Belden and another, administrators of Belden, against Lamb

Belden and another, administrators of Belden, against Lamb. Evidence, to be admissible, need not afford full proof of the fact which it is offered to establish; but it is sufficient if it conduces, in any reasonable degree, to prove that fact. Therefore, where the plaintiff, in an action against the defendant as indorser of a promissory note, for the purpose of showing that the defendant had received notice of non-payment in due time, offered testimony to prove, that he had admitted in conversation that he had received notice of non-payment, but he, at the same time, refused to pay the note, because the notice was misdirected ; it was held, that this testimony was not to be withheld from the consideration of the jury, because it fell short of proving notice in due time; as the deficiency might be supplied by other evidence, direct or presumptive. When certain facts conducing to prove diligence are either proved or conceded, the question whether they amount to due or legal diligence, is one for the decision of the court alone; but when the question is, what are the facts, and what was done by the holder in making enquiries, the jury are to decide it. Where it was proved, that an indorsed note being left at one of the banks in the city of Hartford for collection, the holder and the cashier of that bank were ignorant of the indorser’s place of residence; that the holder went out of the bank for the purpose of ascertaining it, and soon afterwards returned, and directed the cashier to write the word “ Chickopee” upon the note, under the indorser’s name, which he accordingly did; that when the note became due, notice of non-payment was sent by mail to the indorser, directed to him at Chickopee, which was not his place of residence, but about seven miles distant therefrom; that his place of residence was known to sundry citizens of Hartford; and that within a year previous to this time, six or seven notices of protest had been sent to him by mail, properly directed, from the other banks in Hartford; the court, after informing the jury what in point of law would be due diligence, underthe circumstances of the case, submitted the evidence to them, and left it to them to decide, whether the holder had used such diligence, thus treating it as a mixed question of law and fact; it was held, that this course was correct. [Two judges dissenting.] If a promissory note be good at its inception, and effective in the hands of the payee against the maker, it may be sold by the holder, like any chattel or other chose in action, for such price or rate of discount as the parties may stipulate for, without the imputation of usury. But if the note is made only to raise money upon, and is not to become effective until it is negotiated, the discounting of it at a greater rate than the lawful interest, is treated as a loan by the indorsee, and will be considered as prima facie usurious. The distinction therefore is, with reference to the question of usury, between business and accommodation paper. Though the purchaser of a promissory note may not be entitled to recover from the party from whom he received it a greater sum than the consideration paid; yet in an action against a third person, who indorsed the note as the surety of the maker, the rule of damages is the same as against the maker, viz. the face of the note and interest. This was an action against the defendant, as the indorser - of a promissory note, made by William II, Lord and Joseph H. Poiwine, for 771 dollars, 96 cents, dated October 25th, 1838, and payable to the order of C. & H. Chapin, at the Hartford Bank, thirteen months after the date thereof, and indorsed successively by C. & H. Chapin and the defendant. The cause was tried at Hartford, September term, 1845^ before Hinman J. The making of the note by Lord & Potwine, and the in-dorsement thereof in blank, first by C. & II. Chapin, and then by the defendant, were admitted. To prove presentment of the note for payment, and notice of non-payment to the defendant, the plaintiffs introduced Francis Parsons Esq.., a notary public, as a witness, who testified, that on the 27th of November 1839, (the 28th being Thanksgiving day,) he presented the note at the Hartford Bank for payment, and it not being paid, he protested it for non-payment, and thereupon, on the same day, wrote and deposited in the post-office in the city of Hartford, a notice of non-payment, in the usual form, to Alonzo