Bazemore v. Wilder , 10 Ala. 773 ( 1846 )

GOLDTHWAITE, J.

1. There is some obscurity in. the charges to the jury, but a brief examination of the facts will enable any one to ascertain the precise bearing the court intended the instructions to have. It appears the money was borrowed from the plaintiff in Georgia, where he resided, and it is evident the laws of that State furnish the rales by which the transactions there had are to be expounded. After the dealings between the parties had continued for some years, a settlement took place in Alabama, when the notes in suit were made, and when also usurious interest was contracted for, and, as we infer from one portion of the charge, carried into the face of the notes, although these on their face are-payable one day after date. With respect to the usurious contract in this State, the defendant was a comptent witness under our statute, but he was not so as to the usurious contract in Georgia. This point was so settled in Wilson v. Walker, 3 Stewart, 211, where the statute was construed as not letting in the defendant to show a usurious contract in another State. After the disclosure of the facts by the witness, it became necessary, and certainly was proper, for the court to exclude from the jury that portion of his testimony which related to the usurious transactions in Georga. We do not understand the court as going beyond this in the exclusion, and to this extent it was warranted by the case just cited.

2. As there was properly speaking no evidence before the jury, of the transaction in Georgia, the court might well have omitted all mention, or- reference to it, but the witness was sworn, and had testified to the jury, therefore it became a matter of some moment for the court in its charge to disconnect the transactions, and in doing this we cannot perceive the least error. The jury was told to ascertain in the first instance, whether any unlawful interest was embodied in the notes sued for, and if there was, to reject it. They were also instructed to allow no interest after the making of the notes. So far as the charge applied to the transaction in this State, there is no error of which the defendant can complain.

3. As the defendant, after the rejection of his testimony of the transactions in Georgia, offered no evidence whatever of the laws of that State with respect to interest, and usury, there was nothing upon which the illegality of the contract there could be predicated, and therefore it was correct to instruct the jury, no diminution could be made on account of usurious interest, taken or reserved there; and although that part of the charge allowing the jury to give the plaintiff lawful interest on the sum borrowed and unpaid up to the time of making the notes, may not be precisely correct, yet the error, if there is any, is against the plaintiff, who was entitled to recover according to the calculations thus made, and acquiesced in by the defendant.

We think there is no error in the record. Judgment affirmed.