Ewing v. Howard
74 U.S. 499 (1868)

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U.S. Supreme Court

Ewing v. Howard, 74 U.S. 7 Wall. 499 499 (1868)

Ewing v. Howard

74 U.S. (7 Wall.) 499

Syllabus

1. Usury being a defense that must be strictly proved, a court will not presume that a note dated on one day for a sum payable with interest from a day previous was for money first lent on the day of the date only.

2. Where a defendant on suit upon such a note wishes to rely at any time on usury as a defense, he should raise the question in some form in the court below. If this is not done, the defense cannot be made here.

A statute of Tennessee passed in 1860 [Footnote 1] and which by its terms was to take effect from the 1st of September of that year, allowed 10 percent interest (instead of 6 percent, a former rate) to be taken for money lent, provided that such agreement were expressed "on the face of the contract," whether evidenced by bond, bill, note, or other written instrument. The same statute, however, provided that if any greater amount of interest than 10 percent was paid

Page 74 U. S. 500

or agreed to be paid, the whole amount of the interest should be forfeited by the payee. And it made the lending of money at such greater rate a misdemeanor, subject to indictment and punishable accordingly.

The act was repealed on the 31st of January, 1861. With the exception, therefore, of the five months from the 1st of September, 1860, to 31st January, 1861, it had always been in Tennessee a misdemeanor to lend money at a greater rate of interest than 6 percent per annum.

In this state of the law there, Howard sued Ewing, in 1865, in the court below upon two notes, one (the only one which was the subject of controversy here) having been dated November 15, 1860, and by which he, Ewing, agreed to pay him, Howard or order, $3,333 33/100, "with interest at the rate of 10 percent per annum, from and after the 1st day of September last past till paid." By a memorandum in writing dated on the same day as the note, payment was guaranteed by the father of Ewing, the guaranty speaking of the note as being for money "heretofore" lent by Howard to Ewing's son.

The declaration was in the ordinary form of a declaration in assumpsit. Plea the general issue, and nothing else. On the trial the notes were put in evidence without objection, and there being no other evidence in the case, verdict was given for the plaintiff. There was no request for instructions on either side.

From an entry in the record that "the motions for a new trial and in arrest of judgment were by this Court overruled" it was to be inferred that motions both for a new trial and in arrest of judgment, had been made below, but neither were set forth in the record as sent here, and accordingly if usury or any other defense had been made in fact in the court below, to the notes, no evidence of it appeared here.

Judgment having been given for the plaintiff, the defendant now brought the case here.

Page 74 U. S. 502

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