Opinion
(August Term, 1848.)
1. It is incumbent on a party excepting, when the error alleged consists in rejecting evidence, to show distinctly in it what the evidence was, in order that its relevancy may appear and that it may be seen that a prejudice has arisen to him from the rejection.
2. In like manner, when the alleged error consists in admitting evidence, the exception must set forth the evidence actually given, as it is the only means whereby the court can ascertain whether or not the admission did or might have done the party a harm.
APPEAL from the Superior Court of Law of RUTHERFORD, at Fall Term, 1847, Settle, J., presiding.
Gaither for plaintiff.
Baxter for defendants.
The action is debt on a bond for $704.40, given by the defendants to the plaintiff, dated 12 July, 1843, and payable twelve months after date, with the interest from date. Plea, usury.
On the trial the defendants gave evidence that one Anderson Staton was indebted to the plaintiff upon several justice's judgments, on which executions were in the hands of one Morris, a constable in Rutherford County; and that it was agreed between Staton and the plaintiff that Morris and a son of the plaintiff should go to South Carolina and bring thence into Rutherford a slave and a wagon and team which Staton had there, and that when brought into this State Morris should seize them under the execution and hold them "to secure the said debts until the said Staton would give other security," and that, accordingly, the plaintiff employed Morris and his son for that purpose and paid Morris $10 for his services and also paid the expenses of the trip. The defendants gave further evidence that afterward it was agreed by and between Staton and the plaintiff and the present defendants that, in consideration that the said Staton would executed a bond to the defendants for the same amount had secure the same by a mortgage (432) on certain property, they, the defendants would give their bond to the plaintiff for the debt which Staton owed him upon the judgments and the plaintiff would accept the same and discharge Staton therefrom; all which was accordingly then done, that is to say, on 12 July, 1843; and the bond now sued on is that which was so given by the defendants to the plaintiff, and was made for the sum due to the plaintiff for the principal money and lawful interest thereon mentioned in the judgments, and did not include the costs. The defendants further gave evidence that on 11 July, 1843, Staton gave the plaintiff a note for $20, and the defendants offered the said Staton as a witness to prove that the same was corruptly accepted by the plaintiff as usurious interest for the forbearance of the day of payment. But he was objected to on the part of the plaintiff, on the ground that he was interested in the event of the suit, and was rejected by the court. The said Staton thereupon executed to the defendants a release of all rights and every equity then existing in or that might arise to him from the determination or result of this suit; but the court, nevertheless, rejected him again. The plaintiff then offered in evidence the declaration of the said Staton, made both before and after the execution of the bond declared on, "to show the consideration of the same note for $20." They were objected to by the defendants, but received by the court. The plaintiff had a verdict and judgment, and the defendants appealed.
If the opinions given on the trial were erroneous, yet, as the case is stated in the bill of exceptions it is not in the power of the court to assists the defendant and it is therefore unnecessary and improper to decide the question (433) of evidence. From the nature of a bill of exceptions, as has been frequently declared by this Court, it is incumbent on the party excepting, when the error alleged consists in rejecting evidence, to show distinctly in it what the evidence was, in order that its relevancy may appear, and that it may be seen that a prejudice has arisen to him from the rejection. In like manner, when the alleged error consists in admitting evidence, the exception must set forth the evidence actually given, as it is the only means whereby the Court can ascertain whether or not the admission did or might have done the party a harm; for verdicts and judgments are presumed to be right and according to law and justice, until the contrary be shown; and the bill of exceptions is required to state all the facts necessary to show the error clearly, since the party excepting is presumed to state the case as strongly against the other party and for himself as he can, consistently with the truth. It would be unsafe for a court of error to proceed upon any other principle, for it is improper and, indeed, impossible in practice to set forth in every bill of exception the whole case made at the trial, or to do more than to raise the points made at the trial on which the decisions are complained of. But it is indispensable to state the facts on which those points arose, since, otherwise, it will not appear that the decisions were practically injurious, and for such errors only can judgments be reversed, and not for any upon merely abstract questions, not legally affecting the rights in controversy. In the present case one of the errors assigned is in rejecting a witness who was to prove that a certain note for $20 was given by Staton to the plaintiff on 11 