Persons v. Hight ( 1848 )

By the

J.-

delivering the opinion.

Thomas F. Persons as Administrator of John Persons, deceased, brought an action of Assumpsit in the Superior Court of Warren county, against Henry Hight, on a joint and several promissory note, given on the 6th of September, 1843, by the defendant and one Fielding Hill, then in life, since deceased, fof $2,660 83 payable one day after date, with a credit of fill 64, indorsed 16 th January, 1845, and a further paymect of $100, entered- the 9th' February thereafter.

To this suit, the defendant pleaded usury, setting forth, in his answer, fully and minutely, the facts of the transaction, and gave notice thereof, according to the provisions of the Actof the General Assembly, passed the 28th December, 1842.

The record does not disclose very clearly what transpired on the first trial. It appears, however, that the defendant verified his plea — that the plaintiff filed his affidavit also, alleging that be could not state, neither did he know, whether the plea of the defendant was true or not; nor was he cognizant of the usury which was charged to exist in the contract. A verdict was rendered for the plaintiff for $1,859 06, with cost of suit, from which the plaintiff appealed, and a bill of exceptions is predicated upon what took place on. the final trial.

The plaintiff read his note and rested his case with the Jury. — > The defendant then offered in evidence, his own affidavit in support of his plea, to the reading of which the plaintiff objected, upon the ground that the Act of1842, to compel parties plaintiffs,where the plea of usury is filed, to discover, on oath, the truth or falsehood of the facts stated in such plea, did not apply to the representatives of deceased persons, but to the original parties to the contract only. This objection was overruled, and thereupon counsel for the plaintiff excepted. Counsel for the plaintiff then tendered in evidence, the affidavit of the plaintiff', in which he swears, “ that the facts set forth in the defendant’s plea, as to the usury in the note sued on, are not true ; and that the con tract was and is not usurious according to the best of his knowledge.” The Court ruled that said affidavit was in compliance with the statute, and ordered the same to be read to the Jury, which was done. The defendant next offered, in eviednce, the affidavit of the plaintiff, made on the first trial, as heretofore stated, the reading of which was objected to by counsel for the plaintiff, but allowed by the Court, which decision was excepted to. The defendant next offered his own affidavit in support of his plea, which was objected to, but admitted — whereupon counsel for the plaintiff excepted.

The case here closed, and the Court was requested, by counsel for the plaintiff, to charge the Jury that the plaintiff having filed his affidavit in compliance with the law, the affidavit of the defendant was not evidence before them of the truth of his plea: and that the defendant having failed to introduce any proof in support of his plea, the plaintiff was entitled to recover the whole amount of bis note, with interest thereon. But the Court declined to charge the Jury as requested, and on the contrary, instructed them, “That the Act of 1842 was crude and difficult of construction. But that when the plaintiff, on the requisition of the defendant, makes his affidavit as to the matter of the plea, and fails to make any disclosure as to thefacts stated m the flea, hut is merely negative in its character, it is comfetentfor the defendant to read his affidavit to the facts.” The special Jury returned a verdict for $1993,70, with costs. And for the refusal of the Court to charge as requested, as well as on account of the instructions given, the counsel for plaintiff excepted.

This is not a fit occasion to discuss the policy or impolicy of usury laws; or to review the discordant opinions of the advocates for and against the liberty of the citizen to make his own terms in money matters, as in all other bargains. Perhaps there is no one subject about which the variable minds of men have differed so irreconcileably. One class of political economists, treat all legal restraints upon lending and borrowing, as the relics of by-gone days of ignorance and superstition, and resting for their support and justification, upon no intrinsic worth. They affirm that such regulations exist, merely because they have heretofore existed, and rely mainly upon the authority of Aristotle, who contended that money ought not to bear interest, because it was naturally barren and unproductive ; or of Moses, the Jewish Lawgiver, who forbade this practice among his countrymen. They insist that all restrictions are inexpedient — that they enhance the rate of interest, thereby defeating their own object. That capital, like'com and all other commodities, should be governed by the condition of the market; its price, like every thing, to be controlled by demand and supply. At the head of the free traders, in money matters, stands conspicuously the name of Jeremy Bentham, whose work against all usury laws, published in 1837, it is believed, has produced a powerful impression, both upon the legislation of Great Britain and of this country, since that period.

