Goodwin v. Appleton

The opinion of the Court was afterwards drawn up by

Tenney J.

We are satisfied, that in Massachusetts where the note in suit was given, three days of grace was allowed upon all negotiable paper from the year 1824, when the statute, chap. 130, on that subject was enacted. But it is insisted for the defendant, that there was no competent evidence of this introduced at the trial. In the margin of chap. 33, <§> 5, of the Revised Statutes of that Commonwealth, which was introduced as evidence, the statute of 1824, chap. 130, is referred to, and in the act to repeal the acts, which had been revised, page 828, there is under the year 1824, the repeal of chap. 130, being stated to be “an act to allow grace on bills of exchange and notes according to the custom of merchants.” By the same Revised Statutes the new statutes and the repeal of the old were to take effect simultaneously. We think there was sufficient to authorize the instruction to the jury in this respect.

To establish usury, the oath of the defendant under certain circumstances is allowed. Chap. 69, ■§> 3, Rev. Stat. This statute is a change of the common law, which denies to a party in a suit, the right-to be heard as a witness, and must be construed strictly. It cannot however on the most liberal construction extend beyond that object. If the testimony of the defendant fails to establish the fact, for which it is allowed, it must be disregarded. It could not have been the intention of the Legislature, under a plea of usury to permit facts, coming from a party, tending to prove another issue, to have any influence upon the jury. When by the statute, a party may be introduced for this special purpose, on no principle can his testimony affect the case for another which is totally distinct.

The course taken by the Judge, when the jury returned with their first verdict, was proper. The finding was not such as the issue required ; it not having been received and recorded, it was no verdict, and the jury had a right to alter it. Root v. Sherwood, 6 Johns R. 68. Before a verdict is recorded, the jury may vary from their first offer of their verdict, and the verdict which is recorded, shall stand. The verdict is not regarded as valid and final, until it is pronounced and recorded in open Court. The Court may also of its own accord send the jury back to reconsider their verdict, if it appears to be a mistaken one, and before it is received and recorded. Blackley v. Sheldon, 7 Johns. R. 32.

From the sum returned in the verdict as damages, and the evidence as reported we infer, that the jury did not find the contract declared on affected by any usurious taint. The jury have also passed upon the question, at what time the writ in this case was made, and found that it was not too soon according to the instruction of the Judge on that point, to which there is no exception taken. Courts take notice of the local divisions of the State, as into counties, cities, towns, &c. and of the relative position thereof, but not of the precise boundaries and distances. Greeul. Ev. 8. And they are not bound to take judicial notice of the local situation and distances of the different places in counties from each other. 4 B. & Aid. 243. The writ, which was made in Alfred, was in the hands of an officer of the county of Cumberland in one hour after it could have been a valid writ. Rut what was the distance between the place where the writ was purchased and that where the attachment was made, or the mode adopted to transmit the writ to the officer, does not appear. We do not think that the verdict is so manifestly against evidence on either of these accounts as to justify us in disturbing it.

The amount of the note in suit would depend upon mere calculation upon precise and well known rules. If usury was not proved, the deductions to be made from this amount would be the result of testimony, concerning which there was no controversy. It is evident, that there was an error in computation, in making up the damages, which should be corrected. And the verdict is to be set aside, and the action to stand for trial, unless the plaintiff's shall cause a remittitur of $633,69, to be entered of record, which his counsel have offered to do; in which case, exceptions and motion overruled.