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Taylor, J. We are clearly of the opinion that the learned
judge erred. There was certainly some evidence to go to the juiy
upon the question as to the lawfulness of the defendant's acts upon
that evening. The nonsuit can only be sustained upon the ground
that a policeman in one of our cities has the right to rouse up the
family of any respectable citizen in the night, after they have
i"ctired, and force himself into his house, upon the mere statement
of uny person that he has heard that a woman of bad character is
stopping at such house. We do not wish to be understood as say-
ing that a i)oliceman would not have been justified in calling, in a
proper manner, at the house of a respectable citizen for the purpose
of obtaining information, and that under some circumstances he
would not be justified in calling for such information after the
family had retired for the night, if the circumstances were such as
required immediate action. If, in this case, the defendant had
good reason to believe that a boy of fourteen or fifteen years was at
the house with a lewd woman, and the father or brother of such
boy had requested him to go there for the purpose of ascertaining
the fact, and bring him away if he found him there, the defendant
would have been justified in calling up the family to make inquiry,
and in searching the house, unless forbidden by the occuftont. If
forbidden, and the policeman still insisted on making search, he
would undoubtedly be a trespasser unless he found the boy in the
house. But in this case the learned judge said that it made no
difference, in his opinion, that the defendant knew the boy was not
in the house of the plaintiff when he aroused up the family and
entered the house. In this we think the learned judge was
clearly mistaken. The defendant had no right to disturb the
plaintiff's family for the mere purpose of gratifying his inquisitive*
ness in regard to the whereabouts of this supposed lewd woman on
that particular evening. He had no knowledge that the woman
was in the house, and no such information on the subject as would
justify him in disturbing the peace of plaintiff's family after they

Digitized by


AUGUST TERM, 1880. §65

Bailej ▼. Ragats.

had gone to bed^ even admitting that it was his right and duty to
inform himself of her whereabouts. If the boy was not with her
on that night, and he knew that fact, there was no argent neces*
sity Tor calling at the plaintiff's house at an unusual time of night,
and disturbing his family, for the mere purpose of inquiring whether
the plaintiff harbored a lewd woman. It is very questionable
whether the defendant would, by virtue of his office as a policeman,
be justified in demanding an entrance into the plaintiff's house in
tlie night-time, and after the family had retired, even though the
boy ho claims he was looking for had been there* Having no war-
rant or authority for his arrest, we think he would not have been
justified in going further than making a proper inquiry upon the
subject, and requesting, in a proper manner, to be permitted to
enter the house to make search. He was not in a position to de-
mand an entrance. And as there is evidence tending to prove that
the defendant demanded an entrance into the house, and that he
entered against the will of the plaintiff, the court was not justified
in saying, as a matter of law, that the defendant lawfully entered
the house of tlie plaintiff. This was, at least, a question of fact
for the jury, and not one of law for the court.

We do not think that the law gives either an implied or express
license to a policeman to demand an entrance, or to enter into the
house of a respectable citizen at night, by way of the kitchen door,
after the family have retired, for the purpose of making insulting
inquiries as to the character of the house or its inmates; and
especially when such policeman has no information, either by hear-
say or otherwise, that the character of the house or its inmates is
bad. There can be no presumption of law or fact that the plaint-
iff, either expressly or by implication, licensed the defendant to
arouse his family after they had retired, by knocking upon his
kitchen door and demanding an entrance, by virtue of his authority
as a policeman of the city of Oshkosh. After a citizen closes his
doors at night, and retires with his family, the law does u6t imply
a license to any one to enter his premises and disturb the repose of
his family, except for some reason which fully justifies such dis-
turbance and entry. When the safety of the family or any of its
members requires it, the law will presume a license to enter, and
there are undoubtedly many other things which would justify such
entry ; but we are unable to see any thjng in the evidence in this
case which justified the defendant in disturbing the plaintiff and
Vol. XXXVI-109


Digitized by



Hamilton ▼. Proutj.

his family, and demanding an entrance into his hoase. The qoee-
tion whether the defendant finally entered the hoase by the exprea
or implied permission of the plaintiff, was a question of fact for
the jury; and the purpose for which he demanded theentranoe
was also a question of fact for the jury, and not of law for the
court. The facts as stated by the plaintiffs and his witnesses, ex-
cluding the testimony of the defendant, do not show that the
defendant was fully justified in doing what he did on the night in
question. And if the facts as stated by the defendant would be a
full justification, which we very much doubt, still the case should
have gone to the jury, as it is the province of the jury, and not of
the court, to determine what is the fact, where there is any con-
flict in the testimony.

