| Vt. | Feb 15, 1877
The opinion of the court was delivered by
These two cases were tried together by the County Court, and present the same questions, and they all arise on the trial of the defendant’s pleas of payment and set-off. It is found by the County Court, that the defendant himself has never paid the plaintiff anything on the notes in suit, either as interest or usury, but that Elliott B. Fuller, for whose accommodation the defendant executed the notes in suit, and who indorsed and passed the same to the plaintiffs, has paid the plaintiffs as interest and bonus on and in respect to the notes in both the actions, over five thousand dollars. So far as Fuller paid the plaintiffs bonus or usury on the notes in suit, the defendant cannot avail himself of the same, either in payment or set-off to the notes in suit. The statute (Gen. Sts. c. 79, s. 4,) gives the right to recover back money paid in excess of lawful interest only to the person paying the same. Hence, the defendant’s, exception to. the County Court’s allowing the plaintiff, who was not a professional lawyer, to testify in regard to the laws of Massachusetts, where the transactions between Fuller and themselves took place, touching the legal rates of interest there, becomes immaterial, as the defendant has not been prejudiced by.it. Neither is it stated what he testified to, nor that the County Court found any facts on his testimony. If the question were material to the proper disposition of the case, we understand that the rule which requires a party to produce the best evidence attainable, applies to proving the laws of a foreign state as well as to the proving of any other fact. This rule requires the production of the statute of such foreign state, properly authenticated, or proved by some person who knows the book
Whatever Fuller paid as interest on the notes in suit, operated to reduce the notes so much as he thus paid. Such' payments enure to the benefit of the defendant as well as to the benefit of Fuller. It is claimed by the plaintiffs that the County Court meant by this language to include only the deductions or discounts which the plaintiffs made when they cashed the notes for Fuller. But as none of the notes have been paid by Fuller-, such deductions or discounts have never been paid to the plaintiffs; and it is not to be presumed that the County Court used the word “ paid,” when stating the facts found by it, in any such unaccustomed meaning. It was therefore error for-the County Court to render judgment for the plaintiffs for the full amount of the notes, regardless of the sums which had been paid by Fuller as interest on the notes. As the facts found by the County Court do not enable this court to ascertain the amount of the interest thus paid which has been included in the judgments, the cases must be remanded, though the trial was by the court.
Judgment in each case reversed, and the causes remanded.