and Johnson, on the part of Mr. Martin, or rather on behalf of the state, which had guarantied Mr. Martin's title. In the course of these arguments, almost all the old doctrines of forfeitures and attainders for treason and rebellion, were fully gone into and investigated on both sides; but as they were very long and uninteresting, (at the present day,) they are not incorporated into the report of this case, and the more especially, as not only the constitution of the United States, but the constitution of this state, and those of all the other states in the union, have forever excluded the idea of bills of attainder, or ex post facto laws; as utterly inconsistent with the principles of public justice, and the rights of innocent unoffending individuals. For these reasons, the opinion of the court only is subjoined, which was delivered by Mr. Justice BURKE, to the following effect : Wells V. Martin. No forfeiture at common law, for trea son, till the offender is convicted and judgment pronounced aThen and not That the judges had considered the question, and were unanimous in opinion, that Mrs. Wells was not deprived of her right to dower, either by the common law, or by the act of confiscation. By the common law there was no forfeiture for treason, till after trial and conviction, and the judgment of the court pronounced against the offender. It was one of the consequences which resulted to the crown from such conviction and judgment; but until that took place, and was recorded, the crown had no right; but, when judgment of death, or sentence was once pronounced against the offender, the immediate consequence by the common law, was attainder: he became attaint, or in other words, put out of the protection of the law. The further 4 Black. 375, consequences of attainder were forfeiture and corruption of blood, by which a man forfeits to the king, all his lands and tenements, which for ever afterwards become vested in the crown. That the common law was of force in South Carolina, and formed by far the greatest and most important part of her system of jurisprudence. gainst him. till then, he becomes at tainted, which works the for feiture. 374. Wells V. Martin. SeeMrs. Mon gin's case in dower. Bay's Rep. vol. 1. p. 73. Riley's edit. That Mr. Wells had never been called upon to answer for the offence of treason, in any court of competent jurisdiction, consequently there never was any conviction or judgment for that offence against him. He never became attainted, so as to incur the penalty of forfeiture of his lands to the state, agreeable to the rules of the common law. It was clear, therefore, that his widow's claim of dower remained unimpeached at common law. That the statute regulations of the state, were properly to be considered only as supplementary to the common law, which was not to be altered by construction or implication, but by express terms. There was nothing, however, in the act of confiscation (severe as it was) which amounted to an attainder, or which expressly altered the common law in this particular. There was nothing in the act, which de clared Mr. Wells guilty of treason or rebellion against the state. His name, to be sure, is on the list No. 1. annexed to the act; the preamble of which recites, "that it would "be impolitic and unwise to afford protection to those persons," &c. and then it goes on and declares them for ever banished from the state, and their estates confiscated to the public, &c. And although the act vested his estate in the public, and authorized commissioners to dispose of the same, yet there is a clause reserving the rights of individuals, having any prior claims; as judgments, mortgages, marriage settlements, and the like, &c. The right of dower, it is true, is not mentioned in this proviso in the act, but then it is a common law right, which has a preference to judgments, mortgages, or any other incumbrances made or suffered by the husband in his life-time. It is paramount to all the other kinds, of what nature soever they might be, and it is given not by the act or curtesy of the husband, but by operation of law; it is a claim of the highest nature known in law, and one which the courts of justice have ever held sacred. He then mentioned the case of Mrs. Mongin, brought up from Beaufort district, in the year 1789, whose husband had been put on the confiscation list in the same manner as Mr. Wells, in which it was deter mined by GRIMKE, WATIES and DRAYTON, then present, that the right of dower was a common law right, which the widow was entitled to, and which was in no wise impeached by the confiscation act. Wells V. Martin.. Same point decided in the state of New-York. 27 It was therefore ordered, that a writ for the admeasure- Johnson's Cases, vol. 1. p. ment of dower in the premises in question, should issue to commissioners, pursuant to the directions of the act, &c. Present, BURKE, GRIMKE and BAY. WILLIAM PAYNE, Indorsee of two promissory notes of hand, against PETER TREZEVANT. UPON a motion to set aside a verdict, and grant a new trial, on the grounds that the finding of the jury was against law, evidence, and the opinion of the judge, before whom the cause was tried. Charleston District,1796. A note of hand usurious between the original par ties to the transaction, is absolutely null and void even in the hands of an recover a gainst an indorser, on a This was an action on two promissory notes of hand, the one indorsed to the plaintiff, for 580%. and the other payable to him, for 271. 