By the Court — The judgment of the Cironit Court is reYened«
and the cause remanded for a new trial.

Hahiltoh v. Pbouty.

(fiOWIs S02.)

JSwretif — discharge — extension for definite period — umtrious consideration.

Ad agreement hj the holder of an overdue note with the maker, to extend the
time of payment " for twenty or thirty days/' in consideration of a nsorioiit
premium paid in advance, without the knowledge or consent of theindomr,
diechargefl the indorser. {See note, p. b71.)

APPEAL from the Circuit Court for Winnebago county. Action
on a note. The case is thus stated by Cassoday, J.:
" January 19, 1877, the defendant Crossman executed the note
in suit, dated on that day, wherein he promised to pay, one month
after the date thereof, to the order of the respondents, Prouty and
Le Fevve, at the appellant's office in Fond du Lac, t500, with
interest at ten per cent per annum until paid ; and the said Prouty
and Le Fevre thereupon indorsed the same, and it was then, for
value received, delivered to the plaintiff, Hamilton. Not being
paid at maturity, the note was duly protested for non-payment, and
due notice thereof given to Prouty and Le Fevre. Suit being
brought by Hamilton on the note, Prouty and Le Fevre, by way of
defense, alleged that after the note be<^me due, Hamilton, for a

Digitized by


AUGUST TERM, 1880. 867

Hamilton v. Prouty.

valaable consideration paid to him by Grossman, extended the time
of payment without the consent of Prouty or Le Fevre; and testi-
mony was given by them upon the trial tending to prove that about
the last of February, 1877, in consideration of from $15 to $26
paid to Hamilton by Grossman, the time of the payment of the
note was extended twenty or thirty days; and that about the last
of May, 1877, for another sum of money paid to Hamilton by
Grossman, another extension of fifteen or twenty days was obtained.

^* At the close of the testimony the counsel for the plaintifF asked
the court to direct a verdict for the plaintiff upon the grounds:
FirsL That no sufficient contract within the meaning of the law
applicable to a defense of this kind had been proven with any cer-
tainty. Seco7id. That as the note sued upon was bearing the high-
est legal rate of interest at the time of the supposed extension, and
was past due, the bonus paid by Grossman for each extension was
wholly usurious, and hence not such a consideration as would make
a binding contract which would preclude Prouty and Le Fevre
coming in and taking the necessary steps to secure themselves as
against their pnncipal. Third. That Prouty was present at the
time the contract for extension was made by Hamilton and Gross-
man, and was a party to it.

^' Each of these requests was denied by the court, and to each
ruling the counsel for the plaintiff excepted. The verdict, under
the charge of the court, was in favor of both respondents and
against the plaintiff for costs, and judgment was accordingly
entered, from which the plaintiff appeals to this court. There was
no motion to set aside the verdict, nor for a new trial, and na
exceptions to the charge.*'

Coleman <& Spence, for appellant.

Charles W. Felker and W. B. FelkeTy for respondent.

Gassodat, J. The question whether the agreement between
Hamilton and Grossman for the extension was with the knowledge
and acquiescence of Prouty was one of fact for the jury. Prouty
testified that it was not, and the juiy found with him, and that
must be regarded as conclusive.

The testimony shows that the first agreement for an extension
made by Hamilton and Grossman was for twenty or thirty days,


Digitized by




Hamilton v. Proatj.

and it is urged that this was too indefinite to operate as a discharge
of the indorsers. We are of the opinion however that the period
must be regarded as definite for at least twenty days, and there are
good authorities for holding the period to be sufficiently long to
discharge the indorsers, if the consideration was such as to make
the agreement binding. Brandt on Suretyship and Guaranty,
§ 298, and cases there cited.