Lamb, the defendant, at Chickopee, Mass. The plaintiff also introduced Alonzo S. Beckwith, as a witness, who testified, that ten or fifteen days, — he could not fix the time with certainty, — after the note fell due, he heard a conversation between Thomas Belden and Lamb, in which the latter stated to Belden, that he, the defendant, received a notice of non-payment of the note, some time after it became due, which notice was mis-directed ; and for this reason, he refused to pay the note. This was all the evidence there was as to the defendant’s receiving notice, or as to the time of receiving it. To prove that Belden was ignorant of the defendant’s place of residence, and had used due diligence to ascertain it, the plaintiff introduced William T. Hooker, cashier of the Farmers and Mechanics Bank, who testified, that on the 22nd of November 1839, Belden left the note at the bank for collection ; that the enquiry was then made where Lamb resided; that neither of them then knew ; that Belden then left the bank for the purpose of obtaining information as to Lamb’s residence ; that in a few minutes thereafter, he returned into the bank, where the witness, by Belden’s direction, wrote the word “ Chickopee,” in pencil-mark, upon the back of the note, under Lamb's name, to denote his place of residence, which he then supposed to be Chickopee; and that afterwards, note, by direction of the witness, was sent for collection to the Hartford Bank, where it was payable. The testimony of Hooker was the only evidence of diligence on the part Belden to ascertain Lamb’s place of residence. The defendant objected to the admission of this testimony ; but the court overruled the objection and admitted it. It was proved by the defendant, and not denied by the plaintiffs, that Lamb, at the time the note was so protested, and for many years before and ever since, lived in the town of South-Hadley, in the state of Massachusetts, in which town were two post-offices, one situated at the distance of about three and a half miles from Lamb’s place of residence, and the other at a village in that town, known by the name of South-Hadley Canal, about one half mile from Lamb’s place of residence ; that the post-office at Chickopee, which is in the town of Springfield, was distant from Lamb’s residence about seven miles ; that there were two intervening post-offices, between that at Chickopee and those in South-Hadley ; and that Lamb was accustomed to send to the post-office at South-Hadley Canal, and there receive letters and communications addressed to him by mail; and to deposit such letters and communications as he wished to have transmitted by mail. There was no evidence that he was accustomed to receive or deposit his letters for transmission by mail, at any other post-office ; or that he had, upon any occasion, ever received any letter or communication at the post-office at Chickopee, or addressed to him at that place, except so far as this might be inferred, in respect to said notice of protest, from Beckwith’s testimony. Nor was there any claim on the part of the plaintiffs, but that said notice of protest was mis-directed; nor was there any claim made by them, that the defendant ever received such notice, except what appeared from Beckwith’s testimony. The defendant introduced three or four witnesses, residents of the city of Hartford, who testified, that before and at the time the note was so protested and notice sent, they well knew Lamb’s place of residence, but did not know at what office he received letters ; that he had been accustomed to visit the city of Hartford three or four times a year, and to lodge at one of the public houses, when there; and that between the 1st of January 1839, and the 27th of November of that year, sundry notices of protests of notes, payable at the Hartford, Connecticut River and Exchange banks in the city of Hartford, had been directed and sent by mail to Lamb, at South-Hadley Canal, viz. three from the Hartford Bank, three from the Connecticut River Bank and one from Francis Parsons Esq., who was the attorney of the Hartford Bank, by whom the note in suit was protested. It was also prove-ed on the trial, and not denied by the plaintiffs, that before and at the time the note in question was protested and notice sent, there was a daily mail from the city of Hartford to South-Hadley Canal; and that a letter deposited in the post-office in the city of Hartford, would, in the regular course of mail, arrive at the post-office