The opinion of the court was delivered by
Brewer, J.:
*2861. separate defences pleading’. *285This was an action in the district court, brought by plaintiff in error against Augustine, on a promissory note signed by him as surety. Plaintiff was the payee of the note. The answer, as it finally stood, contained three *286separate defenses: 1st, usury; 2d, payment; and 3d, an extension of time to the principal, whereby ’ the surety was discharged. Plaintiff claimed that these defenses were inconsistent, and moved the court to require defendant to elect upon which he would stand. This motion the court overruled, and properly so. All three defenses might be true.. The contract might in its inception have been usurious, and to that extent have been modified thereby ^accordance with the laws of the state where the contract was made. Extension of time might also, after the making of the usurious contract, have been given to the principal, whereby the surety would have been discharged from all liability thereon; and after such extension had released the surety, the principal might have paid the note, and thus destroyed all liability on the instrument. As all these defenses might in fact have existed, they were not inconsistent, and the motion was properly overruled.
2 Laws of Srats“estote proved. 3 instructions where there is no pioof. No proof was made as to the laws of the of state of Illinois, the state in which this note was executed. Notwithstanding this omission the court charged the jury as to ^e effect of usury upon the contract, according the laws of that state. This was manifest error. The courts of one state do not take judicial notice of the laws of another. They must be proved as other facts in the case. Counsel for defendant in error does not dispute this, but contends that under the evidence the jury could not have found against the plaintiff on the question of usury, but must have found against her on the question of extension of time to the principal, and that therefore the error is immaterial. We do not think this, is clear. There was no eviden ce upon the plea of payment; but there was evidence tending to show an agreement to pay anc[ a payment of twenty per cent, interest, and a payment of interest at that rate for four-and-a-half years. The court charged the jury that ten per cent, was the extent of legal interest in Illinois, and that a party taking usurious *287interest forfeited three times the amount of such interest, and ■could recover for the remainder of the note only. Upon this the jury might well have found for the defendant. True, this instruction seems to have been qualified by one given subsequently, which told the jury that usurious interest voluntarily paid could not be applied on the principal, but must be applied on “the interest accruing from the time of executing the said note at the rate of ten per cent, per annum.” But the jury may have understood that the extra and usurious interest was to be carried forward and treated as an advance payment of subsequently-accruing legal interest, and, in addition, that the party forfeited three times the amount of such usurious interest. In this case three times the usurious interest upon the basis heretofore indicated would have exhausted the principal. We cannot say therefore that the error was immaterial. Indeed, it seems to us full as likely that the jury found for the defendant upon the question of usury, as upon the question of extension of time. The judgment must therefore be reversed, and the case remanded for' another trial. In reference to the question of extension of time no objection is made to the instructions given, but it is insisted that the testimony fails to show any extension. We will not anticipate what may be shown on a subsequent trial, but would simply remark that, to make the proposed defense good in law, there must appear to have been a distinct agreement, without the consent of the surety, to give to the principal debtor an extension, and a valid consideration therefor, a consideration which must be other than the payment of interest at the rate and in the manner required by the original contract for the use of the money.
Judgment reversed.
All the Justices concurring.