Dawson v. Taylor, 28 N.C. 225, 6 Ired. 225 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 225, 6 Ired. 225

BURWELL DAWSON vs. JOHN R. TAYLOR & AL.

Where a person takes a bond, and includes in it usurious interest, it is prima facie evidence that he knew what he was about — that there was no mistake, and that he did it knowingly, and, therefore, corruptly. If he relies upon there being a mistake in the calculation of interest, he must shew it.

Appeal from the, Superior Court of Law of Cumberland County, at the Fall Term, 1845, his Honor Judge Caldwell presiding.

The plaintiff declared, in debt on a bond, executed to him by the defendants for $175 50, with interest from its date, and dated on the 10th day of May, 1839, and payable on the 1st day of January, 1840. Plea, Usury. The defendants relied on the testimony of the witness, McAl-ister, to prove that the bond was given by them, only in consideration of the surrender by the obligee of the two Justices’ judgments mentioned in the case, the principal and interest on which, up to the date of the bond, was only $156 66. The bond was, therefore, for something more than double the legal rate of interest on the money loaned. The plaintiff insisted, that the bond was given in consideration of the said two judgments being surrendered, and also a loan of $13, as he insisted was proven by the witness Fin; and also some balances due him from the defendant, Taylor, from former transactions, as he insisted was to be collected from the testimony of the witnesses, Strickland and Jackson. The Court charged the jury, that it was incumbent on the defendants to establish. their plea; that if they gathered from the testimony of McAlister, that the bond was given for the two judgments produced, and for forbearance and giving day of payment, and for nothing else, they should find for the defendants; if otherwise, for the plaintiff. The plaintiff’s counsel now contends, that there was no evidence in the cause to support the plea, and that the Judge ought so to have charged the jury.

The jury found a verdict for the defendants, and, judgment being rendered thereon, the plaintiff appealed.

Strange, for the plaintiff.

Henry, for the defendants.

Daniel, J.

We think that the testimony of McAlister was some evidence, that the plaintiff took the bond for and in consideration of the surrender of the two judgments only. There is nothing in the ease to shew, that the jury understood the Judge, as directing them to disregard the other evidence given in the cause. Secondly, it is insisted for the plaintiff, that the Judge should have informed the jury, that if the excess in the bond arose from any mistake in calculating interest, adding up sums, or from any other cause, it would negative corruption, and then they should find for the plaintiff The answer to this is, that the plaintiff offered no evidence of any such mistakes, to call for such a charge, and such an instruction was not even asked. The plaintiff having taken the bond for the sum. mentioned in it, was prima facie evidence, that he knew what, he was about, and that he did it knowingly, and therefore corruptly.

Per Curiam. Judgment affirmed.