Opinion
(December Term, 1845.)
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 show it.
APPEAL from CUMBERLAND Fall Term, 1845; Caldwell, J.
Strange for plaintiff. (226)
Henry for defendants.
The plaintiff declared in debt on a bond executed to him by the defendants for $175.50, with interest from its date, and dated 10 May, 1839, and payable on 1 January, 1840. Plea, Usury. The defendants relied on the testimony of the witness McAlister 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.
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 case to show 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. No error.
Cited: Pritchard v. Meekins, 98 N.C. 247; Webb v. Bishop, 101 N.C. 102.