Central Bank of Wisconsin v. St. John

| Wis. | Jun 15, 1863

By the Court,

DixON, C. J.

No ground of objection to the certificates of the notary was specified. If it was that they were not evidence of the contents of the notices served, it was obviated by chap. 248, Laws of 1860, which declares that they shall be 'prima facie evidence.

It was a trial de novo in the circuit court, and the order of the county court was wholly immaterial. It was properly rejected as an item of evidence to be considered by the jury.

It was right to strike out the statement'of the witness Colby as to his understanding of the purpose for which the drafts were drawn. His understanding or inferences ^yere not evidence. The question was as to the facts of the transaction, and it was only to them that the witness was competent to speak. - .

There was no error in permitting the plaintiff to open an'd close the argument to the jury. It is not usual to divide the issues and allow them, to be argued piecemeal. At all events a mistake in this respect is no cause for a new trial, unless injustice is shown to have resulted from it.

Nor was there any error in giving or refusing instructions to the jury. It was lawful for the plaintiff, in addition to the rate of interest prescribed by law, to bargain for and receive the usual current rate of exchange as compensation for collecting the drafts, provided it was not resorted to as a device to avoid the statute against usury. Laws of 1852, chap. 479, sec. 43; Law's of 1858, chap. 98, sec. 1. Prima facie, therefore, the drafts were valid, and the device, if it existed, was a question of fact for the jury. There was nothing for the court to determine as matter of law in relation to the existence of the usury, farther than to instruct the jury, as was very accurately and properly done. If the drafts were usurious, they must have been so from the first; and whether they were or not de- ■ pended upon the intention of the parties at the time they were drawn. If drawn in good faith, to be' paid in Chicago, they were valid, no matter where they were paid; but if the intention then was that they should be paid in Janesville, they were void. The jury believed the witness Rexford, in opposition to Colby, and it is not for us to disturb their verdict.

Whether the notes are negotiable or non-negotiable is an immaterial question. The liability of the defendants is the same in either case. .

Judgment affirmed.