1s. 4d. sterling; tried by a special jury in Charleston, before BAY, J. in July, 1796, to which there was a plea of non assumpsit, and another of the statute of usury. The report of the presiding judge was as follows: count for moThat on the trial of the cause, Mr. House, a broker, was received. called to prove the usurious transaction in its origin; but who negotiahe was objected to by Mr. Desaussure, on two grounds: ted the busiFirst, that he was payee of the notes, and had indorsed borrower and lender though them, in order to give them circulation. It was evident the payee of therefore, he said, that he was a highly interested witness in competent ney had and A broker ness between the note is a witness to prove the usurious transaction. Sending notes into market, under pretence of sale, to raise money, is a shift to elude the statute, if the money is to be returned. Wherever a return of the money is contemplated by the parties, it will constitute a loan and not a sale. Payne V. Burr. 251. 2256. the question before the court: and secondly, because he was called upon to invalidate a security, which he had given; and that an indorser of a note, independent of the question of interest, could not be permitted to prove the notes void, which he himself had indorsed, as it was very clear, if the notes were found to be usurious, he never would be liable to pay them and relied upon the case of Walton and others v. Shelly, 1 Durn. & East, 296. as in point. : Pinckney, for defendant, thought the objection in this case, rather went to the credibility, than the competency of the witness; that he was in no wise interested in the event of this suit, one way or the other, and might be well compared to an insurance broker, who had underwritten a policy of insurance, who is a competent witness in an action on the same policy, against those who underwrote before him. 3 Durn. & East, 27. On another ground, he said, he ought to be received from the necessity of the case, otherwise the statute against usury would become a dead letter. Those kinds of transactions, he said, were generally done in so secret a manner, for the purpose of raising money, that unless brokers or those persons entrusted with the management of these kinds of concerns, were admitted as wit-. nesses, the practice of usury would scarcely ever be developed or found out. After hearing arguments upon both sides upon this point, the judge ruled, that Mr. House, the broker, was a competent witness. That the defence in this case was not a common law defence, and to be governed by common law rules of evidence alone: but it was a defence created by statute, which was a transcript of the statute of Anne, and was a remedial one, to prevent usurious practices; and therefore ought to have a liberal construction. That by the tenor of this act, the defendant himself was declared to be a competent witness, contrary to the rules of the common law, to prove the usury. And if the act made the defendant a competent witness in his own cause, then surely there could be no solid objection to third persons, who could not possibly be more interested in the event of the suit itself, or in the determination of the question, than the defendant. Therefore, the ground of interest being entirely done away by the terms of the act itself, there could be no objection to the witness on that account. On the ground of necessity, he was of opinion that he should be admitted. For if a broker, through whose hands these negotiations pass, was refused to be admitted, it would really render the act a nullity. The borrowers and lenders are seldom known to each other; they have no communication together on the subject; so that there is not one borrower in twenty who could swear that the whole sum mentioned in the bond or note was not paid down or advanced by the lender at the legal interest. It is only, therefore, through the broker that the real truth of these kind of trans actions can be established in a court of justice. Mr. House was then sworn for defendant, and he proved, that some time in the month of December, 1794, he was applied to by the defendant to raise him 500l. on loan for four months, for the use of which he would give sol. at the rate of four per cent. a month; and would also deposit, as a collateral security for repayment of the 5801, the principal and interest, at the expiration of that time, to the lender, a Georgia certificate which he then held for 2,000l. sterling. That he, the witness, knowing that Mr. Moses Sarcedas was at that time in the habit of lending money, went to him, andasked him if he would advance the 500l. to the defendant, for the time and upon the terms before mentioned, to which he agreed. That the witness then went back to the defendant, and got the note, payable to himself, for 580% sterling, and the certificate of the state of Georgia for 2,000. sterling as a collateral security, which he delivered to Sarcedas, who paid him 500. sterling, and gave him a receipt for the Georgia certificate for the 2,000l. which he engaged to re Payne V. Trezevant. |