Matthias v. Cook

Mr. Justioe Waukee delivered the opinion of the Court. When this note was executed, the act of 1849, in relation to interest, was in force. The first section of that act authorized the loan of money, at a rate of interest not exceeding ten per cent, per annum. Sess. Laws, 98. This act repealed so much of the fifty-fourth chapter of the Revised Statutes of 1845, as prohibited the reservation of a higher rate than six per cent, interest on money loaned. The fourth section of the act of 1845, prohibited the taking of a greater rate of interest than six per cent., and declared a forfeiture of three-fold the whole amount of interest reserved. But the act of 1849, amended this provision, so that for money loaned, ten per cent, might be reserved. These provisions remained in force until the passage of the act of 1857, (Scates’ Comp. 600,) which prohibits the reservation of more than ten per cent., and declares a forfeiture of all of the interest reserved, and repeals all other laws declaring a forfeiture for a reservation of usurious interest. This note was manifestly governed by the laws in force at the time of its execution in November, 1856, and not by the act of 1857, which was in force at the date of its maturity. The laws in operation at the time an agreement is made, enter into, and form a part of the contract. They are as much so, as if they were fully expressed in the agreement itself. It is by the law then in force, that the rights and liabilities of the parties are fixed and determined. Those rights are vested, and the legislature, and the courts, are powerless to alter them. It follows, that the sixth instruction, given for plaintiff, was erroneous. It declared, that there was no law under which defendants were entitled to deduct usury, claimed by them to have entered into the contract set out in the plea. It set up the usury, and only relied upon a forfeiture of the interest, "and issue was joined upon it. No reason is “perceived why the defendant may not insist upon a deduction of the interest reserved or paid, above ten per cent., as a defense, to that extent, under the act of 1849. This instruction should, therefore, not have been given. It is again urged that the court erred in refusing to discontinue the plaintiff’s action, on the defendant’s motion. The pleas only professed to answer a part of the cause of action. They left unanswered two hundred dollars of the sum claimed. On these pleas the plaintiff below joined issue, without taking judgment for the damages unanswered by the pleas. During the progress of the trial, and when the note was offered in evidence, the defendants moved the court for a discontinuance, as to the two hundred dollars not answered by the pleas. This motion was afterwards overruled, and the jury found a verdict for the full amount of the note and interest, upon which judgment was rendered. The rule of practice allowing a party to demand a discontinuance, is one highly technical, and not entitled to much favor at the hands of courts. Instead of promoting, it delays justice, and is not based upon reason, and should not be extended beyond the strict requirements of the rule. "When a discontinuance is produced, it is because there has been a chasm or hiatus produced in the proceedings, and it operates to discontinue the entire suit, and not as to a part only, of the cause of action. In this case the first motion was to discontinue the action only as to that part of action not answered by the pleas. Had this motion have been allowed, it would have been to split an entire cause of action. A discontinuance only operates as a non-suit, and leaves the party at liberty to commence again. Had this motion been allowed, the trial would have progressed to a determination, as to the portion of the damages to which pleas had been filed, and would have left the plaintiff at liberty to maintain another action on that part of the damages for which the suit was discontinued; thus giving two actions, on one entire demand, which the law will not allow. The defendant below was not entitled to a discontinuance of a part of the action, and that was all he asked. The motion to discontinue after the verdict of the jury was returned, came too late. The party, to avail himself of that right, must ask it before he takes any further steps in the cause, as by rejoining or proceeding to trial, etc., he waives his right to a discontinuance. The court committed no error in refusing his motions. The judgment of the court below is reversed, and the cause remanded. Judgment reversed.