at South-Hadley Canal, in the afternoon of the following day. The defendant also, on the trial, introduced evidence to prove, that C. II. Chapin, by whom said note was indorsed, held two other notes, made by Lord <f- Potwine, of even date with the note in question, all three of which notes were valid buiness notes, of about an equal amount; that C. «§• H. Chapin applied to Beiden to discount these three notes; that Beiden proposed to discount them, at the rate of two per cent, per month for the time they had respectively to run ; it being understood, that they were to be indorsed over to Bei-den, by G. Sf H. Chapin, in case they should be so discounted ; and that Beiden would make some abatement from such discount, if the defendant would indorse the notes with C. <J* H. Chapin; that very shortly thereafter, C. 4* H. Chapin, and subsequently, the defendant, for their accommodation, indorsed the notes ; that it was finally agreed between Beiden, and C. 4' H. Chapin, that Beiden should discount the notes at a rate of discount not less than one and a half per cent, per month, for the time the notes respectively had to run ; and that Beiden, in conformity with such agreement, actually discounted the notes, at such rate of discount; and that Beiden and the defendant, had paid up in full the two notes other than the one in question, to Beiden. No evidence was introduced by the plaintiffs, nor was there any claim on their part, that there was any consideration for the transfer of the notes to Beiden, or the discount retained by him, than that which appeared from the evidence above stated. Nor was there any evidence that the defendant had ever received said notice of protest so sent by said Parsons, and directed to the defendant, at Chiekopee, or of the time of , receiving it, except from the foregoing testimony of Beckwith. The defendant claimed to the court, that the jury could not, from the testimony of Beckwith, lawfully infer or find, that the notice of protest, so sent and misdirected, was received by the defendant in due time, or in such time as to fix his liability as indorser of the note ; and that the testimony of Beck-with ought not to go to the jury ; and he requested the court not to permit it to go to the jury. The defendant also claimed, that if there was any question as to the sufficiency of the notice of non-payment, it was, under the circumstances of the case, a question of law, for the court, and not for the jury, to decide ; and he requested the court to decide it. The defendant further claimed, that the jury could not, from the testimony of Hooker, lawfully infer or find, that Belden had used due diligence to ascertain the place of the defendant’s residence ; and he requested the court not to suffer this testimony to go to the jury. The defendant also claimed, that whether Belden had used due diligence, under the circumstances of the case, was a question of law appertaining to the court, and not to the jury, to decide ; and that the court, for that reason, would not submit the evidence to the jury. The plaintiffs claimed, that the testimony both of Beckwith and of Hooker ought to go to the jury, and requested the court to submit it to them accordingly. The court decided, that the testimony of Beckwith was admissible, for the purpose of showing that the defendant had received notice, in due time, of the dishonour of the note; but in charging the jury, the court told them, that such evidence was not sufficient by itself to authorize them to find, as a fact, that notice was received by the defendant in due time; and that, as there was no other evidence upon that point, they ought not to find that notice was received by the defendant in due time. As to the testimony of Hooker, the court, after informing the jury what in point of law would be due diligence, under the circumstances of the case, submitted the testimony to them, and left it to them to decide, whether Belden had, or had not, used due diligence to ascertain the defendant’s place of residence. The defendant further claimed, that, if the note was indors—ed by O. H. Chapin, and afterwards by the defendant, for their accommodation, and transferred upon or in pursuance of said contract, that contract, and the consideration upon whichit was made, were usurious ; and that the defendant might avail himself thereof, in this suit, to defeat a recovery; and he requested the court so to instruct the jury. The defendant further claimed, that if the court should be of opinion