By the Court.
Ingraham, First, J.The motion for a nonsuit was properly denied. The plaintiff had rested, and at that time had proved a yprima faeie case, sufficient to entitle him to recover. The defendant, after he had examined a witness, proved an affirmative defence, and immediately on the close of that witness’ testimony, asked to have the complaint dismissed. There would have been no propriety in granting the motion at that time. The plaintiff had a right to contradict that witness, to explain his testimony, or in any other way to rebut his testimony.
Nor was there any ground on which the testimony of Roberts, showing the terms of the contract with the plaintiff, could be excluded. It was true there had been evidence given by Kemp, that the plaintiff had made certain admissions to him. As before remarked, he might have been contradicted. Even if the admissions were made, they were not of that character that made them operate as an estoppel. They were made after the transaction, and furnished no foundation for any transaction on the part of the defendant, by which he could sustain loss. The plaintiff might show, that notwithstanding such conversation with Kemp, the original transaction was not tainted with usury. What weight the court or jury would give to such evidence, in the face of the admissions, was to be decided as a matter of fact, but the court would not exclude the evidence.
There was no error in the judge’s charge. He submitted to the jury the question of usury as solely for their decision. He could not, under the testimony, charge the jury that the defendant was entitled to their verdict. The instruction as to the admissions of parties was not different from that repeatedly sanctioned by the court.
Besides, there was no proper exception taken to the charge. The exception is to the whole charge, and it is now well set-*253tied that such an exception furnishes no ground, for reversing a judgment. (Jones v. Osgood, 2 Seld. 233; Caldwell v. Murphy, 1 Kernan, 416.
Judgment affirmed