By the Court,
E. Darwin Smith, J.
In the case of Huntington v. Conkey, (ante, p. 218,) we have decided in a case like this, that when the action is upon a promissory note and the plaintiff’s right of action is admitted upon the record, and the issue to be tried arises purely upon affirmative matter of defense set up in the defendant’s answer, the onus probandi is upon the defendant, and that he has the right to begin, on the trial. The ruling in that case, at the circuit, was the same as in this, that the plaintiff was entitled to begin, but the result was different on the trial. In that case the plaintiff had a verdict, and in this the verdict was in favor of the defendants. The error in that case was therefore available to the defendant. In this case it is not, for, being in the plaintiff’s favor, it obviously can be no ground to him of complaint or objection. But the counsel for the plaintiff" claims that the circuit judge erred in holding that the plaintiff’s counsel in opening the case to the jury had not the right to state the facts he expected to prove in reply to the defense set up in the answer. If this were otherwise error, the objection necessarily falls with the decision of the question that the plaintiff was not entitled to open to the jury, and that it was error to allow him to begin, But if the plaintiff had the right to begin, I think no error was committed, at least none ordinarily reviewable. The object of an opening is to state, briefly, the nature of the action, the substance of the jileadings, the points in issue, the facts and circumstances of the case, and the substance of the evidence to be adduced in its support. And the counsel for the plaintiff, in opening, may also state the nature of the defense) if it appears upon the record. Further than this, under our practice I think the plaintiff’s counsel ought not to go. Under the English practice it is said by Chitty, (3 Chit. Gen. Prac. 880,) “ that the opening counsel may [234]*234state, by way of anticipation, the expected defense, with a statement of the grounds on which it is futile, either in law or justice, and the reason why it ought to fail.” And Arch-bold says, (1 Arch. Prac. 191,) also, that “he may state the evidence by which he can disprove it.” This practice of anticipating the defense grows out of a peculiarity in the English mode of trial, that does not prevail with us. According to this practice the plaintiff may, and in some cases has been required to give his whole evidence to meet the anticipated defense before he closed. He must therefore, in such case, necessarily open fully in respect to such defense, that his testimony may be the better understood ; and he is not at liberty to reply, unless the defendant gives evidence. (3 Chit. Gen. Prac. 906, and 909. 3 Car. & Payne, 75.) The defendant may make such defense as he can, on cross-examination of the plaintiff’s witnesses, and then sum up fully and preclude the plaintiff from a reply. (Id.) In an action for libel, for instance, the plaintiff may give all his evidence to defeat the justification, before he rests; (Brown v. Murray, Ryan & Moody, 254;) and in such case it would be necessary to open in respect to the justification. It is in reference to this practice, upon trials in England, that Judge Nelson, in Morris v. Wadsworth, (17 Wend. 118,) says, “ This or some other reason induced Lord Ellenborough, at the circuit, to go to the unreasonable length of requiring counsel for the plaintiff to include in his opening the facts in reply to any distinct answer to the action which appeared on the record by way of plea or notice, without waiting to see whether such defenses could be proved or not.” (And see Lacus v. Higgins, 3 Starkie, 178; and 9 Car. & Payne, 362; 38 Eng. Com. Law. 115.) Our rule is much more rational and practical. We do not require, and I think should not allow an opening in respect to the defense, except in an incidental way, by a brief statement of its general character ; for it is obviously better and most judicious, and many times will be a saving of much time by waiting, as [235]*235Judge Nelson says, “ to see whether the anticipated defense will be really set up, or attempted to be proved.” And for the same reason the English practice of commenting fully upon the plaintiff’s evidence by the opening counsel for the defense, does not prevail with us. There is no reason for it under our mode of trial. But in any point of view, the manner and general character of the opening by the plaintiff’s and defendant’s counsel must be to a great extent under the control and within the discretion of the judge at nisi prius, and with the exercise of that discretion I cannot think a court of review ought to interfere, except a case were presented of abuse or arbitrariness, such as I think will very rarely occur. In such a case, undoubtedly, as Judge Nelson says in the case of Morris v. Wadsworth, (supra,) “ when the rights of the parties by reason thereof have suffered, the court of review would undoubtedly interfere.” Under our practice, unlike that in England, after the whole testimony has been given, the counsel for both parties have the opportunity and the right fully to discuss it, and comment upon it to the jury, and I think, therefore, that each party should be confined to a legitimate and proper opening of his own case; the plaintiff’s counsel to a statement of his cause of action in the manner above stated, and the defendant’s counsel to a statement of his answer to the plaintiff’s case and the evidence he proposes to give to sustain it; and in such opening the defendant should not comment in the way of summing up, after the English manner, upon the plaintiff’s evidence, any further than is essential to a proper understanding by the jury of the defendant’s evidence. (Goss v. True, 21 Verm. R. 439. Bedell v. Powell, 13 Barb. 184.)