that the contract was not usurious, still the plaintiffs could not, in this suit, lawfully recover of the defendant any more than the balance of the consideration paid by Belden, for the notes remaining unpaid, and not the full amount of the note in suit; and he requested the court so to charge the jury. The plaintiffs claimed, that if the note was transferred in the manner above stated, it was not done upon an usurious consideration ; and that the plaintiffs were entitled to recover the full amount of the note in suit, including principal and interest ; and they requested the court so to instruct the jury. The court charged the jury, that if the note was transferred to Belden, upon the contract and consideration, and in the manner and under the circumstances, above stated, the contract or consideration upon which the note was so transferred, was not thereby of course usurious; and that, in case the jury should not find, that the transaction was intended as a mere cover for an usurious and corrupt loan of money by Belden; and should find, that the defendant received notice of non-payment in due time to charge him as the indorser of the note; or in case he did not so receive notice, that Belden used due diligence to ascertain the place of the defendant’s residence ; the jury ought to find for the plaintiffs to recover the full amount of the note, without any deduction therefrom. The jury returned a verdict for the plaintiffs, for the full amount of the note ; and the defendant moved for a new trial for a misdirection. Hungerford and Goodman, in support of the motion, contended, 1. That the testimony of Beckwith ought not to have been admitted or submitted to the jury. In the first place, the jury could not from that evidence legally infer, that notice of the dishonour of the note was received in due time by the defendant. Lawson v. Sherwood, 1 Stark, Ca. 314. Braithwaite v. Coleman, 4 Neo. ⅜ Man. (554. (30 E. C. L. 403.) But secondly, It was a question for the court, and not-for the jury to decide. Darbishire v. Parker, 6 East, 3. Scott v. Lifford, 9 East, 347. Sice v. Cunningham, 1 Cow-en, 397. United States Bank v. Hatch, 6 Pet. 250. Holland t. Turner, 10 Conn. R. 308. Tindall & al. v. Brown, 1 Term R. 167. 2 Stark. Ev. 255. Patton v. Wilmot, 1 Har. dp J. 477. Philips v. McCurdy, 1 Har. J. 187. Bateman v. Joseph, 12 East, 433. Beckwith & al. v. Smith, 22 Maine R. 125. Van Hoesenv. Van Alstyne, 3 Wend. 75. Bank of Utica v. Phillips, 3 Wend. 408. Bryden v. Bryden, 11 Johns. R. 187. i?e*d v. Payne, 16 Johns. R. 218. Freeman v. Boynton, 7 Mass. R. 483. Granite Bank v. Ayres, 16 Pick. 392. Bank of North America 'v. Knight, 1 Yeates 147. Patterson Bank v. Butler, 7 Holst. 268. 2. That the testimony of Hooker ought not to have been submitted to the jury; because they could not legally infer therefrom, that Belden had used due diligence to discover the defendant’s place of residence. In support of this position, the following authorities, in addition to those above cited, were referred to. The Mohawk Bank v. Broderick, 13 Wend. 133. Bank of Utica v. Bender, 21 Wend. 643. Rerner v. Downer, 23 Wend. 620. Spencer v. Salina Bank, 3 Hill 520. Lowery & al. v. Scott, 24 Wend. 358. Ransom v. Mack, 2 Hill 588. Bank of Utica v. Davidson, 5 Wend. 587. Cuyler v. Nellis, 4 Wend. 398. Bank of Geneva v. Howlett, 4 Wend. 328. Catskill Bank v. Stall, 15 Wend. 365. Bank of Utica v. De Mott, 13 Jo/ms. jR. 482. Rhett v. Poe, 2 Howard 457. United States Bank v. Parker, 12 Wheat. 559. Thomas v. Rice, 15 Maine R. 263. Warren v. Cushman, Id. 70. Eastern Bank v. Brown, 17 Maine R. 356. Marsh v. Goddard, 20 Maine JR. 29. Johnson v. Lewis, 1 Dana 182. Philips v. C/iase, 6 Jkfeic. 492. 2⅝⅞-er v. Evans, 5 Pin». 541. Haddock v. Murray, 1IV. Hamp. R. 140. Hill v. vfrrpl, 3 Greenl. 333. Barnwell v. Mitchell, 3 Conn. P. 101. Hartford Bank v. Stedman, Id. 439. Huntington v. Harvey, 4 Conn. R. 124. Welton v. Scott, Id. 527. Prentiss v. Donaldson, 5 Conn. R. 175. 3. That the consideration upon which this note was transferred to Belden, was, according to the testimony adduced on the trial, (the truth of which was not controverted,) usuri-ous; and the judge ought so to have charged the jury. Orí on Usury, 25. Massa v. Hauling, 2 Stra. 1243. Richards v. Brown, Cowp. 770. Louie v. Waller, Doug. 736. Pratt v. Willey, 1 Esp. It. 40. Rich v. Topping, Id. 17(5. Daniel v. Cartony, Id. 274. Parr v. Eliason, 3 Esp. R, 210. S. C. 1 East 92. Harrison v. Hannel, 5 Taun. 780. Lowes v. Mazzarredo, 1 Stark. Ca. 385. 