Texas State Gazette. (Austin, Tex.), Vol. 2, No. 27, Ed. 1, Monday, February 24, 1851 Page: 4 of 7
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TEXAS STATEAZETTE.
1851i
em?
y
41
K
l"i
question is what law governs the consti'uerion and execution of
the contract? Unquestionably it must he the Jaw of the place where
the contract was made and the instrument executed. "Acontractofthis
kind cannot stand on the same principles with njjona fide agreement
mudc in one place to be executelTin another. In the last mcutionpcr
case the agreements were permitted by the lex loci contractus and
will even be enforced there if the party is found within its jurisdiction.
But the muiio rule cannot be applied to contracts forbidden by its laws
and designed to evade them. In such cases the legalconsequences of
such agreement must be decided by the law of the place where the
contract as made. If void there it is void everywhere." Per Ch.
J. Taney in Andrews vs. Pond.
If therefore parties should endeavor thus to contravene and evade
the laws upon this subject there is it is conceived no reason to ap-
prehend that the vigilance and acumen of juries to whom the ques-
tion of intent may be submitted will not be able to discover the real
intention of the parties to unmask and defeat such covert agreements
and to avert the consequences so strongly and justly deprecated. But
it cannot it is conceived with any show of reason be maintained that
it ever entered into the conception of the parties making this contract
thus to frame it with a view of evading the laws of this country up-
on the subject of Usury.
The contract in this case on its face shows that it wagtobe per-
formed at a place other than that at which lit was made. The parties
entered into it with a view to its performance in the State of Louisi-
ana. They must bo supposed to have contracted in reference to the
laws of that State; and those laws must govern in the inquiry as to
whether the rate of interest stiptilatedin the contract is greater than
that allowed by law.
It has also been held in Louisiana and is considered by Chancellor
Kent as the principle established hi New York that if the rate of in-
terest be stipulated in the contract and it be according to the law of
the place where the contract was made though that rate be higher
than is lawful by the law of the place where payment was to be made
the specified rate of interest at the place of the contract may be reco
vered in the courts of that place (2 Kent Comm. 460 n. a c). So
that in the present case it would seem according to the decisions of
those courts that 'hough the stipulated interest be greater than that
allowed by the law of Louisiana yet if not also greater than that al-
lowed by law here it may be recovered in this action. But it will not
become material to examine the case in refcrcuce tq this doctrine un
less it shall first have been ascertained tha the interest here stipulated
to be paid is greater than was at the time allowed by the laws of Lou-
isiana. The material inquiry then is was the interest reserved in this con-
tract greater than that allowed by the laws of Louisiana 1 and was it
competent for the plaintiff to introduce evidence to impeach the con-
sideration on that ground? In considering these questions we may
consider the grounds urged for a reversal of the judgment on behalf of
the plaintiff. These are
1st That the court erred in admitting evidence to impeach the con-
sideration of the note for usury in the hands of the endorsee.
2d That the court erred in flic instructions to the jury respecting
the law of interest of Louisiana.
1. It was proven that the property in the note is in. the first en-
dorsee Goddard and that it was endorsed and transferred to him be-
fore maturity : and it does not appear that he had notice of the consi-
deration ot the noto. We do not think as has been insisted on be-
half of the defendant that there is anything upon the face of the
note calculated to put the endorsee upon inquiry respecting its conside-
ration and thereby to affect him with constructive notice. That a
promissory note bears interest from a time anterior to its date does
not make it on its face usurious (4 Pick. 173 1 McCord 115) ; nor
does it cast suspicion on the legality of the consideration.
We cannot regard-the endorsee who appears to be the present own-
er of the note otherwise than as 'an innocent endorsee for a valuable
consideration : and the question is can the consideration be impeach-
ed in his hands for usury ? Under the English statutes againstusry
(which according to Kent have been adopted throughout the United
States) it is held that if given for a usurious consideration the note
8 void in the hands of an innocent endorsee for a valuable consideration
(Kent Comm. 79-80) unless the statute itself protects bills-and notes
in the hands of the innocent endorsee as do the statiftesof 58 George
III C. 98 and the Revised Statutes of New York (lb. n. c). The
rule that the bill or note is void in the hands of an innocent endorsee
is it has been said the result of a positive rule and provision of the
statute of usury that a contract to secure the payment of usury is
not voidable only but absolutely and from the beginning void and
therefore- to be treated as if it never had existence. 10 Mass. It. 123.
