Cases and authorities, 236, 237, n. (a), (b) and (c.)
See EVIDENCE, XXV. INSURANCE.
1. On the issue of a writ of right, the only question is, which of the parties
has the better right; and the evidence to establish the right is subject to
the same rules as in other cases.
Where the ancestor of the demandant was in possession of the premises in
question, 51 years ago, and died in possession 41 years ago, leaving the de-
mandant his only son, this was held sufficient evidence to rebut the pre-
sumption of right in the tenant, arising from a possession of 38 years only,
commenced by wrong.
And a patent, dated in 1697, produced in evidence by the tenant, not for the
purpose of deducting a title to himself, but to show a title out of the de-
mandant, was held not sufficient to repel the conclusion in favor of the de-
mandant, as the jury might presume a title in the ancestor of the deman.
dant, derived from the patent. Nase v. Peck, 128.
Cases and authorities, 129, n. (a.) 130, n. (b.)
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