Utica Insurance v. Kip
New York Supreme Court
Motion to set aside report of referees. The plaintiffs declared on a promissory note for $3000, bearing date the 26th June, 1818, and payable the 4th September then next. The declaration also contained the common money counts. The defendant pleaded the general issue and the statute of limitations,- and gave notice of set-off The plaintiffs replied a new promise. The cause was heard before referees in October, 1829. The note declared on was produced.
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Motion to set aside report of referees. The plaintiffs declared on a promissory note for $3000, bearing date the 26th June, 1818, and payable the 4th September then next. The declaration also contained the common money counts. The defendant pleaded the general issue and the statute of limitations,- and gave notice of set-off The plaintiffs replied a new promise. The cause was heard before referees in October, 1829. The note declared on was produced. On the back of it was an endorsement subscribed by the defendant, engaging to pay the balance due on it on demand, the endorsement bearing date…
1Opinion of the Court
*373 By the Court,
Savage, Ch. J.
I am inclined to think the note void, but' not for usury, for by the defendant’s own account of the operations of the company, the excess was taken by mistake. In this particular this case is distinguishable from the cases referred to by the defendant’s counsel. The taking more than lawful interest, and casting it upon an erroneous principal unexplained, would be evidence of a corrupt agreement ; but here both parties have sworn to a mistakethe inference of law, therefore, is rebutted by the oath both of the defendant and of the officer who recommended the…
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