The same rule says Kent would of course apply to every case in
which the contract is by statute declared absolutely void. 3 Kent
Comm. 80.
We have not found this question expressly decided upon the laws
of Spain : but those law.s in their denunciation of usurious contracts
as being absolutely void appear to be as positive and peremptory as
the English and American statutes; and these denunciations are also
by statutes and regulations having the force and effect of positive en-
aetmcuts. The same reason given for the existence of this rule in the
English would seem to apply witli equal force in the application of
the Spanish law.
In the case of Herman vs. Sprigg (3 Martin N. S. 190) a case
which appears to have been decided with great consideration the
Supreme Court of Louisiana held that contracts in which usury in-
terveues are void by the laws of Spain. In pronouncing tho opinion
of the court Judge Porter says : " It most clearly appears by a refer-
ence to the various laws of Spain in relation to usury that contracts
in which it took place were considered as null and of no effect. Such
also is the opinion of the most esteemed commentators on these laws
that we have been able to consult. To cite in support of this conclu
sion the various statutory provisions by which from tunc to time the
several monarchs of Spain endeavored to prohibit the loan of money
at illegal interest is unnecessary : we deem it sufficient to refer to a
provision contained in one of the last edicts on this subject. We al-
lude to that of Phillip III promul&ated in 1C08 in which after pre-
scribing the penalties the borrower and lender are liable to who enter
into usurious contracts it declares that eve
ry contract or agreement which shall be made against tlie loregoing
frhall be null and of no value and that henceforward no one shall avail
fhimself of or profit by such contract under the penalties already men-
itioned." -lb. 19-1-5.
This prohibition would 6eem in its terms sufficiently comprehensive
to embrace the case of an innocent endorsee.
The Judge also quotes from Febrero p. 1 ch. IV. s. 2 n. 37 that
." The contracts in which usury is practiced are null ' ceo. ; and other
Spanish authorities to the same effect
To what extent the contract was null whether for principal and in
terest or for the interest only was much discussed by the court but
it is not material to be here considered.
3 This also was an action by an endorsee ;' but in tho report of tho
icase it is not stated whether the note was endorsed before or after due.
The former however would perhaps be the presumption. From the
authorities cited and others to which wo have had reference wo sec
no reason to conclude that usury docs not affect the contract in the
mnds of tho endorsee equally in the Spanish as m tho Lnghsh law.
Wc conclude therefore that it was competent for the defendant to
Impeach the consideration of the note in this case for usury and that
the court did not err in admitting evidence lor that purpose.
2. Did tho court err in the instructions to tho jury respecting the
law of interest of Louisiana ?
It was in proof that thd law of that State as it stoodvhen this
contract was made allowed parties to contract for interest tit thb
rate of ten per cent. ; and interest in Louisiana as well as elsevflicre
is governed by the law in force at tho time of contracting and cannot
bo vaiied by any subsequent change in the law. 12lL. 11. 530.
This-contract therefore was not upon its face usurious.
But it was proved that upon the several items of tho account for
which the note was given interest was charged at the rale of ten per
cent. that this was added to tho principal and that the note was given
for the aggregate amount. And upon this evidence tho court instruct-
ed the jury that " if interest was computed on tho accounts previous
to giving the notes and if upon tho notes interest at fen' per-cent was
required both taken together being higher than allowed by law where
the note was payable would be usurious."
This instruction was not it is conceived) correct. In'thc case of
Mjllandon vs. Sylvester ct al (8 L. 11 2G7) the Supremo CJourt'of
Louisiana h61d flint when an account current has been rendered to a
party and received and entered on his books without objection he
cannot afterwards object to it on the1 ground that it contains charges
for compound interest. If tho party gave his asseht to the charge' it
is recoverable. And in a recent case (Ledoux &'Co. vs. Gaza decided
March 1849) the same court held that where a balance is strucC
and an account rendered by a factor to his principal and is acquiesced
in there is nothing illegal in charging subsequently interest on sueff
balauqo of which anterior interest formed a component pait.
