
    Jesse Cleveland, vs. Thomas Dare.
    
      Defendants property being tafeen in execution at the suit of 'Ji. B. for $1400, defendant, in order to obtain one months stay of sale, agreed to pay $100 and gave the note on which the action-was brought to the plaintiff, to whom Jl. B. was indebted; plaintiff crediting JL. B. with the amount, aiid he guaranteeing the payment of the note to plaintiff: Held that the note toas usurious, and void in plaintiff’s hands.
    
    Assumpsit on a promissory note. Deféhde — Usury. The defendant’s property was taken in execution by the sheriff ol Spartanburgh district, at the suit of A. Benson, for $1400, and was advertised for sale on the first Monday in September, 1823. Defendant agreed with Benson that if he would indulge him until the next sale day (the first Monday in October following) he would give him $100, and in pursuance of this agreement lie gave the note on which this action is brought to the plaintiff. The inducement to make the note payable to the plaintiff, was that Benson was indebted to him; and upon the execution of the note and Benson’s undertaking to guarantee its payment, he credited him with the amount.
    The jury, fouftid for the defendant, and a motion was made' for a new trial on the ground pf misdirection of the court- in the following particulars:
    1st. In charging the jury that the contract as between Benson and defendant was usurious:
    2d. In charging that it was usurious as between plaintiff' and defendant, if the consideration was known to plaintiff!
   The opinion of the court was delivered by

Mr* Justice Johnson.

If we were to consider the first proposition, with reference only to the inducements which operated on the defendant'to' enter into this contract and the probable advantages that may have resulted to him from it, we should- find it difficult to detect any thing legally usurious or immoral' in the transaction. But if we examine the inducements which operated- on the other party to the contract, the atteiñpted acquisition- of unlawful gain is clearly, detected. He secured to- himself aft interest on the debt which the defendant owed- him; at the rate of about-eighty-five .pe? cent, per annum,- and if such a contract- waíí good for one month, it must necessarily be so for a year and so on ad infinitum.

An ingenious usurer would find no difficulty in bringing about a state of things with respect to his loan, embraced in the principle contended for in support of the motion; all contracts founded on usurious consideration would necessarily fall into that channel", and the act against usury would become a dead letter. The authorities are I think clear on this point, Pollard, vs. Scholy, Cro. Eliz. 20. “ Pollard sold to the defendant some oxen, to he paid for at a given time; when the time was arrived, Scholy required’ a longer day for payment and Pollard granted it, paying to him so much wheat as exceeded the legal interest. The defendant, in debt, pleaded the statute against usury and would avoid the contract, and the opinio» of the justice was that the statute doth not make the contract void which was duly made; doth only void all contracts for usury, and this last contract is void, being against the statute; but' the first was good being made bona fide. (See also Spurrier, vs. Mayoss, 1 Ves. jun. 531.

I have not been able to discover any foundation for the second ground of the motion. If it be placed on the footing, that the plaintiffhad paid a full consideration for the note, it is answered that this is not supported by the facts. It is true, that plaintiff credited Benson with the amount, but it is equally true that before he did so, he required that Benson should guarantee the payment of the note; so that as between him and Benson, he is in precisely the same condition that he was before he gave the credit. Admitting however that it was otherwise, it could not effect the question. It has been before shown, that as between Benson and the defendant, the contract was usurious; and if it was known to plaintiff, he was as mud; a party to it as jf he had been the person benefited.

The view taken by the circuit court, placed this question on a more favorable footing for the plaintiff than 1 am inclined to think was justifiable in point of law. It is universally admitted that a promissory note, founded on an usurious consideration is void, even in the hands of endorsee without notice; and I cannot distinguish between the two cases in the application of the principle. It is enough for the present however, to decide the case before the court. Motion refused.

Farrow, and Henry, for motion.

Irby, and Goodman, oonjra.

Colcock, Gantt, and JVoti, Justices, concurred.  