In this case, I think the discretion of the judge was properly exercised. But certainly the plaintiff could not be injured by the ruling, for he had the general right given him, and he exercised it, of making the last address to the jury upon the whole case.
The question put to the defendant Chamberlain, “ Please [236]*236state to the jury whether these notes belonged to one or different transactions,” I do not think was objectionable. It asks him to state the facts. It did not call for an answer in the affirmative or negative, nor did it ask, as urged, for the opinion of the witness. But if the question were objectionable in form, the evidence given in response to it was entirely proper. And the question put to the witness Williams, “ What was the $4000 note given for,” I think, also, was entirely proper.. It asked him for a fact—what was the consideration of the note. It was his own note, and he must know, and was entitled to state what was its' actual consideration. This, I think, he might state, as he did, without going into the details of the transaction, and leave the defendants on cross-examination to inquire about the particular facts connected with the giving of the note.
The power of attorney from the defendants to the witness Stone, I think was properly received, as was the copy, of the plaintiff’s teller, Kelley. The exceptions on these points were not indeed pressed, upon the argument.
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By the Court,
E. Darwin Smith, J.
In the case of Huntington v. Conkey, (ante, p. 218,) we have decided in a case like this, that when the action is upon a promissory note and the plaintiff’s right of action is admitted upon the record, and the issue to be tried arises purely upon affirmative matter of defense set up in the defendant’s answer, the onus probandi is upon the defendant, and that he has the right to begin, on the trial. The ruling in that case, at the circuit, was the same as in this, that the plaintiff was entitled to begin, but the result was different on the trial. In that case the plaintiff had a verdict, and in this the verdict was in favor of the defendants. The error in that case was therefore available to the defendant. In this case it is not, for, being in the plaintiff’s favor, it obviously can be no ground to him of complaint or objection. But the counsel for the plaintiff" claims that the circuit judge erred in holding that the plaintiff’s counsel in opening the case to the jury had not the right to state the facts he expected to prove in reply to the defense set up in the answer. If this were otherwise error, the objection necessarily falls with the decision of the question that the plaintiff was not entitled to open to the jury, and that it was error to allow him to begin, But if the plaintiff had the right to begin, I think no error was committed, at least none ordinarily reviewable. The object of an opening is to state, briefly, the nature of the action, the substance of the jileadings, the points in issue, the facts and circumstances of the case, and the substance of the evidence to be adduced in its support. And the counsel for the plaintiff, in opening, may also state the nature of the defense) if it appears upon the record. Further than this, under our practice I think the plaintiff’s counsel ought not to go. Under the English practice it is said by Chitty, (3 Chit. Gen. Prac. 880,) “ that the opening counsel may [234]*234state, by way of anticipation, the expected defense, with a statement of the grounds on which it is futile, either in law or justice, and the reason why it ought to fail.” And Arch-bold says, (1 Arch. Prac. 191,) also, that “he may state the evidence by which he can disprove it.” This practice of anticipating the defense grows out of a peculiarity in the English mode of trial, that does not prevail with us. According to this practice the plaintiff may, and in some cases has been required to give his whole evidence to meet the anticipated defense before he closed. He must therefore, in such case, necessarily open fully in respect to such defense, that his testimony may be the better understood ; and he is not at liberty to reply, unless the defendant gives evidence. (3 Chit. Gen. Prac. 906, and 909. 