36 Barb. 585 | N.Y. Sup. Ct. | 1861
By the Court,
The question was fairly submitted to the jury on the trial of this action, whether the bond and mortgage was sold absolutely to the defendant John J. Earnest, and the note in question, and upon which the action was brought, was received in payment therefor. And the jury was also distinctly advised that if such was the fact, the plaintiff was entitled to recover the balance due on said note, with interest; and the jury was also distinctly charged that if the said note was made for the accommodation of John Earnest, the payee, and to enable him to raise money on it, it was open to the defense of usury. The jury was also advised that if said note was so made for the accommodation of the payee, and was sold to Kingsley for a less amount than upon its face purported to be due thereon, so as to secure to said Kingsley a greater rate than seven per cent for the use of his money, the transaction was usurious and the note void, whether Kingsley knew it at the time he purchased it, or not. In these particulars the issues of fact, upon which the case depends, were properly submitted, and the rules of law applicable thereto correctly stated to the jury ; and the exceptions thereto are not well taken. The questions belonged to the jury, and the exception taken to the refusal of the circuit judge to charge as requested, that the plaintiff was entitled to recover as matter of law the amount of the note, is not well taken. The exception to that portion of the charge in which the circuit judge stated to the jury “ that if they found that the bond and mortgage to John Earnest was turned out to John J. Earnest merely as collateral security, to be available to him only in case John Earnest failed to pay the note, the note was not a valid note in his hands, and if it was transferred to Kingsley upon a usurious consideration, the note was void,” is not well taken.
Three other exceptions were taken to the refusal of the circuit judge to strike out evidence previously given on the trial. I do not see upon what principle such applications were made; nor can I conceive of any ground upon which they could properly have been granted. When evidence has been duly taken, bearing upon the issues, on a trial, without objection, I know of no right on the part of the circuit judge to strike it out, or to exclude it from the consideration of the jury. If it is proper in kind though not in degree, or if objectionable otherwise upon some techninal ground, all right of exception to it is waived by the parties by not objecting in time, and all rightful control over it by the court gone. It is only when evidence is received upon some condition, mistake, or contingency, that the judge can properly direct the jury to disregard it and treat it as not received; but when it has been absolutely given and received, it cannot in any way, in my opinion, be stricken out of the case, or disregarded. Such practice can only prevail where evidence is taken in writing by one officer, as before an examiner in chancery under the former practice, to be used before some other officer or tribunal. If the evidence is objected to when it is offered, and the objection overruled, an exception will then lie; and if such objection has been made in due time, and a proper exception duly taken, it is superfluous, if not disrespectful, to ask the court afterwards to strike out such evidence. One valid exception for an error committed by the judge is sufficient to assert and maintain all of the rights of the parties on
Johnson, Welles and Smith, Justices.]