Nothing more than what these decisions sanction appears to have
be.cn done in the present case. And the testimony shows that the de-
fendant was advised by his attorney of the manner in which the ac-
count was rendered': yet he executed his note and thus gave his assent
to the charges of interest as computed in the account. (
In the case of -Millardson vs. Arnand (4 L.R. 542) the Supreme
Court of Louisiana appear to have gone evon further thnn in the
caes just'eited and to have held" that' whore the plaintiff had fur-
nished to' the defendant an account current between them up to acertain
lime and struck a balance showing the amount claimed to be then
due which the defendant received without objection ho could not
afterwards when sued for the balance claimed to be due be permitted
to show by the production of the account over charges errors in cal
culating interest and usurious and illegal charges. His" acceptance of
the account was held to be evidence of a settlement and acknowledged
balance due at that time. And although there might have been items
of usurious interest charged in the account "yet after such settlement
and balance struck and acknowledged to be due it was like the case
of a promise performed to 'pay usurious Interest which when paid
cannot be recovered back. lb. 544-545 ; 2 L. 11. 429.
That an agreement to pay interest on interest is not usurious is well
settled. Thus where A gave to B his promissory note dated January
1 1829 payable in two years with annual interest no payment hav-
ing been made until February 1832 it was agreed between the par
ties that compound interest should be. computed on the note up to the
first of January 1832 and added to the principal and a new noto
given for the account payable in two years with interest annually
which was accordingly done; in an action upon the note itwas held
that it was not usurious. Camp vs. Bates 11 Conn. 487 ; Const.
Rep. 501. Turner vs. Miller 1 Eng. (Arks.) R. 4G3 4G8; 1 Hawks
R. 470; 23 Pick. 1G7.
The transaction as presented by the evidence in this case does not
appear to have been usurious and the court erred in instructing the
jury in effect that it was so.
It is true that the witness Crosby stated that both compound and
usurious interest were computed in the account but it is manifest that
this was but the .opinion of the witness upon a ..question of law and it'
is unnecessary to say that such statements by a witness-are not to be
received' and are not evidence. It is only as to matters of fact that
the statements of a witness are evidence.
In the view we'have taken ft does not bec6me necessary to inquire
whether the interest stipulated in the contract was greater than that
allowed by the laws of this country.
It is manifest that the instruction given by the court to the jury
which we have considcied influenced their finding and produced a
result which does not appear to have been warranted by the evidence
and the law applicable to the case. The judgment must therefore be
reversed and the cause remanded for further proceedings.
Match 11 1850. . -
Legal Interest and .Usury Laws In thcStatcs.
Penalty for Usury.
Forfeit interest and' usury.
Forfeit usury.
Forfeit whole debt.
Forfeit whole debt.
Forfeit interest and usury. '
Forfeit three times usury.
r fForfeit 3 times usury and interest "due.
--Forfeit double the usliry. " r
tForfeittlirec times the usury.
forfeit usury and costs.
Contract exacting usury v.oid.
HContrait exacting usury void:
Forfeit entire debt. '
Forfeit three times the usury.
..Forfeit usury and one-fourth the debt.
IFForfeit usury and costs."
Forfeit interest and usury
Forfeit entire debt.
Forfeit three times usury.
Jborieit entire debt.
' "Forfeit double usury.' '
Contract void.
Forfeit enthe debt.
Forfeit interest and usury.
y Forfeit interest liiiry jSiiu costs.
Contract void
Contract void.
Hecover in account witlTcosts.
Tprfeitcloubletho usury
ft r
Contract void.
Tho Commerce of the United States.
f
j .......jjuunuuv! juv jlv iv ui uu evuu iiini iviainc
heads tho list 326 vessels having been built there within the past-vestr
Class of Vessels
STATES.