3 Car. & Payne, 75.) The defendant may make such defense as he can, on cross-examination of the plaintiff’s witnesses, and then sum up fully and preclude the plaintiff from a reply. (Id.) In an action for libel, for instance, the plaintiff may give all his evidence to defeat the justification, before he rests; (Brown v. Murray, Ryan & Moody, 254;) and in such case it would be necessary to open in respect to the justification. It is in reference to this practice, upon trials in England, that Judge Nelson, in Morris v. Wadsworth, (17 Wend. 118,) says, “ This or some other reason induced Lord Ellenborough, at the circuit, to go to the unreasonable length of requiring counsel for the plaintiff to include in his opening the facts in reply to any distinct answer to the action which appeared on the record by way of plea or notice, without waiting to see whether such defenses could be proved or not.” (And see Lacus v. Higgins, 3 Starkie, 178; and 9 Car. & Payne, 362; 38 Eng. Com. Law. 115.) Our rule is much more rational and practical. We do not require, and I think should not allow an opening in respect to the defense, except in an incidental way, by a brief statement of its general character ; for it is obviously better and most judicious, and many times will be a saving of much time by waiting, as [235]*235Judge Nelson says, “ to see whether the anticipated defense will be really set up, or attempted to be proved.” And for the same reason the English practice of commenting fully upon the plaintiff’s evidence by the opening counsel for the defense, does not prevail with us. There is no reason for it under our mode of trial. But in any point of view, the manner and general character of the opening by the plaintiff’s and defendant’s counsel must be to a great extent under the control and within the discretion of the judge at nisi prius, and with the exercise of that discretion I cannot think a court of review ought to interfere, except a case were presented of abuse or arbitrariness, such as I think will very rarely occur. In such a case, undoubtedly, as Judge Nelson says in the case of Morris v. Wadsworth, (supra,) “ when the rights of the parties by reason thereof have suffered, the court of review would undoubtedly interfere.” Under our practice, unlike that in England, after the whole testimony has been given, the counsel for both parties have the opportunity and the right fully to discuss it, and comment upon it to the jury, and I think, therefore, that each party should be confined to a legitimate and proper opening of his own case; the plaintiff’s counsel to a statement of his cause of action in the manner above stated, and the defendant’s counsel to a statement of his answer to the plaintiff’s case and the evidence he proposes to give to sustain it; and in such opening the defendant should not comment in the way of summing up, after the English manner, upon the plaintiff’s evidence, any further than is essential to a proper understanding by the jury of the defendant’s evidence. (Goss v. True, 21 Verm. R. 439. Bedell v. Powell, 13 Barb. 184.)
In this case, I think the discretion of the judge was properly exercised. But certainly the plaintiff could not be injured by the ruling, for he had the general right given him, and he exercised it, of making the last address to the jury upon the whole case.
The question put to the defendant Chamberlain, “ Please [236]*236state to the jury whether these notes belonged to one or different transactions,” I do not think was objectionable. It asks him to state the facts. It did not call for an answer in the affirmative or negative, nor did it ask, as urged, for the opinion of the witness. But if the question were objectionable in form, the evidence given in response to it was entirely proper. And the question put to the witness Williams, “ What was the $4000 note given for,” I think, also, was entirely proper.. It asked him for a fact—what was the consideration of the note. It was his own note, and he must know, and was entitled to state what was its' actual consideration. This, I think, he might state, as he did, without going into the details of the transaction, and leave the defendants on cross-examination to inquire about the particular facts connected with the giving of the note.
The power of attorney from the defendants to the witness Stone, I think was properly received, as was the copy, of the plaintiff’s teller, Kelley. The exceptions on these points were not indeed pressed, upon the argument.
