Majority
p. 228Pettingal, qui tam, against Brown.
Headnote
In a qui tam notion under the statute of usury brought after lapse of a year, to recover the excess of interest paid, the borrower is, after having discharged the principal, a good witness.This was an action of debt, under the statute for preventing usury, brought in the common pleas for the county of Oneida, to recover the excess of interest paid over and above the legal rate allowed.
The facts were, that one Joseph Loomis borrowed a sum of money from the defendant, and by way of security assigned to him a lease as a pledge, accompanied by a promissory note (intended to operate as a bill of sale) [*169] *for a horse and a cow. On repayment, the assignment and note were, by an agreement executed by both parties, to be void. They were, therefore, on the loan being returned, given up, and the agreement cancelled by tearing off the names and seals affixed.
The year limited by the act (1 Rev. Laws of N. Y. 57, 82,) for the party paying to bring his action having elapsed, the suit was by a third person.
To prove the usurious contract, and payment, Loomis the borrower was called on the part of the plaintiff: he was objected to by the defendant’s counsel as incompetent, and his testimony being • deemed inadmissible, the defendant obtained a verdict.
For thus excluding the evidence of Loomis, .he plaintiff tendered a bill of exceptions, on which the proceedings were brought up, and the question now was on the competency of Loomis the borrower.
p. 229The only question "for the court to determine is, whether, after a man has fairly.discharged, to its utmost extent, a usurious contract, by payment both of principal and interest, he shall not, in an action given by the statute to a third person, be competent to prove the usury. It is to be observed he can have no species of interest; the money is paid; the debt,.therefore, cannot be avoided, nor is he interested in the event of the suit, .for as it is brought by another person, it can be only to the advantage of him, and those for whom he proceeds, that it can enure. This point is settled in the case of Abrams v. Bunn, 4 Burr. 2251, so far as it is an authority in this court. The objection that a witness shall not be permitted to testify any thing which may invalidate an instrument .to which he has subscribed his name has, by later decisions, been restrained to negotiable paper alone. Baker v. Bent, 3 D. & E. 27, overruling in that' respect the judgment of Walton v. Shelly, 1D & E. 296. Therefore, the present case is clearly out of any of those reasonings on policy, &c. because the instruments were not negotiable, and were satisfied. Indeed how far they ought under any circumstance to prevail may be a question since the determination in *Jordaine v. Lashbroke and another, 7 D. & [*170] B. 601.[1] If the question be open in this court, it may be, with great justice, contended, that the case of Walton v. Shelly is an enroachment upon the landmarks of evidence, but howsoever that may be, the present is a very different question, for it does not go to the ivalidating any instrument, the money on those given having been paid, and the whole coming within the authority of Abrams v. Bunn. Public policy requires that no person who
Gold, for the plaintiff.
Brees, contra,
p. 230has signed an instrument shall be, in any cause, admitted as a witness. to invalidate it; because no man shall be allowed to testify against his own act. By this very court, in an action by the assignees of a certificated bankrupt to recover back the amount of a note given on a usurious consideration, the bankrupt was, in July term, 1802, held an incompetent witness to prove the usury. He was there clearly disinterested; his property was assigned to his assignees, and had they recovered, the amount of the verdict would have gone to his creditors. The case in Burrows applies to transactions where a written security is not given: there the borrower may be a witness ; and to the same effect is 2 Hawk. 386; 3 Woodd. 393. B ut where the contract is by writing, no one whose name is upon it can be received. Walton v. Shelly, 1 D. & E. 296. 2 Hawk. 387. 3 Woodd. 303. The point, therefore, upon the authority of Lord Mansfield, may be considered to be at rest. The distinctions since taken are subsequent to the revolution, and, therefore, not binding here. In them it is also to be observed that the judges are far from being consistent. Buller, 3 D. & E. 36, restrains their admissibility to cases of negotiable paper; Lord Kenyon, 7 D. & E. is for receiving in all cases the testimony of witnesses who have no direct interest; Ashhurst, J. however, totally dissenting. It is true the reasoning from policy may have been stronger in the case of negotiable paper, but as the law now stands, and the assignment of dioses in action constantly practiced, the principle has of late been much narrowed. If a [*171] written contract *(not negotiable) be assigned, the assignee “ may sue in the name of the original claimant, and such original claimant, shall not be permitted (at law) to undo his own transfer, or to obstruct the suit of the plaintiff." 2 Woodd. 388. in reply, was stopped by the court.
Gold,
We are unanimous that the judgment of
p. 231
the court below be reversed. This case does not come within any of those cited in favor of the defendant. The paper here is not only satisfied but destroyed. The action is not to annul the security, or take away a fair consideration from the defendant. There is no question of interest. For that, to render a witness incompetent, it has before been settled, that the interest must be in the event of the suit. By this determination neither public policy, nor the interest of the witness, can be affected ; he, therefore, was fully competent.
Judgment reversed.