Burt v. Gwinn

4 H. & J. 507

• Court: Court of Appeals of Maryland
• Decided: June 15, 1819
• Status: Published

Opinion

Earle, J.

delivered the opinion of the cotiit. In this case there are several bills of exceptions in the record, the first of which, taken on the part of the plaintiff below, (being the second in the record,) contains all the material facts in the cause, and presents for consideration the principal subjects of controversy between the parties.

In this bill of exceptions the court below was called on to direct the jury, that if they believed the note was drawn by Gwinn & Co, in the manner they offered in evidence, am! that John Wallis had transferred the same to Andrew Jinn for value, before it became, due, and that Andrew Jhirt, at the time of the endorsement to him, had no notice of any negotiation between Charles Gwinn & Co. and Jushua Dorsey, or between Joshua Dorsey and John Walla, respecting the said note, that then the plaintiff, Andrew Shirt, was entitled to recover. This direction the judge very properly refused to give, having a just regard, as we presume, to (he rights of the jury, upon whose province he must have encroached if he had gratified the prayer of the plaintiff. A variety of strongly contested facts were laid before the jury, and on the consideration of them they had to decide whether the note had been tainted with usury ire its inception or negotiation, and it was not for the court to advise them as to the conclusions they weie to draw the one way or the other. It is sometimes the duty of the court to decide the law upon facts, but it is after they are •well ascertained by admissions or otherwise, and not while they are unsettled between the parties. The court below expressed an opinion, however, to the jury, in which we entirely coincide, as it is understood by us. We suppose the judge only intended to say, that if the note was drawn by Charles Gwinn & Co. to borrow money at illegal interest, and the holder did accordingly obtain money thereby on a usurious consideiation, the note was void, and the plaintiff could not, under any circumstances, recover on itj and on the other hand, that if the note was bona fide in its origin, the plaintiff might recover on it, provided he had no knowledge of its being subsequently passed upon a usurious consideration. Some broad expressions used in the first part of the opinion seem to militate against this construction of it, but when we think that the whole is considered together, and particular attention is bestowed on the latter part of it, the meaning we have ascribed to the judge is obvious. Thus understood, the opinion does not suggest the question discussed on the argument, “whether a note drawn to borrow money is usurious and void in its inception, because money has been obtained on it by the holder on a usurious consideration, although the drawer, at the making of the notej had no knowledge such a use was to be snade of it;” and the court do not mean to express any opinion on this point.

We are of opinion, that the court below was correct in refusing to direct the jury according to the plaintiff’s prayers set forth in the second, third and fourth bills of exceptions, (being the third, fourth and Afth in the record.) The prayer in the fourths as general as the prayer in the first bill of exceptions, and the second and third exceptions differ from them only in this, that the judge is required to direct the jury as to the question of usury on detached parts of the transaction, and not on the whole of it.

From the opinion of the judge expressed in the fifth bill of exceptions, (being the sixth in the record,) vve dissent; and as to this point the judgment must be reversed. How-ver the declarations of a merchant’s clerk to a notary public in the course of business may be used for some purposes, they cannot be used in evidence to establish a fact not immediately connected with the solemnity of protesting. The defendant wished to prove that John Wallis was the holder of the note, and he proposed to do it by the admissions of John Wallis. This it was competent for him to do by correct and legal testimony, in which light we cannot consider the declaration of his clerk, not made on oath. Such declarations were yet more improper to discredit John Wallis, who was sworn as a witness in the cause. We must then view those declarations as inadmissible proof, and think the judge erred in suffering them to be laid before the jury.

We concur with the court below in the opinion delivered in the siirfAbill of exceptions, (being the seventh in the record.) If all the expressions of the witness, Joshua Dorsey, objected to by the plaintiff, had been expunged from his testimony as detailed in the first bill of exceptions, what remained would have been wholly unintelligible, anil if those most particularly objectionable, to wit. “as he Dorsey understood and presumed,” had been erased, the witness would have been made to speak a language he never intended to utter. Remove those expressions and the testimony would read thus, “that the sum of SI50, retained by the said Wallis, was about the sum intended to be charged for discount on the note,” which evidence .Dorsey never meant to deliver. Those last expressions ofilie witness taken alone, and unconnected with others used by him, import his opinion, and are in themselves inadmissible evidence; but the court cannot perceive how the judge could have separated them from the other parts of the testimony, without doing more mischief, than the retaining of them would have done.

JUDGMENT REVERSED, AXE PROCEDENDO AWARDED.