Watkins v. Watkins , 2 Stew. 485 ( 1830 )

By JUDGE WHITE.

Were it not that it might be deemed of some importance more extensively to make known the views of this Court, on a point of practice often occurring on the circuits, I should consider it unnecessary to file a written opinion in this case, as the only question raised by the assignment of errors, is embraced by previous adjudications.

It has been the general policy of civilized and commercial nations, to fix a certain rate of interest for the loan or use of money; and as this regulation has been considered of vital importance to society, to enforce the observance of the laws on the subject by penal sanctions, or threatened losses. But the facility with which contracts can be made, importing on their face a fair consideration, puts it in the power of the usurer to evade the prohibitions of the law, if the contracts were subjected to none but the ordinary rules of evidence. Hence the necessity of the provision in our statute, that the borrower should be a witness to prove the usurious consideration of notes, bonds, &c. This, however, being a variation from the general principle, wholesome in itself, that no person shall testify in his own case, it became necessary to place it under certain restrictions, and not to allow the borrower to give testimony, “ if the person against whom such evidence is offered to be given, will deny upon oath, to be administered in open Court, the truth of whatsuch witness offers to prove against him.” Now, to apply these express provisions of the statute to this case, neither the nominal nor beneficial plain-, tiff denied on oath the only material fact, which the defendant offered to prove against them; but the person for whose use the suit was brought, merely denied his knowledge of the facts stated. To permit such a denial as this to exclude the evidence of the borrower, would not only be contrary to the plain words of the statute, but in many cases would tend to defeat the very object of the law itself. For whenever the usurer should take a note or bond-for the sum claimed, and transfer it to a third person, ignorant of the consideration, that person could safely swear that he did not know the contract was tainted with usury, and thereby deprive the defendant of his oath, which is often the only method of proving the facts in avoidance. This, however, the statute evidently intended to prevent; But as already intimated, this very question was decided by this Court, at the July term, 1837.

We are therefore ofopinion, that there is error, that the judgment must be reversed, and the cause remanded. ^*

* Seethe case of Fariss & Powell v. King, 1 Stewart’s Reports, 255.