President of the Quinsigamond Bank v. Hobbs

77 Mass. 250

Opinion

Metcalf, J.

Footnotes

•

*

1. The defendant’s answer alleges that the note in suit is void, and that the plaintiffs have no right of action thereon, by reason of the taking of unlawful interest by them, upon their discounting it for the maker. And this is the single ground on which it has been argued that the note is void. Such being the only defence now relied on, we are of opinion that the judge rightly refused to admit evidence that the plaintiffs discounted the note at an unlawful rate of interest; because such evidence, if admitted and believed by the jury, would not have shown that the note was void.

It is contended for the defendant that this note is made void by § 59 of c. 36 of the Rev. Sts., which enacts that “ no bank in this state shall take any greater rate of interest or discount on any note, draft or security, than at the rate of six per cent, a year; but such interest or discount may be calculated and taken according to the established rules of banking; provided, that in discounting drafts or bills of exchange the bank may, in addition to the said interest, charge the then existing rate of exchange between the place where such draft may be discounted and the place where it is payable.” By the next section of the same chapter (§ 60) it is declared that for every offence against the provisions in § 59, the bank so offending shall forfeit to the use of the Commonwealth the sum of five hundred dollars. And if these were the only statute provisions concerning unlawful interest, they might sustain this defence, although they do not expressly make void a note, draft or security, when discounted at a greater rate of interest than therein allowed. Wheeler v. Russell, 17 Mass. 258. Allen v. Hawks, 13 Pick. 82. But in construing this § 59, and deciding upon its effect, we must take it in connection with other statute provisions in pan materia. Church v. Crocker, 3 Mass. 21. Goddard v. Boston, 20 Pick. 410. By § 58 in this same chapter 36 of the Rev. Sts., “ no bank shall directly or indirectly make any loan, or grant any discount, unless the amount of the loan, or the proceeds of the discount, shall be payable by the bank, on demand, in specie or in the bills of the bank; and every loan or discount, made contrary to the provisions of this section, shall be .o far void that the bank shall not be enabled to recover the amount thereof from the borrower or from any other person ; and every bank, offending against the provisions of this section, shall forfeit the sum of five hundred dollars.” For the violation of the provisions of each of these sections, the same penalty is imposed ; but the forbidden contract is declared void only in the first. And we cannot doubt that the omission, in § 59, to declare that the contract therein forbidden should be void, was an intentional omission, designed to leave in force, against banks, the provisions in the next preceding chapter (c. 35) of the Rev. Sts. concerning the “ interest of money.” By § 2 of that chapter, it is declared that no contract or assurance for the payment of money, with interest at a greater rate than six per cent, for a year, shall be thereby rendered void, but that when greater interest is reserved, taken or received, threefold the amount of that whole interest shall be forfeited. And we cannot suppose that the legislature intended, by § 59 of c. 36, to repeal this provision, so far as it applied to banks, and to revive against them the old law by which usurious contracts were void.

2. The defendant was rightly refused permission to inquire of Stone how much money he had in possession when he departed from Worcester. Stone had testified that he left Worcester for fear of arrest in civil suits, and that he returned when he heard that he had been accused of forgery. The avowed purpose of the question, when proposed to be put, was to show that when he left Worcester he had ample means of procuring bail in any civil suits then likely to be instituted against him; and the argument now is, that he therefore fled to avoid criminal prosecution, and that the credibility of his testimony was affected by reason of its being given under strong apprehension of such prosecution. But this is an inference which a jury could not justly deduce from- the premises. Besides; they already knew Stone’s position as a witness, and that he was testifying in a case in which he was accused of forgery; and they therefore had full means of judging what effect this should have on his credibility. His answer to the proposed question would therefore have been immaterial.

3. The witnesses, whom the defendant called to impeach Stone, having testified that his reputation for truth was good until the time of his failure, and bad since, we think both parts of their testimony were properly submitted to the consideration of the jury. See Willard v. Goodenough, 30 Verm. 397.

4. In this commonwealth, the question, what is the reputation of a witness for integrity, cannot be put for the purpose of discrediting him, but only the question what is his general reputation for truth. 1 Greenl. Ev. § 461, note.

5. The authorities show that Southgate’s testimony, that in his opinion all the words in the note in suit were written at the same time, was within the legal province of an expert. Goodtitle v. Braham, 4 T. R. 494. 2 Taylor on Ev. § 1274. Commonwealth v. Webster, 5 Cush. 301. In Cooper v. Bockett, 4 Moore P. C. 433, the judicial committee and lords of the privy council called before them a witness, who was an expert in writings, for the purpose of obtaining his opinion whether a line, that surrounded the names of the witnesses to a will, was made before or after their signature.

6. The question whether Southgate was shown to be competent to testify as an expert depended on the facts and circumstances that appeared on his preliminary examination, which are not reported in the bill of exceptions. If the judge had seen fit to report them, and bring before the whole court the question of the legal sufficiency of the evidence upon which his ruling was made, it might undoubtedly have been revised. Though dicta are to be found, which assert the right of a party against whom such a ruling is made, to bring it to the full court for revision, we believe that no exception has been sustained by this court in any case in which the judge who made the ruling had not reported all the evidence. Foster v. Mackay, 7 Met. 531. Baxter v. Abbott, 7 Gray, 78. Hatch v. Carpenter, 9 Gray, 271. And upon full consideration, the court are of opinion that, upon the admissibility of a witness as an expert — as upon the analogous question of the incompetency of a witness, on the ground of interest, before the practice act—when all the evidence is not reported, and it does not appear to the court that the decision as to the competency of the witness turned on a question of law, we cannot revise the action taken by the judge when all the facts were before him. See Dole v. Thurlow, 12 Met. 159; Odiorne v. Bacon, 6 Cush. 190, 191; Gorton v. Hadsell, 9 Cush. 511; Chase v. Breed, 5 Gray, 443, 444.

Exceptions overruled.

Thomas, J. did not sit in this case.