388. The King v. Ridge, 4 Price 50. Chapman v. Black, 2 B. ép Aid. 589. v. Wright, 3 B. 4 Ores. 273. (10 E. C. L. 75.) PFt/aíí v. Campbell, 1 A/bo. <f- Mal. 80. (22 E. C. L. 257.) Meagoe v, Simmons, 1 Moo. <f* Alai. 121. (22 E. C. L. 266.) Churchill v. Suter, 4 Mass. R. 162. Knights v. Putnam, 3 Pick. 185. Yankey v. Lockhart, 4 /. /. Marsh. 276. Hackley v. Sprague, 10 FPemd. 114. Campbell v. Read, Mart. ¿p Yerg, 392. Gaither v. Farmers <§• Mechanics Bank, 1 UeL 43. Lloyd v. Reach, 2 Conn. i?. 175. Tuttle v. Clark, 4 Conn, R. 153. 1½?1⅞ of Utica v. Smalley, 2 Cowen 770. New-York Firemen Insurance Company v. Ely, Id. 678. 2⅛«⅞ of [Th'ca v. IFager, id. 712. State Bank of New-Jersey v. Ayers, 2 Halst. 130. Powell v. Waters, 8 Cowen 669. Fan Schaack v. Stafford, 12 1⅞⅞. 565. United States Bank v. Owens, 2 Pet. 537. Thompson v. Thompson, 8 Mass. R. 135. 4. That the court ought, as matter of law, to have instructed the jury, that if they should find the facts as testified by the witness, the transaction was usurious, and the plaintiffs were not entitled to recover. Button v. Downham, Cro. Eliz. 643. Roberts v. Tremayne, Cro. Jac. .507. Doe d. Davidson v. Barnard, 1 I&p. Ii. 11. Pratt v. Willey, Id. 40. Marsh v. Martindale, 3 Ros. <J* Pul. 154. 158. Davis v. Hardacre, 2 Campb. 375. Lowes v. Mazzarredo, 1 Stark. Ca. 385. Aleagoe v. Simmons, 1 Moo. óp MaZ. 121. (22 U. C. U. 266.) See also many of the other cases cited in support of the last point. 5. That if the contract was not usurious, the court ought to have charged the jury, that the plaintiffs were entitled to recover no more than had been paid by Belden, as the consideration of the note, and the interest thereon. Cram v. Hendricks, 7 Wend1. 569. T. C. Perkins and £T. Perkins, contra, contended, 1 That the testimony of Beckwith tended to show that notice was received by the defendant, and in due time: it was therefore admissible. But as the jury were instructed that it was insufficient, the defendant has no ground of complaint. : 2. That there was no question of law regarding the sufficiency of the notice given. It was a simple question of fact whether the notice was duly given. 3. That the testimony oí Hooker showed distinctly, that Belden made use of some diligence to ascertain the defendant’s place of residence ; and it was properly submitted to the jury to determine whether it amounted to due diligence. The question of due diligence, where the facts are not ascertained, as in this case, is a question for the jury to determine, under instructions from the court as to the legal principles applicable to this subject. Bateman v. Joseph, 12 East 433. S. C, at Nisi Prius, 2 Gampb. 461. Remer v. Downer, 23 Wend, 620. 623. Spencer v. The Bank of Salina, 3 Hill 520, Bank of Utica v. Bender, 21 Wend. 643. 4. That if the question on which this part of the case turned, was a question of law, it has been correctly decided ; and a new trial will not be granted. Chitt. Bills, 213. Bank of Utica v. Bender, 21 Wend. 643. Chapman v. Lipscome, 1 Johns. R. 294. Ransom v. Mack, 2 Hill, 587. 592. Baldwin v. Richardson, 1 B.fy Gres. 245. (8 E. C. L. 66.) Bank of Utica v. Philips, 3 Wend. 408. 410, 11. Lowery v. Scott, 24 Wend. 358. 360. Barker v. Clark, 20 Maine R. 156. 5. That the sale of a note, valid in its inception, at a discount of more than the legal interest, is not per se usurious. Kent v. Walton, 7 Wend. 256. Nichols v. Fearing, 7 Pet, 103. 109, 10. Lloyd v. Keach, 2 Conn, R, 175. Tuttle v. Clark, 4 Conn. R. 153. 6. That whatever the rule of damages might be in a suit against G. <f- H. Chapin, who sold the note to the plaintiff, yet as against this defendant, who, by his indorsement, became the surety of the makers, the plaintiff is entitled to recover the same amount as the makers themselves would be liable to. This, unquestionably, would be the face of the note and interest. [MAJORITY — Chukch, J.] Chukch, J. During the progress of the plaintiffs proof, and for the purpose of proving that due notice had been given to the defendant of the dishonour of the note in question, he introduced the testimony of A. -8. Beckwith, who testified, that the defendant, in a conversation which he heard, admitted that he had received notice of the non-payment, but at the same time, declared his refusal to pay the note, because the notice, which had been sent by mail, had been misdirected. The defendant claimed, that from this evidence there could be no legal inference that the notice had