Cloyes v. Thayer & Morse — 3 Hill & Den. 564

Majority

p. 564

Cloyes vs. Thayer & Morse.

Headnote

The notice of the defence of usury required to be given by the dot of May 15th* 1837, in order to entitle the defendant to the testimony of the plaintiff, cari only be interposed, as in other cases, with the general issue. Per Nelson, Ch. J. Such notice should contain the substantial requisites of a plea; viz. a precise statement of the usurious contract and the amount of usurious interest received. Per Nelson, Ch. J.

Where, in an action upon a promissory note, the defendant gave notice, in general tends, that he would prove the note to have been given for money loaned upon a usurious consideration; held, that the notice was defective, and that the plaintiff was not obliged to testify.

A witness is not bound to testify to matters which may tend to criminate him of even subject him to a penalty.

Accordingly, where, in an action upon a promissory note by one to whonl it had been transferred, the payee was called to prove that it was given upon a usurious consideration; held, that he was not bound to testify, though the note was made prior to the act of May 15th, 1837.

The witness’ privilege is personal, and if he assert it, but is nevertheless improperly compelled to answer, the party cannot allege this for error.

Otherwise, however, if the witness be improperly excused from testifying; in which case the party prejudiced by it may bring error, &c. Per Nelson, Ch. J.

Assumpsit, tried at the Onondaga circuit, in October, 1841, before Moseley, C. Judge. The action was on a promissory, note bearing date November 27th, 1835, payable to bearer, made by the defendants and transferred to the plaintiff by Isaac Hovey, the payee. The defendants pleaded the general issue, and gave notice, in general terms, that they would prove the note to have been given to Hovey upon a usurious consideration $

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also, that the note was given upon a loan of money by Hovey to one of the defendants, the other signing it as security ; and that upon said loan it was agreed that Hovey should receive more than at the rate of seven per cent, per annum, contrary to the statute &c. The notice was duly verified. On the trial, the execution of the note was admitted, and the defendants’ counsel called the plaintiff as a witness, for the purpose of proving the alleged usury. The plaintiff’s counsel objected to his being sworn, on the ground that the notice given with the defendants’ plea was defective in not setting forth any usurious agreement. The circuit judge overruled the objection, and the plaintiff’s counsel excepted. The plaintiff was then sworn and examined as a witness. The defendants’ counsel called Isaac Hovey as a witness, and asked him if he was the original holder of the note. The witness declined answering the question, for fear, as he said, that his reply might form a link in the chain of evidence to convict him of a criminal offence. The circuit judge required the witness to answer the question and to testify in relation to the receipt by him of the alleged usury ; giving as the reason for his decision that it was not an offence to take usury when the note in question was executed. The plaintiff’s counsel excepted. The jury rendered a verdict in favor of the defendants; and the plaintiff now moved for a new trial on a bill of exceptions.

T. Jenkins, for the plaintiff,

B. D. Noxon, for the defendants.

The act of 1837, (Sess, Laws ’37, p. 487, § 2,) provides, among other things, that if the defendant shall plead or give notice of the defence of usury and shall verify the same by affidavit, he may, for the purpose of proving the usury, call and examine the plaintiff as a witness in the same manner as other witnesses It is quite obvious from the connection in which the defendant is allowed

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to give the notice required by the statute, that it is to be given as in other cases under the general issue. It should contain matters which if pleaded would constitute a good plea of usury. Indeed it ought to embrace all the substantial requisites^[1] of such a plea—i. e. a precise statement of the usurious contract and the amount of usurious interest received. (Tate v. Wellings, 3 T. R. 531 ; Hinton v. Roffey, 3 Mod. 35.) In the latter case it was expressly held that, in pleading the statute of usury, the corrupt agreement and the usurious interest taken must be accurately set forth. (And see 2 Chitty’s Pl. 46, 7 ; 1 Saund. Rep. 295,note (1) ; Carlisle v. Trears, Cowp. 671 ; Comyn on Usury, 203 ; Vroom v. Ditmas, 4 Paige, 533.)

The court erred, also, in compelling the payee of the note to answer questions tending to criminate himself. It was expressly held in Burns v. Kempshall, ( 24 Wend. 360 ,) that the answer in a like case might tend to subject him either to a penalty or to an indictment for a misdemeanor.

But the error is not available to the plaintiff. The privilege belongs exclusively to the witness, who may take advantage of it or not at his pleasure. The party to the suit cannot object. He has no right to insist upon the privilege and require the court to exclude the evidence on that ground. The witness may waive it and testify, in spite of any objection coming from the party or his counsel. (Thomas v. Newton, 1 Mood. & Malk. 48, note^[2] ; Treat v. Browning, 4 Conn. R. 408 ; Southard v. Rexford, 6 Cowen, 259 ; Cowen & Hill’s Notes to Phil. Ev. 748.)^[2] If ordered to testify in a case where he is privileged, it is a matter exclusively between the court and the witness. The latter may stand out and be committed for contempt, or he may submit; but the party has no right to interfere or complain of the error. It would be otherwise if the court allowed the privilege in a case where the witness had

(a) (a) See Fuller v. Rood, (ante p. 258.)

(b) (b) 5) See Ward v. The People, (ante, p. 395, 398, note (6).)

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not brought himself within the rule, as the party would then be improperly deprived of his testimony.

Upon the other ground, however, viz. that the notice given with the plea was defective under the statute of 1837, a new trial must be granted for the error in compelling the plaintiff to be sworn and give evidence on the question of usury. It does not appear that he testified to any material fact, and therefore the error might have been disregarded on a case ; but as this is a bill of exceptions, it was not important to state any thing more in the bill than sufficient to show that the question was properly raised on the trial.

New trial granted.