2
9
jn uk
Maine
New' Hampshire
Vermont .
Massachusetts
Rhodo Island
Connecticut
New York
Ntrw Jersey
Pennsylvania
Delaware '
Maryland 1 - V
District of Golumbiat
Virginia
North Carolina
South Carolina
Georgia
Florida
Alabama
Mississippi
Louisiana
51
' 5
.' 3
26
f 4
7
75
19
3 G
7
4
1
1
"M 1
1 2
46
5
27
50
35
39
12'
125
27 '
23
32
3 ' .1
9 'l
(U2. 32'
?&.. si
v
IjJLvoli-
-S 55 JK W
-.S Tojinnfr. g
32G 91211 78$fe
10 " 69i4'32JjL
1 . rt'wL
121 36836 WSffl.
308713
4;819
h'
'2'f
to-
8
. 5-
2' 5
s 1
. .3
'4
Tennessee
Kentucky
Missouri
Illinois
Ohio
Michigan
Texas
Oregon
' At 4' " '
Mfcfc''
' ig?'s
3'!4
it- '3t
L 'O
4 ti &ssf2ri 7.-" n3 vtra
. . 1 t . 6 G j; 3
a
2
Total.
247 117 547 290 159 13G0
' V7.K
't
21409
;li848 62
'15964 80M
28.8 tiff'..
1-3584 03
2GAt?fatid
t
T83 85
-79 m
U3'0l
1592 3J
1'
o.aou oyias
4'353 "S2fm
1JG91 Slfill
5214 'G2:ii-
2001 A
105 Wf
122.;4iift
fit
Total Tomiagc of each State in the tynion.
'2218li
Maine 50142r'33
New Hampshire 23096 38
Vermont 4530 32
Massachusetts 685441 61
Rhode Island 4088- 71
Connecticut ' 113086 69
New York 942446 95
New'Jcrsey 80600 31
Pennsylvania 258939 43
Delaware 16719 57
Maryland 193087 25
District of Columbia 4 70 10 Gl
Virginia - ' 74021 00
North Carolina 462X8 39
South Carolina
Georgia
Florida
Alabama "
Mississippi- "
Louisiana
Tennessee '
Kentucky
Missouri W
Illinois'"
Ohio
Michigan
Texas
Oreson
"-r
36072 (J8 I
21690 04'J
41272 44 p
24.MS7 filjnt
25008p eglt!
3.776 OT
v 14820 4f
- ' 28907 4o
-t 21242 lfrd
G2472L
38144 44J
. . "3897 37
1769 Q0
Total.
Stnto. Legal Itatc.
Alabama 8 per cent
Arkansas G "
Connecticut 6 "t
Delaware 6 "
Florida' V ' ""
Georgia rf8 "
Illinois .t "
Indiana; M6V j(i
Iowa - v 7 " "
Kentucky; C J
Louisiana ' 5 v "
Maryland 6 -"
Maine 6 "
Massachusetts ' 6 "
Michigan 7 "
Mississippi 8 "
Missouri 6 '
New York 7-
N. Hampshire 6
New Jersey 6
North Carolina 6
Ohio 6
Pennsylvania 6
Rhode Island 6
South Carolina 7
California
. . . 3535454 "23J1
Statement of the Exports of Cotton from the United States for tin
xvumuvruj x curs wun me Jivcrago iJnce per round.
Av. PrTpK
UjUMJ
Ycnr.
1821
'22- '
23
24
25
2G
27
-28
29"
1830" '
31
32
33
34
35
36
37
38
39
1810
41
'42
41
45 .
46'
47
48
49 i4
1850
f
N
f
TotaLPoiinds.