July, 1843, for usurious interest "for the forbearance of the day of payment"; but it is not stated what debt was forborne nor for what period, so as to connect it with the bond sued on in such a manner as to render it void under the statute. (434) It is left to inference merely that the witness would have proved that the plaintiff required or accepted that note as the consideration of his agreement to take the defendants for his debtors instead of the plaintiff, and to defer the payment a year in order to induce them to give their bond for the debt with interest. If that were the truth of the case, it would raise the question whether the defendants, who are not alleged to have been parties to or cognizant of that part of the agreement, could avail themselves of the statute so as to avoid their bond subsequently given to the plaintiff for the sum really due to him and for a sum truly owing from the defendants to Staton, the plaintiff's original debtor. Upon it, perhaps, it might be necessary to hold affirmatively, in order to prevent evasions of this beneficial statute; but we do not propose to give an opinion on it at present, nor have we, indeed, considered it, as it is not necessary to the decision we have to make. For, clearly, in order to affect their bond with usury the defendants must at least establish that the agreement on which the not for $20 was given as the illegal premium for forbearance had reference to the bond they were to give. That they have not done, nor would have done if the witness had been admitted and had sworn to what the exceptions says he was offered to prove, and it cannot be supposed he would have proved more. For it is not competent for this Court, without any direct allegation of the party to that purpose on the trial, to infer that, besides proving "that the note was given for the forbearance of the day of payment" of some debt, the witness would also have proved that the forbearance purchased was prospectively of this debt, by giving twelve months' time to the defendants on their bonds. Such an inference the Court could not, perhaps, draw in any case, but certainly not in this. For here the note for $20 and the bond of the defendants were given, not only by different persons, but on different days; and, secondly there were two distinct agreements for forbearance established upon the defendants' evidence: the one, on the judgments and executions (435) under which the property was to be seized and held in this State until the debtor could give other security in a reasonable time; and the other, on the bond of the defendants afterwards given at twelve months. For which of those forbearances the note was given, it is impossible to tell, as there is nothing to distinguish; and, therefore, it must, or, at least, may be taken to have been the former. If so, then, according to many authorities, we think the plaintiff is entitled to recover; for it is settled that to avoid a security as usurious it must be shown to have been originally so, as if a bond be given for the sum lent and afterwards there be an agreement for illegal interest, the first bond continues good and may be recovered on, thought the agreement for the excessive interest is void, or the lender may incur the penalty if he receive the usurious interest. Then, in this case, the plaintiff was legally entitled to enforce his judgments for every cent appearing to be due on them, as. they were only for the principal and lawful interest and costs actually owing to him; and consequently, a new security, taken only for the sums thus lawfully due on the judgments, could not be infected with usury any more than the judgments themselves, unless, at all events, there was an agreement for an usurious premium for forbearance on the new security, and not merely a prior payment or security of such a premium for past forbearance on the prior valid security. As there was no usury in the judgments, there can be none in a bond given for them and nothing more. Therefore, the evidence rejected could not have maintained the issue on the part of the defendants, and its exclusion deprived them of no advantage, and furnishes no reason for ordering another trial.
For similar reasons, the admission of Staton's declarations, however incompetent, furnished no ground of reversal, because it does not appear what his declarations were, and that (436) they could have had any effect on the jury. It is stated that they were declarations "to show the consideration of the note for $20," but the exception does not set forth what was the consideration thus declared. It is impossible to conjecture, even, what it was said to have been. It may be that it was proved that Staton declared it was given for the forbearance to the defendants. It was incumbent on the defendants to have set out the substance of the alleged declarations themselves, as, without knowing what they were, the Court cannot undertake to say that they did or might mislead the jury.
Therefore, no error to the prejudice of the appellants being perceived in the judgment, it must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Bland v. O'Hagan, 64 N.C. 473; Street v. Bryan, 65 N.C. 622; S. v. Purdy, 67 N.C. 378; Straus v. Beardsley, 79 N.C. 63; Knight v. Killebrew, 86 N.C. 402; S. v. Lanier, 89 N.C. 520; S. v. Barber, ib., 525; Gadsby v. Dyer, 91 N.C. 316; S. v. Pierce, ib., 609; Watts v. Warren, 108 N.C. 517.