been received in due time, and that it should not be permitted to go to the jury at all, but that the court, as a matter of law, should declare that the notice was insufficient. If this testimony conduced, in any reasonable degree, to prove, that notice was received by the defendant in proper time, it was rightfully before the jury, to be considered by them. Evidence, to be receivable, need not afford full proof of the fact for which it is offered ; it is enough if it tends to prove — if it proves a single circumstance from which such fact may be fairly presumed. In the present case ; to show that the notice was received in due time, it was proper to prove, that it had been sent, and also that it had been received in fact by the defendant, leaving only the time to be supplied, by direct proof or reasonable inference. If the defendant only insisted upon the misdirection of the letter containing the notice, as his sole reason for refusing to pay the note, without an intimation that he had not received it in reasonable time, this might afford a ground of presumption, not strong, yet legitimate, that the notice had been duly received, although misdirected, and as soon as he would have received it, if it had been directed to him at a different post-office. We presume that his silence in this respect, was urged against him in argument; and can we say, that counsel had no right to urge it ? This motion does not proceed upon the ground that the verdict was against evidence, upon this point of notice ; but that the court erred in permitting the jury to consider it. Whether there is any evidence upon any material point in a cause, is a question for the court; how much it may prove, if admissible, is for the jury. O'Kelley v. O'Kelley, 8 Metc. 437. 1 GreenL Ev. 59. It seems that no additional proof was offered on this point; and therefore, the court, in the final charge, instructed tire jury, that this evidence of Beckwith was not sufficient to authorize them to find that notice had been received by the de- ■ Cendant in due time. If therefore, as the defendant claimed, the sufficiency of the notice proved by Beckwith’s testimony, was a question of law, the court decided it, as such, in his favour. The same principles, to some extent, may be applied to the testimony of Hooker. The question is one of relevancy only. Did the facts proved by him at all tend to show, that Belden had acted with ordinary diligence in making enquiry for the indorser’s place of residence l We suppose that it is well settled, that when certain facts conducing to prove diligence, are either proved or conceded, the question whether they amount to due or legal diligence, is one for the decision of the court alone ; but when the question is, as here, what are the facts, and what was done by the holder in making enquiries, the jury are to decide it. And this is the doctrine of all the cases referred to by the counsel on both sides. Hooker testified, that Belden, after having spoken with him, as the cashier of the Farmers and Mechanics Bank, on the subject of the defendant’s residence, went out of that bank, for the purpose of ascertaining it, and soon after returned, and directed the witness to write the word “ Chickopee” upon the note ; which he did. If this testimony was to stand alone, and be considered without reference to any other facts which were proved in the case, we should probably say, that they did not amount to proof of legal diligence. But this was not all. Other facts were proved, which might have an important bearing upon this question. This note was payable at the Hartford Bank. The defendant, within a few months, had received notices, not only from that bank, but also from the Connecticut River and Exchange banks. The Farmers and Mechanics Bank, from whence Belden went out, with the declared purpose of obtaining information regarding the defendant’s residence, was notoriously within a few rods from the aforesaid banks, where the defendant was known. Would it be unreasonable for a jury, under such circumstances, to infer, that Belden, the holder of this note, a man of business, who knew his duty and felt his interest, did make enquiries of the agents of some of these banks? And if he did, the law would require no more of him. The weight of all this evidence it was the duty of the jury to consider. It presented a mixed question of law and fact. Bateman v. Joseph, 12 East 437. Browning v. Kinnear, 1 Niel Gow 81. (5 E. C. L. 471.) Bank of Utica v. Bender, 21 