Hetfield v. Newton. not interfere with the defence of usury or extortion to that mortgage. Nor will a decree in this suit in Newton's favor, be a bar to Dayton's foreclosure. My conclusion is, that Dayton is a competent witness. As to his credit, it may be observed that all the material witnesses on both sides, except Cory, are near relatives of the respective parties, or intimately connected by their present or former domestic relations. And Cory at one time had an unpleasant altercation with Dayton. Thus the testimony of all, demands a close and careful scrutiny. On the merits of the case, the first thing that occurs upon the defence, is a variance between the usurious contract alleged, and that which is claimed to have been proved. The answer, after stating a proposal by the Newton's for a loan $2000 or $2500, at seven per cent. interest, and they giving in addition $300, secured by a separate mortgage, and the complainant's assent to those terms; proceeds to set forth that Dayton came with $2000, that they wanted $2600, and he proposed to furnish the $600 from his own funds. And the final agreement as stated in the answer, is that the complainant was to advance $2000, Dayton was to give two notes, one of $150, and the other of $150; and the Newton's were to secure the $2600 by the mortgage in question, bearing lawful interest, and to execute another mortgage for $300, for the usurious interest. Now the evidence does not sustain this statement in any of its particulars. If the $2600 be regarded, aside from the notes given by Dayton, the proof is clear that Hetfield agreed to loan and did loan the whole of it; and that although Dayton's notes were given for a part, (but not for $600,) he did not pay any portion of the amount. If the agreement be considered with reference to its minor stipulations, then it is proved that Hetfield was to make the whole loan, $2052 in cash on the delivery of the mortgage, and $548 in Dayton's two notes, one for $414, at six months, and the other for $148. In this court, as well as at law, the proof of usury must strictly sustain the allegation in pleading. Any variance in its substantial terms, is held to be fatal. (Vroom v. Ditmars, 4 Paige, 526; New Orleans Gas Light and Banking Co. v. Dudley, 8 ibid. 452; Smith v. Bush, 8 Johns. 84.) Under these authorities, Hetfield v. Newton. I have no doubt that the variance in this case is material, and is fatal to the defence. I have nevertheless considered the testimony in the cause, and will briefly state my conclusions. The important question as to the usury is this: Was Dayton the agent of Hetfield in negotiating the loan, or was he the agent of the Newton's? The amount which he claimed and secured as his compensation, is not very material in this respect. If he were Newton's agent, the exorbitance of his charges is nothing to Hetfield. If he were Hetfield's agent, he had no right to make any charge against the Newton's for his services. Notwithstanding Dayton's liberal use of the pronouns, I and we, in his conversations about this affair, it is very evident that the Newton's did not expect him to make them a loan. He told them distinctly, on their first application, that he had no money to let, and there is no proof in the case that he had any, either in 1839 or 1840. He at the same time told them that Hetfield had money, and he thought he could make an arrangement for them with Hetfield. But in this he was mistaken, and the sale of the mortgage, which the Newton's proposed to make to raise money in 1839, was made elsewhere, and that negotiation dropped. Newton's letter of January 18th, 1840, in connection with the previous transactions, is conclusive that he expected Dayton to obtain the money from Hetfield or some other person, and that he did not look to Dayton at all, as the lender of the money. He proposed the same terms as he had offered on the prior negotiation, viz: interest at seven per cent.; and he also offered to give to Dayton a mortgage of $300, to compensate him for doing the business. A letter of Dayton's, in answer to this, dated February 26th, 1840, is not produced, and the omission is a strong point against the defendants, on this important part of the case. It probably contained the distinct exposition of Dayton's true position in this matter of agency. Pausing at this stage of the case, we find Newton desiring a loan, applying to Dayton, who had no money, to procure it for him at seven per cent., and offering for his services, a bonus or VOL. III. 72 Hetfield v. Newton. commission of $300. This was clearly an agency for Newton. It was of no consequence to him whether Dayton procured the loan from Hetfield, or from John Doe. To proceed, Dayton applied to Hetfield, and procured it from him. He applied at Newton's request. He did not ask Newton in behalf of Hetfield, to accept a loan. The difference of one per cent. between New York and New Jersey interest, was an obvious inducement to Hetfield to make the loan. Unless Dayton is perjured, Hetfield knew nothing about the $300 proposed to be given to Dayton, and Hetfield's assertion to that effect made to Peck, which the defendants proved, corroborates the testimony of Dayton. Up to the time that Hetfield consented to make the loan, Dayton was the agent of the Newton's beyond all doubt. From that time, until it was completed, he continued to be Newton's agent to effect it, and he was also Hetfield's agent to transmit the money, and receive and look to the security. But in the controlling feature of the case, the negotiation for the loan, he was in no respect the agent of Hetfield. He was acting for the Newton's, and Hetfield was acting and bargaining for himself. This is my conviction upon the