Where a judgment is obtained by a regular proceeding, in the ordinary way, without collusion, it is conclusive, though the subject matter upon which it was rendered, may be usurious. And a note, given as security upon such a judgment is valid.(h) The creditor who sues upon a contract, in the least affected with usury, whether it be written or verbal, is subjected to the loss of his whole debt, for all is void, and as though it had never been. But where the money has been paid, the excess only can be recovered back.(i)

If the contract to pay money, or other thing, be fair and valid in its creation, not having been made for usurious purposes, any subsequent agreement of forbearance upon usury, or any other usurious transaction, would not avoid it, though the usury paid, might be recovered back. (j) And where a valid contract is taken up, and a usurious one given as a substitute, the second one being void, the first remains binding, and may be sued upon.(k)

A subsequent security taken by the creditor, or any one claiming under him, not bona fide, as a substitute for a usurious contract, or any part thereof, or as security for fulfilling the same, or any part thereof, or indeed in any way connected with, or dependent upon it, follows the fate of the first, and is absolutely void.(7) This is to be understood however, when the substituted contract is given upon the same terms as, and in consideration of, the first agreement; the case is different, when the parties repent of their usury, and destroying the vicious security, enter into a new contract which is valid and legal.(m) And when a usurious note is transferred for valuable consideration, and without notice, and a new note is taken by the holder, the usury of the first note cannot be set up in bar of a recovery on the second.(n) Where I become bound for you, to pay a usurious debt, and you agree to indemnify me, you are bound by such counter agreement. (o) And where I lend you money on usury, and to pay me you become bound to A, whom I justly owe, A, being ignorant of the usury, such contract in the hands of A is valid.(p) And where a mortgage is given on a usurious consideration, a bona fide purchaser under the mortgagee will not have his rights, as such purchas

(h) 2 Caines, 150.

(i) 1 R. S. 760.

(j) 2 Caines' Cas. in Er. 66, and vid. 9 Cowen, 65; 1 Pet. 37; 7 id. 109; 1 MeCord, 354.

(k) For the above doctrine generally, from note (c), p. 258, to this note, vid. Ord on Usury, 64 to 88, and cases there cited. And Vid. Com. on Usury, 187, 8, 9, &c. (4) 9 T. R. 531. 5 Taunt. 780. 2 Conn.

R. 276. Vid. Com. on Usury, 183. 9
Cowen, 647. 5 Conn. R. 154. 3 N. H.
R. 188. 15 Mass. R. 100.

(m) Vid. Com. on Usury, 183.

(n) 7 Wen. 256. Com. on Usury, 185. (0) Ord on Usury, 100. Com. on Usury, 196.

(p) Ord on Usury, 98. Com. on Usury, 170. 10 John. 185.

er impeached for the usury. But it would be otherwise if he had notice of the usury, gave no consideration, or was not a bona fide purchaser in every other respect.(7)

It is provided by the Revised Statutes, (r) that no justice of the peace or constable shall, directly or indirectly, buy, or be interested in buying any bond, note or other demand, or cause of action, for the purpose of commencing any suit thereon, before a justice, nor shall any justice or constable, either before or after suit brought, lend or advance or agree to lend or advance, or procure to be lent or advanced, any money or other valuable thing, to any person, in consideration, or as a reward for, or inducement to, the placing or having placed in the hands of such justice or constable, any debt, demand or cause of action whatever, for prosecution or collection.

By the next section, (236,) such offence is declared a misdemeanor, subjecting the offender to fine and imprisonment; and the conviction further operates as a forfeiture of the justice's or constable's office.

The next section (237) provides, that the defendant in any suit to be brought in any action of debt, covenant or assumpsit, may give notice with his plea, in addition to any other matter of defence, that on the trial of the cause, he will insist and prove that the demand on which such action is founded, has been bought and sold, or received for prosecution, contrary to law, without setting forth any other particulars.

The statute further provides, (§ 238,) that the defendant in any such suit, may serve a notice on the plaintiff two days before the trial, requiring him to appear personally on such trial, to be examined; and it shall be the duty of the plaintiff to attend such trial for that purpose, and in case of such attendance, he shall be entitled to the like fees as are allowed by law to witnesses; but the plaintiff shall not be so summoned nor required to attend the trial, to give evidence as aforesaid, except from the same county, or the county next adjoining that in which the cause is tried.

(§ 239.) In case such plaintiff shall not attend such trial, he shall, on proof of the due service of such notice, be non-suited in such action, unless such failure to attend shall be accounted for to the satisfaction of the court; in which case the court may postpone the trial, on the plaintiff's paying the costs of preparing for the trial. And if such plaintiff shall not attend at the time to which the trial shall be postponed, he shall be nonsuited.

($240.) On the trial of the cause in which such notice shall have been

(9) 10 John. 185.

(r) 2 R. S. 194, § 235.

given, if the defendant shall require it, the plaintiff and his attorney, and any other who may be interested in the recovery in such cause, shall be examined on oath, touching the matters set forth in such notice.

(§ 241.) If any such plaintiff so required to be examined, or if any person interested in the recovery of the suit, shall refuse to answer on oath, such questions as shall be pertinent to show a violation of the provisions of this article, or if on such examination it shall appear that the cause of action on which such suit is founded, has been bought or procured, contrary to the true intent of the provisions of this article, the plaintiff in such action shall be nonsuited.

The notice to be given with the plea, where this defence is set up, may be in the following form:

Take notice that the said defendant will, on the

trial of this cause, insist and prove that the demand on which this action is founded, has been bought and sold or received, for prosecution, contrary to law. Dated 1st day of June, 1839.

