Lovett v. Cowman
New York Supreme Court
In debt on bond, the defendant Cowman, who was alone served with process, pleaded non est factum, and gave notice of the defence of usury, adding an affidavit to the notice for the purpose of being able to call the plaintiff as a witness; but the affidavit was insufficient. Issue was joined in August, 1842, and the cause was noticed for trial at several circuits; but was put off by the defendant, once by an order to stay proceedings, and once by an injunction from chancery.
1Opinion of the Court
By the Court, Bronson, J.
It will not be necessary to notice more than one of the objections to this motion. Under the law of 1837, when the defendant pleads or gives notice of the defence of usury, and verifies his plea or notice by affidavit, he may call and examine the plaintiff as a witness to prove the usury. (Stat. 1837, p. 487, § 2.) Although this law may be constitutional—a question which I shall not examine—still, as the consequence of making out the usury is a forfeiture of the whole debt, I thought the morality of the statute very questionable, and said as much in the Bank of Salina…
2Cases cited8 opinions
- Law v. MerrillsCourt for the Trial of Impeachments and Correction of Errors · 1830
- Beach v. President of the Fulton BankCourt for the Trial of Impeachments and Correction of Errors · 1829
- Fulton Bank v. BeachNew York Court of Chancery · 1829
- Jackson v. VarickNew York Supreme Court · 1829
- Hallagan v. GoldenNew York Supreme Court · 1828
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