evidence, and if I am right in this conclusion, the principle of the cases of Dagnall v. Wigley, (11 East, 43;) Coster v. Dilworth, (8 Cowen, 299 ;) and Crane v. Hubbell, (7 Paige, 413;) is decisive against the defence. In Reed v. Smith, (reported in 9 Cowen, 647,) though decided nearly five years before Coster v. Dilworth, it was palpable that the plaintiff was the actual lender of the money. The court dwelt upon the fact that the note never went out of his possession, and he negotiated the renewals and every part of the transaction. To make this case analogous to Smith v. Reed, the defendants should have set up that Dayton was in truth the lender of the money, and that the use of Hetfield's name was colorable throughout. On the defence attempted by the proofs, as well as upon the point of variance, the complainant is entitled to a decree. The principal sum being now due, the decree may be for a reference to compute the amount due, and for a sale on the confirmation of the master's report. Oppenheim v. Leo Wolf. OPPENHEIM v. LEO WOLF and THE PUBLIC ADMINIS TRATOR. It is no objection to a bill of interpleader, that the complainant has an interest in respect of other property not in the suit but which might be litigated, that one party rather than the other should succeed in the interpleader, so as to increase his own chance of success, in respect of such other property. Such interest may be termed an interest in the question, but not in the particular suit, and does not prevent him from filing an interpleader. If however the complainant be liable to either party in respect of the specific fund in dispute, beyond the question of property, or make claims on the fund which either of the defendants contests, it is not a proper case for an interpleader. J. having placed goods in the hands of O., as a security for advances, obtained the goods on a promise of other indemnity, and departed from New York to go to Liverpool, on the 11th of March, 1841, in the steamship President. Nothing was ever heard of the ship or of any person who sailed in her, after she left the harbor of New York. In April, and again in May, 1841, J.'s Attorney placed securities in the hands of O. for the promised indemnity, and directed O. to pay the surplus to W., to whom J. was largely indebted; to which O. agreed. In August, 1841, administration was granted on J.'s estate. There being a surplus it was claimed from O. by W., and by the administrator of J., and each sued O. at law for the same. The administrator did not question O's right to the indemnity. Held, 1. That it was a proper case for a bill of interpleader by O. against the rival claimants; and that he was under no personal obligation to W., which prevented his resorting to that remedy. 2. That J. is presumed to have been lost at sea, before May, 1841; and the powers of his attorney were thereby terminated. 3. That the adininistrator was entitled to the surplus. Facts, which are a part of the experience and common knowledge of the day, are legitimate grounds for the judgment of the court. This principle applied to the usual duration of voyages across the Atlantic, by steam and other packet ships. May, 12; May 30, 1846. IN November, 1840, the complainant lent his notes for $3,100, to Joseph Leo Wolf, which the latter agreed to protect; and for that purpose he lodged merchandize with the complainant, This was subsequently relinquished on an agreement of indemnity in some other mode; but before completing it, J. Leo Wolf Oppenheim v. Leo Wolf. departed from New York for Liverpool, in the steamship President, on the 11th of March, 1841. This vessel and her ill fated passengers and crew, as it is well known, have never been heard of since her departure from this port. In April, 1841, Louis Leo Wolf, who was the general attorney in fact of Joseph, delivered to the complainant, securities belonging to Joseph, for the indemnity agreed upon by Joseph against the advances made by the complainant to take up the notes; and in May, 1841, Louis transferred to him additional securities for the same purpose. On delivering the latter, the attorney directed the complainant to pay over the surplus, if any there were to William Leo Wolf, who was a large creditor of Joseph, and the complainant assented to make such payment. On the 25th day of August, 1841, on proof of the facts relative to Joseph Leo Wolf's supposed death, letters of administration on his estate were granted to the public administrator in the city of New York. There was a considerable surplus, arising from the securities transferred to the complainant, after indemnifying him; and in September or October, 1841, William Leo Wolf formally claimed such surplus from the complainant, and a like claim was made about the same time by the public administrator. Both commenced suits at law against the complainant, to recover the surplus; upon which the latter filed a bill of interpleader, paid the surplus into court, and obtained an injunction, staying the suits at law. The administrator, in his answer, admitted the complainant's right to hold the securities, to the extent of his advances; and insisted that Joseph Leo Wolf died within a few days after the 11th of March, 1841, whereby the authority to Louis, his attorney, expired That the attorney's direction to pay the surplus to William, was thus rendered nugatory; and the administrator claimed it as a part of Joseph's assets. William Leo Wolf put in an answer, alleging the validity of the direction given by Louis, and insisting that the complainant, on receiving the securities, was bound by his agreement with Louis, to pay the surplus to William. He also insisted that there was no presumption of Joseph's death, prior to the transfer in |