Was the consideration such in this case ? Section 1689, R. S.,
which was substantially the law at the time of the transaction in
question, provides that *^ no person ♦ * * ghall directly or
indirectly take or receive ♦ ♦ ♦ any greater sum or any greater
value for the loan or forbearance of money, goods or things in
action than at the rate of $10 upon $100 for one year.** Section
1691, R. S., which was in force at the time, provides that " every
person who for any such loan or forbearance shall have paid or
delivered any greater sum or value than is above allowed to be
received, may by himself or his personal representative recover in an
action against the person who shall have taken or received the same,
or his personal representative, treble the amount of the money so
paid or value delivered above the rate aforesaid, if such action
shall be brought within one year after such payment or delivery."
Here the note by its terms was drawing the highest legal rate of
interest, and hence there can be no doubt that the money paid by
Grossman to Hamilton in February for twenty days' further " for-
beamnce," was a bonus in excess of the highest rate of interest
allowed by law, and therefore was wholly usurious. Meiswinkle v.
Ju7ig, 30 Wis. 361. The taking or receiving of it was not only
declared illegal, but was made punishable by creating a liability for
three times the amount, if the suit therefor had been brought
within the year. Was the usurious bonus so taken a sufficient
consideration to bind Hamilton so that he could not maintain a
suit on the note until after the twenty days' extension had expired?
This is the precise question to be determined.

In Meiswinkle v. Jung it was held, that while the usurious agree-
ment for an extension was executory as to both parties, it was void
as to both, and did not discharge a surety on the note. But the
question here presented did not there arise, because, as stated by
DixON, G. J., in the opinion, the jury must have found that the
$50 was not paid. It is 'true the opinion contains this sentence:
*' In the view which we are inclined to take of the law, that the

Digitized by


AUGUST TERM, 1880. 869

Hamilton v. Proutj.

usurious agreement was at all events utterly void, whether the $50
was paid or not, and that so the engagement, whatever it may have
been, to extend the time of payment, was nudum pactum and void
for want of consideration, all," etc. But this language, inspired,
doubtless, by a fresh reading of the vigorous opinion of Bron80N«
J., in Vilas v. Jones^ 1 N. Y. 286, therein referred to, was fully
explained by Judge Dixon himself in a subsequent note to JRiley
V. Gregg, 16 Wis. 666, and found in Vilas & Bryant's ed., pp. 697,
704-5, where, among other things, it is stated *' that the question
whether the lender, of his own mere motion, shall be permitted to
repudiate or assert the invalidity of an executed agreement, must
still be i*egarded as an open one." So the language of the late able
Chief Justice Btan, in Austin v. Burgess, 36 Wis. 186, 192, must
be regarded as applicable to the facts in that case ; for there too
the agreement was merely executory. The question presented,
therefore, though several times incidentally considered, has never
before been decided by this court. There is much conflict in the
decisions of the different States, and frequently in the same State.
It would be unprofitable to trace the comparisons or compare the
merits and demerits of the two different lines of reasoning. The
one jseems to begin where the other ends. The one declares the
contract void, and insists that it is so for all purposes and as to all
parties; the other admits that the contract is void, but insists that
the statute was enacted to protect the weak or necessitous borrower
against the avaricious lender, and hence is a weapon to be wielded
in defense of the party whom it was designed to protect, and not
for the benefit of the party whom it was designed to punish. In
the language of Sir William Grant, Master of the Rolls: **The
party in whose favor an usurious contract has been executed, can-
not make use of it for any purpose whatsoever." Barnard v.
Young, 17 Ves. 44, 46.

In the confusion of authorities upon this point, it is not so
important that our decision shall be supported by the greatest
number of adjudged cases, as it is to have it most in harmony with
the spirit and reasoning of the decisions of this court, and the
purpose of our statute.

In Woody. Lake, 13 Wis. 96, Dixon, C. J., said: "Both parties
are not understood to be in pari delicto; " and again: '' The penal-
ties of the law are all aimed at the lender, and none at the bor-


Digitized by



HamiltoQ V. Prouty.

In Eiley v. Gregg, 16 Wis. 606, the usurious agreement to forbear
was in part executed by the payee taking and using the horse, and
it was held that the surety was thereby i*eleased.
In Fay v. Lovyog, 20 Wis. 405, Dixon, C. J., said: "All -the
\ authorities agree that when interest money has been paid and

i' applied as such with theconsen t of the borrower, only the illegal excess

can be recovered back." In Bensley v. Homier, 42 Wis. 631, Ryan,
C. J., said '* Usury is malum prohibitum, not malupi in se. * *
* A borrower and a lender cannot properly be said to deal
together on equal terms. The necessity of one, and the power of
the other to relieve it, give an advantage to the lender over the
borrower. This may be so abused as to become an undue advant-
age. And exjierience has shown that the wants of borrowers and
the greed of lenders are the frequent occasion of grievous oppres-
sion. Hence arose statutes against usury. And whatever be their
form, their general policy is to protect the borrower against the
oppressive exaction of the lender. * * * It is difficult to per-
ceive why the defense given by the statute to the borrower for his
protection against oppression, and which he may waive at his pleas-
ure, should be extended to any one but himself and his representa-

In Ready v. Huebner, 46 Wis. 695; s. c, 32 Am. Rep. 749, the
opinion was written by our present chief justice, and it was directly
held that ** the defense of usury is personal to the debtor, his privies
in blood or estate, or privies to the contract."