The next exception relates to the refusal of the judge to take the case from the jury, at the close of the defendant’s evidence. The point presented to the court, at the circuit, and to which this exception relates, was there presented as á question of evidence and variance. It was claimed that the $4000 note appeared by the answer to have been given for a prétended interest which had ceased to exist, but was in fact given for a loan of money ; whereas the- testimony of the defendant showed that the right in question had not ceased to exist, but was valid and subsisting when the note was given. On the question whether the evidence made out a case to go to the jury independently of the form of the answer, I think the decision right. There was evidence given at that stage of the trial which I think made it the duty of the judge to submit the question to the jury whether the $4000 note was not given in fact as a bonus for the loan and forbearance of the $27,000, notwithstanding the faim of the transaction was [237]*237that of a sale of an interest in the lands in Cleveland. But such proof, it seems to me quite clear, did not establish either of the answers in the case; and if the point had been made, and the defendants’ counsel had been called upon to designate which answer they deemed proved, they could have been constrained to admit that there was no single 'answer upon the record to which the proof could be applied, and the motion of the defendants’ counsel should have prevailed. But it is quite apparent, I think, that the case was tried upon the facts set up in the different answers, and upon the assumption that the defendants might prove a defense of usury under the answers, irrespective of the form of the pleadings. They are in the form of, and are numbered as, 14 separate answers. If the question had been raised upon demurrer, not one of these answers, as separate answers, could have been sustained. There is not in the whole series one complete single answer to the complaint. Considered as special pleas setting up usury, not one of them would have been held good, under the old system of pleading ; and every answer should be as full and complete as a special plea was required to be. It was a fundamental rule of special pleading that each plea must contain a sufficient answer in law to the whole grava, men of the cause of action, so far as it professed to answer the declaration. (Gould’s Plead. 358, § 98. 1 Chit. Plead. 523.) And each plea, when there were several, must stand or fall by itself. (Saund. Plead. § 278.) And one could not help out another, (2 Mass. Rep. 542; 1 Chit. 563,) except by an appropriate reference thereto. Not one of these 14 answers will stand the test of these rules, and not one of them makes out a case of usury, by itself, if they are to be regarded as several answers. But these 14 answers, though commencing as separate answers and numbered as such, are in fact but parts of one connected transaction, and each, with some repetition and slight variation, states a distinct part of such transaction. Taking them thus, and tacking them together, they make out or allege two cases or defenses of usury. I [238]*238think they must have heen treated hy the counsel, and by the court, at the circuit, as though they in effect comprised one entire answer. As they were so treated at the circuit, and have heen on the argument here so treated, or rather no point made in respect to their sufficiency in point of form, or their character as- separate answers, I think it would he hardly proper, after the trial and verdict, to treat them otherwise. If the proper objection had been made at the circuit, the answer might have heen amended there, or the case might have gone over the circuit upon terms, with leave to the defendants to put their answer in proper form. Ho surprise, I think, could have heen alleged against their amendment on the spot, as all the substantial allegations of usury are spread upon the face of the pleadings. It seems to he the policy of the law, and the practice now at the circuit, to try causes upon their real merits, disregarding all mere immaterial questions of form, and after a fair trial upon the merits to conform the pleadings to the case made in the evidence, when no injustice will he done, and all the facts essential to the full and fair determination of the lights of the parties were in fact put in issue hy the pleadings. (Corning v. Corning, 2 Seld. 97. Hall v. Gould, 3 Kern. 127. 28 Barb. 441, 602. Code, §§ 170, 171, 173.) The answers, to and including the 7th, set up that part of the transaction between the parties which took place on the 3d of April, 1852, and allege usury in the loan of ¡$15,000 then made. This part of the defense was unsupported by the evidence, and the circuit judge so held, in the submission of the case to the jury. The 8th, 9th, 10th, 11th, 12th, 13th and 14th answers allege the usury to consist in the giving and taking the $4000 note on the 26th of June, 1854, for the forbearance of the said $15,000, and á further loan then made of $12,000. In the 8th answer it is alleged that after the plaintiff had declined to take an interest in the purchase of the Cleveland property, he made this further loan of $12,000, and extended the time for the payment of the $15,000 for the $4000 note, over and above [239]*239legal interest. The 10th answer distinctly avers that this $4000 note was given to the plaintiff to secure the payment to him of that sum for the use of the said $27,000 so loaned and advanced, and for no other purpose or consideration; and in the 12th-answer it is also averred that it was agreed between the parties that the $4000 note should be given to the plaintiff for his interest in the contract of purchase of the said real estate, but' that at that time the plaintiff had no interest in the purchase whatever, and that he had declined to take any interest therein as offered and proposed to him ; that the said agreement to have the $4000 note regarded as given for the interest of the plaintiff in such purchase, was colorable merely, and intended as a device to cover the said usurious agreement. The evidence of the defendants Chamberlain and Williams certainly tended to prove these allegations, and in the aspect in which the question was presented and considered at the circuit, I think the circuit judge would baldly have been justified in overruling the defense and taking the case from the jury.
