
    David Cutler versus Sylvanus Johnson.
    
      A owing £ a sum of money, gives his promissory note, payable in six months, in a specific commodity at a much lower rate than its current value; the note not being paid at the time it fell due, the creditor put it in suit, and afterwards adjusted the suit by taking a new note for the balance of the former at the low rate of the commodity, and made the new note also payable at a given day, in a specific commodity at a lower rate than its current value; this last note was held to be usurious and void.
    The plaintiff declared in assumpsit on a promissory note made by the defendant on the 2d of June, 1809, for the delivery of 1920 bushels of oats in seven months from the date.
    On the trial of the cause upon the general issue, before the Chief Justice, at the sittings here after the last October term, the plaintiff gave the note in evidence, which was agreed to have been made by the defendant. His defence was, that the note was void. And he proved that * the plaintiff was endorsee of a note which the defendant had given to one Valentine, on which were due 343 dollars; that the plaintiff called on the defendant for payment of that note, and proposed to give him six months for the payment, if the defendant would give the plaintiff a note for Indian corn of the value of that sum, reckoning the corn at seventy-five cents the bushel; corn then being worth one dollar the bushel; — that the defendant consented to this proposal, took up his note which had been endorsed to the plaintiff, and gave him a new note for Indian corn payable in six months ; — that within the six months the defendant paid 100 dollars in part, which was en dorsed on the note ; — that at the expiration of the six months, the plaintiff put that note in suit against the defendant, pending which suit it was agreed by the parties, that the said- note should be valued in cash, reckoning corn at six shillings the bushel, which was greater than the price of corn at that time;—that to this value should be added the interest thereof and the costs of the suit, from which amount should be deducted 100 dollars paid as aforesaid, and that for the balance the defendant should give the plaintiff a note for oats payable in seven months, estimating twenty cents as the value of a bushel of oats, and that for every twenty cents which the defendant should pay the plaintiff within the said seven months, a bushel of oats should be endorsed upon the note as paid ; — that oats were then worth thirty-seven cents the bushel, and for many years had not been less but more in the place where the parties lived ; — that the note declared on was accordingly given pursuant to the said agreement, the plaintiff declaring that he took it in that form without interest, to compel the defendant to pay the money within the seven months, as he much wanted the money.
    
      The Chief Justice advised the jury, that they might, in assessing the damages, estimate the oats at twenty cents the bushel; and he directed them to find a verdict for the plaintiff, as he should save the question of law, whether * the note was or was not void, and the jury found for the plaintiff accordingly. For this direction the defendant moved for a new trial, and the action was continued to this term for the consideration of that motion.
    
      Bigelow, for the defendant,
    thought this a stronger case than that of the same plaintiff against Sow, decided this term ; inasmuch as the defendant had no stipulation that he might discharge the note for corn at its real value; and for the balance of that note, reckoning the corn at one third more than its current value, and adding lawful interest, the note in the present case was given. This was extravagant usury, which tainted and made void the note, payment of which is now demanded. .
   And of this opinion was the Court. The verdict was accordingly set aside, and a new trial granted.  