The only questions presented in this case arise upon the charge, and the refusal to charge,, of the judge. His refusal to charge that the answer was broad enough to admit the defense of usury I think was right. The answers set up that the interest deducted by the plaintiffs, by agreement on discounting the two drafts, was one hundred and twenty-five dollars ($125), which was at the rate of two per cent a month, or 24 per cent a year for the time the draft had run. The proof showed that the drafts were discounted at different times, and by separate several contracts, and at a rate of interest of about one-eighth of one per cent .a day. The amount received by the drawers on the discount of both or either of the drafts' the witness could not state, as he did not recollect the date of either discount.
There was certainly some variance. Two several contracts, set up as one, a large difference in the amount of interest reserved, between the proof and the answer.
The defendants’ counsel seemed at first of the opinion that the variance was material, as they asked “permission to amend the answers to conform to the facts,” in reference to the amount of usury taken.
The court granted the motion upon terms which the *578. counsel declined to accept, and then insisted that the answers were sufficient without amendment.
Prior to the Code this variance would have been fatal to the defense of usury in any court. Cathin v. Gunter, 1 Kern., 373; New Or. G. L. and B. Co. v. Dudley, 8 Paige, 457 ; Morse v. Clayes, 11 Barb., 100 ; Clayes v. Thayer, 3 Hill, 565.
Thq Code provides a new rule as to the question of variance ; it declares that, “no variance between the allegation in a pleading and the proof shall be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.” Code, § 169.
The plaintiffs in this case claimed to have been actually misled to their prejudice. It was not insisted by the defendants that any proof thereof should have been given to the court, as required by the Code, but without objection it was apparently assumed that the statement was true, and on that assumption the amendment was granted upon terms, and no objection or exception-was made or taken by the defendants. It is too late to object now either to the absence of proof of being misled or to the decision of .the court as to the terms upon which the amendment was allowed.
In the absence of any objection.to the want of proof of being misled, it must be assumed that the parties assented to the truth of the statement, and to the propriety of a decision being made without such proof. The defendants had the legal right to demand the proof as the Code provides, or they might waive the strict proof and accept a statement of counsel in lieu of proof, nor was any objection or exception taken to the decision of the court on the application to answer. Of course that decision cannot be reviewed.
It was then legally decided that this was a material variance under the Code. Proof to establish the defense of usury was, therefore, inadmissible under this answer.
*579The defendants insist here that these drafts having been filled up by the drawer for sums larger than he was authorized to do by the acceptors, are void as against any but bona fide holders, and that the plaintiffs are not bona fide holders. ISTo such point was taken at the trial.
On the contrary, the defendants insisted there, "in various forms, that the drafts, under the circumstances, were forgeries, and were absolutely void. To the charge of the court that they were not void, but valid in plaintiffs’ hands, if the plaintiffs were bona fide holders, the defendants excepted, though their counsel here properly concedes that the proposition was legally sound.
The court, so far as the case shows, did not direct a verdict. It must be presumed, in the absence of any evidence to the contrary, that the court decided properly and charged legally. Indeed, if the charge or decision were otherwise, and no exception taken, this court could not review it or reverse for any such cause. This court can only review such decisions of a trial court as are excepted to.
It is insisted here that the plaintiffs are not bona fide holders; whether they were or not, under the evidence, is an interesting question.
The question of usury, as such, with all its penalties, is out of the case.
It seems to me quite clear that a party may be a bona fide holder of commercial paper void for usury, and he may recover upon it, provided the usury is not pleaded.
If a note, usurious in its inception, in the hands of A., the payee who had exacted and received usurious interest on its discount, were then before its maturity passed to B. for full value advanced in the ordinary course of business, I think B. would be a bona fide holder, and would recover unless usury were pleaded.
Banks are in the daily habit of discounting notes for their customers without a word of inquiry as to the origin consideration of the note; occasionally they may take a *580note void for usury, or by the statute against betting and gaming, still I think it cannot be denied that they are Iona fide holders. Yet even such holders cannot recover upon paper void for usury, or as given for a gaming debt, if such defensé be pleaded. If not pleaded as in the case ' at bar, but some other defense relied upon, the bona fide character of the holder would exclude that defense, unless it made the paper void.
If the holder himself had intentionally taken usury, I agree that he could not be deemed a holder in good faith. Such are the cases of Ramsdell v. Morgan, 16 Wend., 574; Dean v. Howell, H. & Den. Sup., 39; Keatger v. Parks, 2 Sandf., 60.
But suppose the holder did not give the full amount of the draft in purchasing, does it necessarily follow that he cannot be a bona fide holder?
Had these drafts been accepted for value, of course they could have been legally sold at any price. Had the drawer so represented them by authority of the acceptors, they could have been sold as any other chattel and the parties estopped from setting up usury. Holmes v. Williams, 10 Paige, 336.
Suppose the holder purchased the drafts at a usurious rate of interest in the honest conviction that they were business paper,, but without any such representations by the drawer, would he then be a bona fide holder ? ' There ;are authorities in the affirmative. Gould v. Seger, 5 Duer, 270; Mechanics’ Bank of Williamsburgh v. Foote, 44 Barb., 87.
Such may have been the purchase in this case. The facts disclosed on the trial leave it uncertain. The only proof by the defendants simply showed that the drawer “ negotiated these drafts to the plaintiffs” and the amount he received for them. The plaintiffs offered to prove “ statements made to plaintiffs by the drawer at the time of the transfer,” which the court rejected on the defendants’ objection; although it is quite clear that the *581transaction between the parties was usurious, and the drafts would have been void for that cause had that defense been pleaded.
Possession of these drafts by the drawers was jn-ima facie evidence of ownership for a good" consideration. James v. Chalmers, 2 Seld., 209.
Had the plaintiffs a right to rely upon this or upon any other evidence of a like tendency, and purchase the drafts at their fair market value, subject only to the peril of usury if they were not business drafts and usury were pleaded?
To constitute a party a hona fide holder, it is now only necessary that he should have taken the paper for value advanced in the ordinary course of business. He is not bound to make inquiries, nor to act upon circumstances which would put an ordinarily careful man upon inquiry, unless they are of such a character as to impeach the honesty of the holder. Gross negligence even has been held insufficient to impeach his holding,where a party has given consideration for the bill.” Goodman v. Harvey, 4 Adol. & Ell., 870; Belmont Branch of Ohio State Bank v. Hoge, decided in this court last June Term, not yet reported, and cases there cited.
I do not deem the decision of this point necessary to the determination of this case, and therefore express no opinion upon it.
The only other ground of error urged is, that the court allowed.a deduction from the amount of the proceeds of the judgment upon the security assigned to the plaintiffs “ beyond the legal poundage and fees of the sheriff.”
The gross amount proceeds of the notes were $1,920.74. From which were deducted by the sheriff:
For auctioneer’s fees,......... $108 79
Bent,................................... 118 57
Sheriff’s bill,............................ 94 64-
Attorney’s fees, ..................100 00
$421 98
*582¡No special objection to any particular item was made, only the judge was requested to charge that no deduction could be made “ beyond the legal poundage and fees of the sheriff.” Therefore, if either or any part of either of the other items might properly be deducted, the objection fails.
In entering up the judgment no attorney’s fees were included, and the judgment was not all collected from insufficiency of property. It was entirely proper then to deduct a reasonable compensation for the attorneys; not entirely to be governed by the fee bill, but a sum proper as between attorney - and client.
The judgment should therefore be affirmed, with costs.
All concur except Smith and Hunt, JJ.
Judgment affirmed.