The remaining question relates to the charge to the jury, or the exception to the charge. The point, as made by the counsel for the plaintiff, is that the judge erred in'submitting to' the jury.the question whether at the time of the transaction in June the plaintiff had already made up his mind to take that interest, and the defendants understood this, and instead of the transaction being a real one of bargain and sale, that ceremony was resorted to by the parties merely as a cover for a usurious loan, and as a pretext to enable the plaintiff to get more than legal interest for .the use of his money, and in saying to them that then the transaction would be usurious. It seems to me that the charge upon this point was fully warranted by the evidence. Chamberlain testified that at the interview when the $12,000 was loaned, “ the plaintiff declined to take an interest, or he did not take it. It was spoken of then, and I heard in some way that he would not take it.” If the $4000 note was in fact given for [240]*240the plaintiff's interest, or option to take an interest, in the purchase of the Cleveland property, there could he no usury in the transaction, and the judge expressly so charged. But it was a question of fact for the jury, what was the real transaction ; whether it was a case of bargain and sale of this interest, or that process or form was used as a mere pretense or cover for usury. This fact was to be determined by the jury, from the whole transaction—from the acts and obvious understanding and meaning of the parties, as well as from their language. Usurious transactions are mostly veiled under some guise or cover—some apparently fair contract or arrangement. It is the province and duty of a jury, in such cases, to look behind the veil, at the real nature of the transaction, and to ascertain the true intent and meaning of the parties. This they may do from what is manifestly to be implied from what is said and done, as well as from what is actually spoken. It doubtless would not be sufficient nor proper for the jury to imagine what were the secret purposes, in his own mind,' of the plaintiff, without any communication of such purposes to the defendants. But the charge instructs the jury that “if Mr. Ayrault had already made up his mind not to take 'an interest, and that Chamberlain and Williams understood this,” and instead of the transaction being a real one of bargain and sale, that ceremony was resorted to by the parties as a cover, then that it was usury. This instruction is explicit. It does not leave the jury to impute usury upon mere suspicion in respect to secret resolves or purposes of the plaintiff confined to his own breast, but it requires that that purpose be understood by the opposite parties, and the form of a sale was resorted to and made as a mere pretext or cover by the parties. This necessarily includes all the parties to the transaction. Williams swore expressly that “the consideration of the $4000 was the loan of the $27,000 extra, .and there never was any other or different consideration for that note.” Chamberlain relates the transaction, and states jfchat he figured up the interest of the money loaned. That [241]*241when the proposition to sell their interest in the purchase was made, “he then saw what was up, and thought more than he said,” &c. The whole transaction appropriately belonged to the jury, and I cannot think that there was any substantial error in the charge in this particular, or in the matter referred to in the next and last exception. It was a case purely of fact. It was for the jury to say what the real nature and character of the transaction actually .was, as disclosed in the evidence.
[Monroe General Term,
December 3, 1860.
Smith, Johnson and Knox, Justices,]
Upon the whole case, I can see no substantial error that would make it proper for us to grant a new trial.
Hew trial denied.