124893405
144675095
172723270
142369663
176449907
9.04 .fiSri a 11
2943101 lfc$P
21 05904 (nr1'
264837186
298459102
276979784
- 322215122
324G98G04
384l717907' '
387358(992
423;63i;307
4'44"21i;537
595952267
41 362421 2
743941061
530204 HJ0
584817;'017 '
792297106
663633155
872.905.99p
547558J055
"527219953
814274431
1036602269
635381004
X
1 f ; o -y I
10.6'f- i
id
20.9 r I
12.2 f J
10 I .-J
"if
-
Value
$20167481
24035058
20445520
21947401
36846649
25025214
29t359545
22487229
26574311
' 29674883
25289492
3172'lJiWV
3Gj hereunto set my hand
Johe State to be affixoil
j 649eccmljer m tne yf-fr
7if26$ hundred andlilty
63 240?li 55ittie5 mo
Gl23t& U"
63870gr
54330m
47593111 -r A
48119b-gTr;ih5 .
540635$i -
517396-Mp.
4276734J
5341 5 84plyn? Claim from
61998i29b'JmA.
6639696'! 'JS? ;Vlllmm ' '
7198461618) BDliotu
BELL.
M
Tennessee
Texas
Vermont
Virginia
Wisconsin
6
10
6
6
J
"V
Dist. Columbia 6.
By special contract ns highjis lpor qpnt vt
t By special contract as high t& I2j5br fcii't. J1
I uy spuoini cuniruci as Migu us iv per cciu.
Banks allowed 0 per cent. " .
On tobacco contracts 8 per cent allowed. -'
11" By contract aa high as 10 per cent.
By contraot as high as 10 per cent
ft Any rate agreed upon by tho parties.
!
j e
m
Mr Cnss the American Clmrgd d'Aflaires at Rorao has Intely
received a commtinicntion from Cardinal Antonelli to tho effect
that on the official complaint of the Cardinal Vica tho 'doctrinal
decisions of the Congrega'ion of Propaganda Fide and tho earn-
est petitions of many E'nglish nnd American Roman Catholic
residents His Holiness had been reluctantly obliged to withdraw
the permission which hchad granted for 'tho erection of an
American Protestant Church in Home.' N. O. Ddta
Great Britain and the "United Statcs!pknsi0rTO01-
Vf-VV IV dlllf
mm nt
in
Some .help will be afforded by tho following statisticrcgaeLc'fii
g tne relative conumon 01 tj-reat uritam and theUnitG?.U""icxuai
:. .S.. ':-W
nuuic aiupiiujj uuiii luiuiyii puns yunny xQ. ao 000
' . .. ? " toiitmoro q nnn n
D "IJUU
Foreign entries
mea'
No.
men
Number of steamboats
tonnage
M in the Miss. Valley alone
Miles of railroad
A'verage'cost oRconstruction per mile
Miles of canal ' f
&
180000
13000
100000
10)00
155731
6000
S200.000
2300
2058321
109046
20200
198731
1400
8000
10000
4000
Ejfolusivo'Of steamboat nnd flntboat tonnage.
n3-
11 m
s
Qf A few dnvs-agoj.a young married man eloped from tfin
liiiuuiuuuu ui luunuiiusiur wiiu a milium reinfit-o ;nini:
to rifnCGPfi to Amfirip.n in onn nf ihe nnrdrnt shine im . .
were taken and every arrangement made. Unfortunately lb
the scheme of ihe faithless husband an intimation of tho dr
cumstance was sent to the wife who sold her goods and cam
over to Liverpool immediately. Having cnmmnn; t
- -. . . . . . -"ih.iiicu fiir
story to the captain of the vessel in which her faithless htisbw&W'
was about to sail she was allowed to go on bpnrd iust nt rr
time of sailing. Tho young woman who halrun flLBN
the husband was sent on shore nnd when thejhiisinlrj retir li k
to his berth he found inilace of his paramour l7is lawful vif vl
h
5k
- vf X
ftr
.. v
"iM
iV
I
T
SpLi
'IP"'
HMaiBrfiA1TARB'i!!l5ri" rBSB
.-.
& c
wer
.
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Brewster, H. P. & Hampton, J. W. Texas State Gazette. (Austin, Tex.), Vol. 2, No. 27, Ed. 1, Monday, February 24, 1851, newspaper, February 24, 1851; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth80967/m1/4/: accessed June 13, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting The Dolph Briscoe Center for American History.