Wend. 643. Remer v. Downer, 23 Wend. 620. Spencer v. Bank of Salina, 3 Mill 520. The superior court, having admitted the testimony of Hooker, submitted it to the jury, with instructions as to the law of the case ; thus treating the question as one involving both law and fact, to be determined by the jury, under the instruction of the court. A majority of us approve of the course taken in this respect. We certainly do not intend to sanction any relaxation of the rules of law requiring diligence on the part of the holders of negotiable paper. And at the same time, we are not disposed to require of them any extraordinary pains-taking to determine which among the almost countless number of village post-offices in this country, will best accomodate the drawers and indorsers of bills and notes ; especially, when all difficulties on this subject may be so easily removed, by putting the name of the post-office upon the bill or note, when it is drawn or indorsed. Again, the defendant claimed that the discounting of the note in suit by Belclen, was usurious ; and that upon the facts stated in the motion, it was the duty of the court so to have said. Usury is connected only with loans, and not with sales. In all cases where the transaction is in fact a loan, though made to assume the form of a sale pr other disguise, and a rate per cent, beyond that of legal interest, is reserved or taken upon it intentionally, as a premium, the law pronounces it to be usurious. The most frequent expedient of the usurer, is, to cover an actual loan under the pretence of a sale or discount of a bill or note ; and it has been found difficult sometimes to detect the real character of the transaction. It seems now to be well understood, that, if a promissory note be good at its inception, and effective in the hands of the payee against the maker, and is what is called a business note, such note may be sold by the holder, like any chattel or other clmm in artfen. for such price or rate of discount as the parties may sf púlate for, without any presumed imputation of usury, but if the note is only made to raise money upon, and to become effective only by the indorsement of it, and thus is merely accomodation paper, the discounting of such paper at a rate of deduction greater than the lawful interest, is treated as a loan by the indorsee, and will be considered at least as prima facie usurious. The enquiry therefore was, notwithstanding the form of the transaction, whether it was a loan of money by Belden to C. tj- II. Chapin, or the bona fide purchase of a business note at a discount ? And this was a question of fact properly submitted to the jury. Munn v. Commission Co., 15 Johns. R. 44. Nichols v. Fearing, 7 Peters 103. Crain v. Hendricks, 7 Wend. 589. Knight v. Putnam, 3 Pick. 184. Lloyd v. Reach, 2 Conn. R. 175. Tuttle v. Clark, 4 Conn. R. 154. Phelps v. Kent, 2 Day 453. Talcott v. Goodwin, 3 Day 264. Carstairs v. Steen, 4 M. S. 192. Finally, the defendant insisted, that if liable at all, he was so only to the extent of the consideration paid by Belden upon the purchase of the note, with the interest. We may admit the doctrine claimed by the defendant, that as between the indorsee and his immediate indorser, the actual consideration of the transfer may be enquired into. But this principle, if true, is not applicable to the present case. Here the real transaction was between C. <f- H. Chapin, the payees of the note, and Belden, the purchaser. Lamb, the present defendant, was no party to the consideration of the contract of sale : he came in only as additional security for the ultimate payment of the note. The jury have found, that this note was originally a valid note ; and that Belden was the Iona fide purchaser of it. We see not, therefore, why he is not entitled to recover its full value, as well from the surety, as he would have been, if he had sued the makers. Such being the views of a majority of the court upon the several objections taken by the defendant, we shall advise that he is not entitled to a new trial. In this opinion Waite and Hinman, Is. fully concurred. [DISSENT — Williams, Ch. J. and Stores, J.] Williams, Ch. J. and Stores, J. dissented on the point of due diligence to ascertain the defendant’s place of residence, thinking the evidence, if fully credited, not sufficient to show, that such diligence had been used ; and so the jury should ^ave keen instructed. On the other points in the case, they with the majority. J J New trial not to be granted.