
    David Cutler versus Nehemiah How.
    Where, by the terms of a contract, the party may, by payment at a day certain, avoid any Stipulated penalty, such contract is not usurious.
    The action was assumpsit on a promissory note, made by the defendant, and bearing date the 17th day of April, 1809, by which he promised the plaintiff to pay and deliver to him nine hundred and twenty-eight bushels of oats by the 7th day of October then next.
    
      At the trial, which was had on the general issue, before the Chief' Justice, at the sittings after the last October term in this county the plaintiff proved the making of the note. The defence was usury and fraud in obtaining it; and to maintain this defence, the defendant proved that the plaintiff, having, a few days before the date of the note, recovered judgment, and sued out execution against the defendant for the sum of 176 dollars 6 cents damages and costs, requested a deputy sheriff to take the execution, and to compel the defendant to pay the amount due in cash in four days, which the deputy refused to do. The plaintiff then told the deputy he might take the execution, if he would compel payment in ten days, which he also refused. The plaintiff then went to the defendant with the execution, to settle it with him, and proposed to discharge the execution, if the defendant would give him his note for the amount due upon it, payable in oats, at twenty cents the bushel, by the 7th of the then next October, reckoning as part of the amount what would be the sheriff’s fees for levying the execution, estimated at 8 dollars 54 cents. And he * further stipulated, that if the defendant would give such note, he would discount upon the note five bushels of oats for each silver dollar paid thereon, if the defendant should pay one half in thirty days, and the other half in sixty days. On these terms the defendant made the note, which is the same that is declared on. On the 23d day of May next after the date of the note, the defendant paid one hundred silver dollars to the plaintiff, pursuant to the said agreement, which he endorsed on the note, in lieu of five hundred bushels of oats. — The defendant further proved that oats had not been known at Hopkington, where the parties live, to have been lower than 33 cents the bushel for many years past; and when the note declared on was made, they were not lower than 37 cents the bushel.
    On these facts the defendant insisted that the contract was not merely unconscionable, but was at law usurious and void.
    
      The Chief Justice, desirous to save the question, directed the jury, that they might consider the contract as unconscionable, and, in assessing the damages, might value the oats at 20 cents; and they found a verdict accordingly, including all the oats not endorsed or paid.
    If, upon the foregoing facts, it should be the opinion of the Court that the note was in law usurious and void, the verdict was to be set aside, and a new trial granted.
    And now Bigelow, for the defendant,
    moved that the verdict be set aside, contending, in the first place, that the note was usurious, and that the making it payable in specific articles was a mere color to avoid the statute
    
      The whole transaction carries on the face of it corruption and oppression; and although the intention of the parties to take it out of the statute is not for the Court to judge of, yet it ought to have been left to the jury, who are the competent and proper tribunal. 
    
    * Secondly. The including of the amount of what might have been due to a sheriff as fees for levying the execution, was unlawful and oppressive, and vitiated the whole note. 
    
    
      Dana, for the plaintiff,
    argued that this was not a case of extortion, which could only be practised by an officer. Where a private person, availing himself of the necessities of another, takes from him a contract for more than is due, the contract is not thereby rendered void; although, if paid in full, the person thus oppressed may perhaps recover back the amount of what has been thus unjustly secured and paid. But, in the present case, the jury were instructed, if they found that oppression had been practised, or that the contract was an unconscionable one, they should deduct the extra amount, and find only what was justly and fairly due. 
    
    This contract was not usurious, for it was in the defendant’s power, by discharging it at a time certain, to avoid paying more than the original money, and that without any interest at all.  —■ Further, it is contended that this contract was within the proviso of the statute against usury,  by which it is prevented from having any operation upon “ the letting of cattle, or other usages of the like nature in practice among farmers.” Those other usages have always been understood to relate to contracts for grain; respecting which it is a common practice to lend it on condition of repayment with large increase after the succeeding harvest. Thus, for a day’s labor in reaping rye, a bushel of the grain reaped is the uniform price; yet if paid before the labor is performed, and out of the preceding year’s crop, three pecks is always received as a compensation. In the present case, it will be noticed that a harvest was to intervene between the giving of the note and the day fixed for payment, and that thus the price of oats might be essentially reduced. But after all it is apparent that the plaintiff’s whole object was to insure a punctual payment of the sum actually due in cash; in which event there could have been no cause of complaint on either side.
    
      
      
        Cro. Eliz. 104, Peterson's case. — Cro. Jac. 440, Bedo vs. Sanderson. — Cowp. 770, Richards vs. Brown. — Ibid. 112, Floyer vs. Edwards. — Cro. Jac. 507, Roberts vs. Trenayne. —2 Salk. 390, Mason vs- Abdy.†
      
    
    
      
      
        Cro Eliz. 200, Featherston vs. Hutchinson. — Ibid. 847, Coulston vs. Carr. — 1 Sid. 38.
    
    
      
       3 Esp. Rep. 209, Barnett vs. Stone. — 2 D. & E. 52, Auriol & Al. vs. Thomas.
      
    
    
      
       1 Hawk. P. C. c. 82, § 3.
    
    
      
      
        Stat. 1783, c. 55.
    
   * The Court

held that the including the 8 dollars 54 cents in the note was oppressive, but from the facts, as reported, it did not appear to have been taken as usurious interest. By the terms of the contract, the defendant might, by making payment in thirty and sixty days, have avoided every thing but the discharge of what was honestly due from him, for which the note was given as security. It was not then void as a usurious contract. The verdict relieved the defendant from every thing oppressive in the contract, except the sum included as the officer’s fees. That sum was directed to be deducted from the amount found by the verdict, and judgment to be entered on the verdict so amended. 
      
       When this authority was cited, the Chief Justice observed, that the third volume of SalkeWs Reports was a book of no authority, being a posthumous collection, and consisting only of a compilation of suck eases as Salkeld had himself considered as unworthy of publication
     