We are clearly of the opinion that the defense of usury is so far
personal to the borrower and those in privity with him, that Ham-
ilton in this case, after having received the usurious premium, could
not the next day, by alleging his own usurious agreement and the
benefits he had received by virtue of it, have maintained an action
upon this note against Grossman and the sureties. In the language
of Reade, J., in Scott v. Harris, 76 N. C. 205, 207, 208: " It was
not for the creditor to say that the contract was usurious. His con-
science takes fright at a danger which may never approach him.
The debtor may plead usury or not at his pleasure, and unless and
until he does so, the note which was given for the usury is valid,
and a part of it has already been paid in goods. The contract was
sufficient to prevent the sureties from paying the debt and suing
the principal ; and that is the wrong of which they have the right
to complain." If then Hamilton's hands were tied by receiving the

Digitized by


AUGUST TERM, 1880. 871

Hamilton ▼. Prouty.

nsarious premiums until after the period of the exteusion had ex-
pired, there would seem to be no escape from the conclusioQ that
the indorsers were thereby discharged. We also cite the following
cases: Myers v. Banky 78 111. 257; WMmer v. Ellison, 72 id. 301 ;
Austin V. Dorwin, 21 Vt 38 ; Turrill v. Boynton, 23 id. 1^2 ; Bank
V. Woodwardy 5 N. H. 99 ; Oox v. Railroad Co,, 44 Ala. 611 ; Ken-
ningham v. Bedford, 1 B. Monr., 325 ; Armistead v. Ward, 2 Patton
& Heath, 504.

We therefore hold, (1) that an agreement for an extension of the
time of payment of a note past due for twenty or thirty days is for
a definite period of at least twenty days ; (2) that an agreement by
the holder of a note past due, with the maker, for an extension of
the time of payment for a definite period, in consideration of a
usurious premium paid in advance, without the knowledge or ac-
quiescence of the indorser, discharges the latter.

By THE Court — That portion of the judgment of the Circuit
Court appealed from is affirmed.

Judgment affirmed.

NoTB BY THB REPORTER.— See Ftfst Noi, Bk. of ChafioUe r. Lineberger^ 88 N. C. 4Si ; 8.
C 35 Am. Rep. 582. In Vary v. Norton, U. 8. Cir. Ct., W. D. Mich., Jan., 1881, it was held:
That payment of a certain sum of money for the extension of time upon a note, though
regarded as a payment of usurious interest, constitutes a valuable consideration under
the statute of Michigan, and the agreement to extend will operate to discharge a surety on
the note, if made without his ^consent. The courts are nearly uniform in their judgments
that a promise to pay usurious interest will not uphold an agreement to forbear, because
the promise cannot be enforced, though it was held otherwise in Wheat r. KendaU^ N. H.
604. But when the usurious simi has been paid, learned judges differ whether there is a
consideration to uphold the agreement or not. In New York and Vermont the statute'
declares contracts tainted with usury to be void; and if usury has been paid, it can be
recovered back, with a penalty against the taker. In the former State it was held by two
judges, without dissent from the other two, that payment of usury does not afford a con-
sideration. Vilas V. Jones, 1 N. T. 274. In Vermont, on the other hand, a united court
has repeatedly held the other way. ThirrtU v. Boynton, 28 Vt. 142; Burgess r. Dewey, 8t
id. 018. In South Carolina and Missouri such contracts are not void by statute, and in both
it has been held that usuiy paid wiU not uphold an agreement to forbear. ComtoaU r.
HoUy, 5 Rich. 47; Bank v. narris(m, 57 Mo. 508. In Wisconsin it was decided, in Jfeis-
winkU v. Jung, 30 Wis. 361, that usurious interest paid was not a sufficient consideration;
but in a recent case the earlier decision has been overruled. Hamilton t. Prouty. In
Kentucky, Indiana, Illinois and Ohio, the statute, like that of Michigan, does not maka
the contract void, and the decisions are uniform that usurious interest paid is a valnablt
consideration and upholds the agreement to forbear. Kunningham v. Bradford, 1 B.
Monr. 826; 8 id. 882; Cross V. TTood, 30 Ind. 878 ; WhiUemoreT. ElUaont TfilSL 901 ;MeOomk
w.KUUhdge,lk(Mo, 848 8eelPftr8.onKote8andBiUi<3ed.),M).