This notice may be given in addition to any other matter of defence which the defendant may choose to set up, and it may undoubtedly be incorporated in a notice setting forth other matters, as a notice of set off, or indeed any other notice of special matter.

The notice to attend, required to be given to the plaintiff, may be in the following form:

JUSTICE'S Court.

Richard Roe
ads.

James Jackson.

SIR

Before Ransom Cook, Esq., one of the justices of the peace, in and for the county of Saratoga :

Take notice, that you are hereby required to appear personally on the trial of this cause, on the 7th day of June instant, at 1 o'clock P. M., at the office of the above named justice, in the town of Saratoga Springs, in said county, in order to your being examined on oath, pursuant to the provisions of article 13, title 4, chapter 2, part 3, of the Revised Statutes of the state of New-York. Dated June 1st, 1839.

To Mr. James Jackson,

pl'ff in this cause.

Yours, &c.

RICHARD ROE,

def't in this cause.

This notice should be delivered to the plaintiff personally, if to be found at his usual place of residence. If not, it would probably be suffi cient, within the rules laid down by the supreme court, regulating the mode of service in like cases, to leave it at the plaintiff's dwelling house with his wife, servant, or some one of the family.(s) It is also to be observed that the notice would be inoperative unless served in the same county or the one adjoining that in which the cause is to be tried. It should also be served at least two days before the trial, exclusive of the day of service; for in the service of all notices, one day is to be taken inclusive, and the other exclusive.(t) So that a notice to appear on the 7th of June, should be served at least as early as the 5th of the same month. This may be done, although Sunday intervene between the day of service and the day of trial.(u) When a statute requires a notice to be given a certain number of days before a given day, the days must be computed as clear days, excluding the first and last.(v) Thus in the case of the notice we are considering, if the language of the statute were, that the notice should be given two days before the day of trial, the latter rule of computation would be the correct one.

As we shall have occasion hereafter to advert to the above rule, and some other rules relating to the computation of time, in proceedings before justices, as well as in execution of process, issuing from a justice's court, we may as well in this place mention that, as a general rule, WHEREVER A TIME IS MENTIONED, EITHER IN A STATUTE OR CONTRACT, to be computed from an act done, or from the date of a contract or other date, the day of doing the act, or of the date, is to be excluded in the computation.(w) The same rule prevails in England in computing time upon notices, but a contrary mode of computation is adopted upon statOur courts have departed from the English rule, and have applied the same rule of computation both to statutes and notices.(x) Thus an execution dated March 7th, and returnable in thirty days from date, was held to continue in force until after the sixth of April. (y) In computing the time allowed for service, on a justice, of a notice of appeal, under the act of 1818, which limited the time to four days after the rendering of judgment, it was held that the day of rendering judgment must be excluded.(z) So in a case of redemption of lands by a judgment creditor; the language of the statute was, it shall be lawful for any creditor, &c.

utes.

(3) Vid. 7 John. 96. 4 T. R. 465. S

John. 439. 2 Price, 4.

(t) 8 John. 261. 5 id. 232.

(u) 3 id. 261.

() 5 Wen. 187.

(w) 2 Cowen, 605 and 518. 6 id. 659. 9 Wen. 346.

(x) I. ibid.

(y) & Cowen, 659.

(z) 2 id. 605.

within fifteen months after such sale, &c.; it was held, that where the sale was on the 15th of August, 1822, the creditor had the whole of the 15th of November, 1823, in which to redeem.(a)(1) So a lease of premises from the first day of May in one year to the first day of May in the succeeding year, excludes the first day.(b) And in this last case the court say, that in this state, in questions of the computation of time arising under our own rules, our statutes, and upon promissory notes, we hold that the day of the date is excluded; upon the same principle, if the lease is to hold from and after the first day of May, it would seem to follow that the first day is excluded.

It is said that in England, from the date, or from the day of the date, may be either inclusive or exclusive of that day, according to the context or subject matter, and the courts will construe the words so as to effectuate the deeds of parties, and not destroy them. (c) In South Carolina, in the case of Williumson v. Farrow,(d) it was held that wherever a forfeiture would be incurred by considering the day of the date, or an act done, as inclusive, then it should be considered as exclusive, and this rule was deduced from the English case just cited. The rule in our own state is happily reduced to a mathematical certainty, independent of all collateral questions of construction.

The space of a year, consists of 365 days; a half of a year of 182 days; and a quarter of a year of 91 days. Bissextile or leap year, contains 366 days, but the added day of a leap year and the day immediately preceding are to be reckoned together as one day.(e)

A month, in law, is a calendar month, and not a lunar month, unless otherwise expressed by the legislature in a statute, or the parties to a contract.(f) A lunar month consists of 28 days, the supposed revolution of the moon, thirteen of which make a year; calendar months are of unequal lengths, according to the Julian division in our common almanacs, whereof in a year there are only twelve.(g)

(1) In a case recently decided by the supreme court, where the year, the time for redemption by the judgment debtor, expired on the 18th of July, inclusive, the language of the statute being, that in case of the omission of the debtor to redeem, then that any junior judgment creditor might redeem “within three months after the expiration of such year," it was held, the debtor failing to redeem within the time, that the three months expired on the 18th of October following. 19 Wen. 87, 8, and vid. the opinion of the court at large.

(a) Id. 518.

(b) 9 Wen. 346.

(c) Cowp. 714.

(d) Carolina Law Journ. 184. Vid. al

so 15 Ves. jun. 246. 1 Ball & Beat. 193.

(e) 1 R. S. 615.
(ƒ) Id.

(g) 2 Bl. Com. 141.