United States v. Snow. Department will only be corrected by plenary proof of mis take, and when a claim for a pension has once been advanced it must be prosecuted to completion in five years, § 4717. It will be readily perceived that it may become an object of the utmost importance, to have a charge of desertion stricken out for other purposes than obtaining a pension. The diffi culty of securing the requisite evidence is frequently very great, and in this case, it was admitted that an expense of over $300 had been incurred by the defendant for that purpose. To limit his compensation in such a case to $10 would be an adherence to the letter of the statute which Congress could not have contemplated. It is believed no authority can be found exactly in point; but a class of cases arising under the usury laws announce the principle here involved, viz.: that when a lender has made unusual effort or incurred extraordinary expense in connection with the loan, an agreement to repay his charges for services and disbursements, if made in good faith and not merely as an evasion, will not be deemed usurious. In the early case of Auriol v. Thomas, 2 Term Reports, 52, it was held that where a bill endorsed over is not duly paid, the indorsee may charge the indorser with exchange, and other incidental expenses beyond the amount of legal interest, if such charges be reasonably warranted by custom and not made a color for usury. This authority was followed in Palmer v. Baker, 1 Maule & Selwyn, 56; and in Baynes v. Fry, 15 Vesey, 120. In Harger v. McCulloch, 2 Dennison, 119, it was held that where a creditor at the request of the debtor, and upon his express promise to pay the expenses, took a journey to the residence of the latter with a view to settling the demand, and afterwards included such expenses in a security taken for the debt; the security was not usurious. This case was approved in Thurston v. Cornell, 38 New York, 281, in which it was held that where a party United States v. Snow. solicited to make a loan, and to procure the means of doing so, must spend time, and incur trouble and expense in collecting the same from others, and does this at the request of the borrower, and upon his agreement to pay for such services and expenses, the transaction is not usurious. Whether the payment upon a loan of more than the legal rate of interest is usurious, depends upon the particular facts of the case and the intention of the parties, and these are questions for the jury. If paid for the loan or forbearance of money it is usury, but if the excess is for other good and valuable. considerations, not interposed as a device to cover usury, the transaction is not usurious. The same principle was stated in Eaton v. Alger, 2 Keys, 41, in which the court observe: "even where the lender, without any special agreement with the borrower, in addition to lawful interest, takes a commission, by way of compensation for trouble and expense necessarily incurred in and about the business of the loan, the transaction would be supported, provided such commission was not intended as a device to cover a usurious loan.” See, also, to the same effect, Eldridge v. Reed, 2 Sweeny, 155; Beadle v. Munson, 30 Connecticut, 175; Gambril v. Doe, 8 Blackford, 140; Smith v. Silvers, 32 Indiana, 321; Smith v. The Muncie National Bank, 29 Indiana, 158; Tyler on Usury, 130. In the case under consideration, if the agreement set up in the plea were made in good faith, for services actually performed as therein stated, and not as a mere pretext for charging more than the statute allowed for obtaining a pension, the defendant is entitled to an acquittal. I am not called upon to determine whether his charge be reasonable or not; that must be litigated in another forum; the question of good faith only is here involved and that must be submitted to a jury. An order will be entered overruling the demurrer. The Oriental. THE ORIENTAL. DISTRICT COURT-NORTHERN DISTRICT OF OHIO-APRIL TERM, 1877. In the admiralty, the court will not, on mere motion, at a subsequent term, set aside a decree made at the hearing. The facts are fully stated by the court. Newberry, Pond & Brown, for the motion. Ingersoll & Williamson, and Willey, Terrell & Sherman contra. WELKER, J.-At the January term, 1876, of this court (on 22d February) this cause came on for trial on the issue, the respondents and claimants or their proctors not being present. The libellant demanding a trial the same was had and a decree entered for him. Notice of appeal was entered by order of the court on behalf of claimants and respondents. No appeal was taken. Afterward, at the April term, 1876, of this court, to-wit: on the 4th day of May, the claimants and respondents filed a motion to set aside the decree for the reason that the hearing upon which the same was rendered, and its rendition was a surprise upon the respondents and proctors in the cause. This cause was commenced on the 3d day of October, A. D. 1870. The claim of the respondents and their answer were filed on the 21st day of November, A. D. 1870, and The Oriental. had been continued from term to term until the term at which it was tried. Numerous affidavits are filed in support of the motion, and also affidavits against it. It appears in substance from the affidavits of the respondents, that their proctors resided at Detroit, and those of the libellants at Cleveland. That Moore & Griffin, who reside at Detroit, as proctors for the libellants, had served notice. upon respondents' proctors to take depositions at Detroit in 1873 and in 1874; that depositions were taken under that notice by Moore & Griffin; that ever since this cause was commenced the proctors of the respondents had the constant assurance from Mr. Moore, one of the firm, that notice would be given them of the trial of the cause, and that reliance was placed upon that assurance, and no such notice was ever given. It also appears that Moore & Griffin were only employed to take the testimony at Detroit, and were not present at the trial or knew of it, trial being conducted by the proctors of record at Cleveland. Affidavits were also presented by libellants, tending to show notice of intent to demand trial at the January term; and others on behalf of respondents denying any notice. No allegations are made of any fraud practiced by libellants or their proctors, except the failure of Moore to give notice to respondents' proctors of intent to demand a hearing; nor does it appear that the proctors of record at Cleveland had any knowledge of the arrangement with Moore as stated. But the view I take of the motion makes it unnecessary to consider the affidavits on either side. The motion is made after the term at which the trial was had and decree entered. Can a decree be thus set aside at a subsequent term of the court? Or should a motion for that purpose be considered when not filed at the term? The Oriental. There are numerous authorities for setting aside decrees pro confesso in chancery obtained by fraud at a subsequent term, but only on petition filed in regular form for that purpose, and on which evidence can be taken in the regular way to establish the fraud. But I find no case in admiralty where a decree on a hearing was set aside on motion at a subsequent term. By general Admiralty rules 29 and 40, it is provided that the court may, in its discretion, upon the motion of the defendant and payment of costs, rescind a decree in any suit in which on account of his contumacy and default the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered. In an early case, The Illinois, Judge Wilkins, of the Eastern District of Michigan, refused to set aside a decree after the lapse of ten days, in a case where the decree had been entered up in the absence of the respondent or his proctor, who was at the time engaged in trying a case in one of the country circuits; holding that he had no power to do so after the lapse of ten days. This rule was adopted in the case of Northop v. Gregory, 2 Abb. U. S. 503, by Judge Longyear, of the same district, holding that a motion to open a decree in admiralty entered by default must be made within ten days after the entry of the decree. These decisions, in a recent case decided by Judge Brown, Thompson v. Carson, of the same district, were cited and approved by him-(manuscript.) The general rule is that after the adjournment of the term, courts have no power to change their judgment or decree on a mere motion. Other machinery has been devised in the law to correct errors at subsequent terms which must be used for that purpose. This motion, not having been filed until after the adjournment of the January term, cannot, therefore, be granted and must be overruled. |