Digitized by


Digitized by



Aotion of breach of maniage promiae — right of oounael to cany on te
£•08.] An action for breach of promise of marriage abates bj the mar-
riage of the parties, and the coansel for the plaintiff cannot prosecate it
under a statate giring him a lien for fees. Earrig v. l)f$(m (Oa.), 196.

See Nbqotiable Inbtkumeivts, 375.

See Will, 716.

See Abatbmbnt, 196.


!• liability of bank for unauthorised aot of oaahier.] B. was cashier of a
national bank and treasurer of a savings bank. He took bonds belonging
to the savings bank, and as cashier and manager of the national bank
pledged them as security for advance to the national bank, and thej
were afterward sold by the pledgees, and the proceeds were credited to
the national bank. Beld, that the national bank was liable to the savings
bank for the bonds, although the directors of the national bank were
ignorant of the transaction. FUhkUl Savings Iiuiihttion v. National Bank

2. liability of principal for agent's fraud — measure of damages.] Where

an agent fraudulently misappropriates negotiable collaterals deposited
with him on a loan of the principars moneys, the principal is answerable
for the value ; and the borrower offering to pay the loan at maturity, the
measure of damages is the value of the collaterals at that time. Reynolde
V. WUU (S. C). 678.

3. Maritime lien — oharter party.] The plaintiff sent wheat to M., to be

shipped to Europe and sold on his account. M. shipped a part of It in hla
own name, on a vessel of which defendant was master, the defendant
having no knowledge or notice of the plaintiff's ownership. When the
cargo was half loaded, M. became insolvent, and refused to complete the
loading. HM^ that defendant had a lien on the wheat on board for
freight and charges. Hayes v. QampbeU (OaL), 48.

Vol. XXXVI— 110


Digitized by


874 INDEX.

AGENCT — Continued.
4. To mU — mortfagtu] Ad aathoritj to an agent to sell panonal property

doea not warrant him in mortgaging it. SwUasr v. WUoen (Eana.), 29.
PabUo, dolagatod to throo, one rafualng to exeoute.] 8&e Trust, 784.
8$e GONTBACT, 251 ; Evtdbhcb, 825 ; Inaubahcb. 280, 617 ; UsuxT, 248.

JSee Criminal Law, 80.

Of Judgment.] See Criminal Law, 797.

1. Xidiiry by dog — aoienter.] In an action for injary bj the bite of a dog, H
appeared that the dog was ferocioos, to the knowledge of his owner, and
that his owner had sometimes confined and mauled him. SM, that it
was unnecessary to prove that he had ever bitten mankind. CMteau v.
5(aod(Vt.), 751.

8. damages.] In an action for injury by the bite of a dog, the fear and

•olidtude as to poison are proper elements of damage. Id,

See Municipal Corporation, 808.

Not apportlonable.] A son, for a valuable consideration, agreed to pay bii
father a specified sum, on a fixed day, annually, daring the father's life.
The father died twenty days prior to the day for payment. BM, his ad-
ministrator could not recover the proportion accrued and unpaid at the
time of his death. Heieer v. Ueizer (Ind.), 202.

See Criminal Law, 82, 274.

See Criminal Law, 8, 120.

See Damaobs, 110.

1. Afft*g"^ — power to set aside fraudulent transfer.] An aasignee for the
benefit of creditors may set aside a prior fraudulent transfer by his t»
Bignor. PilUbury v. Kingon (N. J.), 656.

& Authority to carry on bnsineMi — discretion as to aaW.] An MslgBmeiit
for the benefit of creditors, authorizing the assignee " to carry on and

Digitized by


INDEX. 875

eondact said baftioessin his discretion, for saeh time as in his judgment it
shall be beneficial to do so, or to sell all of said goods and stock in trade
and property, at sach times, in sach manner, and for such prices as he

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 96 of 123)