On the other hand it is urged, that these views of Bentham and others, are visionary, and at variance with experience and the fundamental maxims of every well regulated State. That previous to the reign of Henry VIII. when the rate of interest was established at 10 per cent., the customary rates were 40percent. That Hindostán and China are both free trade countries in money matters, and tliat tire usual rate of interest in the one is 20, arid in the other 24 per cent. That G-reece and Rome, like most other countries, had tried the free trade system, and like them, had abandoned it, finding that its tendency was to monopolize all the riches in the land in the hands of those who never worked for their wealth, and to the utter impoverishment of all the industrial trades and employments. That, so exorbitant were the exactions of the usurers of Rome particularly, that it frequently convulsed the State with the most disastrous revolutions. That but for the existing laws, the world would be continually plunged in the most ruinous speculations. That money is different from all other articles of merchandize. That these are the product of individual labor and enterprize, while money is brought into existence by the government. And that the object of its creation is to benefit the public and not to foster private emolument. That on this account, the State posesses the right, in a peculiar manner, to prevent the currency and circulating medium, designed for the good of the common country, and whole community, and which is the representative of the value of any species of property, to be used or perverted from its original design and legitimate purpose. That the essential difference between money and merchandize, of whatever species, is this : All need, and must have, money; nothing else will pay taxes and other public dues, or is a lawful tender for debts ; and hence, a scarcity here is felt by all. And yet the amount, both of specie and of paper, is necessarily limited — whereas, any other commodity is indispensible to no one. One community or individual requires one thing, another something else; and the wants of all, in these respects, may be supplied by some substitute.' If the potato crop in Ireland, or the wheat harvest in any other portion of Europe, fails, an immediate substitute is found in the abundant productions of this country, which is destined to become the granary of the world. Hence, the laws of Commerce interpose, to keep down prices. Moreover, it is contended that experience, as well as the general voice of the civilized world, ancient and modern, combine to condemn usury. Non nostrum tantas componere lites.

In this, as in all other controversies, where extreme opinions are entertained, the truth, perhaps, will be found ultimately to lie in a middle course, medio tutissimus ibis. I have abridged a few of the leading arguments for and against usury laws. And while I am not prepared to hold with Lord Bacon, that the usurer is the greatest Sabbath-breaker, because- his plough goeth overy Sunday; and that he is the drone that Virgil speaketh of: “ Ignammfucos pecus a proosepibus circuit:” much less that the guilt of taking money in the way of usury, is equal to the guilt of taking life; and that usurers should justly be ranked with murderers, and their bodies denied the rites of sepulture. Still, I am far from approving the total abolition of all laws upon this subject. Indeed, I am entirely satisfied, that usury iaws are founded in great principles of public policy. I sincerely desire, that some means may yet be devised to suppress the evil, without encouraging the borrower to violate his contract. In my humble opinion, borrowers as well as lenders, should be deterred alike from engaging in this illegal and forbidden traffic. Besides, I must think, that in a contest between the indorsee of a usurious note, who had no agency whatever in the corrupt transaction, and the borrower, who is unquestionably, in morals, if not in law, a par-ticeps crimmis, the loss should always fall on the borrower.

All these grave questions, however, address themselves to another department of the Government. So far, the Legislature of this State seems to have acted upon the principle, that allprivate inconvenience must yield to public considerations. And in this conviction, the Statute of 1842 was enacted. It was passed, no doubt, to prevent usury. And it is, to a.ll intents and purposes, a remedial Statute. It was intended to relieve the borrower from the expense and delay of a proceeding in Chancery to obtain discovery; and likewise, from the operation of the rule in Equity, that the borrower should do equity, before he could be heard ; that is, pay up the principal and lawful interest which he admitted to be due. And I am ready and willing, in the utmost good faith, to give force and effect to the law.

It purports to bo an Act “ to compel parties plaintiffs, in the several Courts of this State, where the plea of usury is filed, to discover on oath the truth or falsehood of the facts stated in the-plea; or to allow the defendant, in case of refusal on the part of the plaintiff, to establish the facts contained in his plea, by his own oath, without filing a bill for discovery.

Section 1, declares, “ That in all cases in the several Courts in this State, where usury shall be pleaded, the party plaintiff in such case, upon notice of such plea, accompanied by a copy of such plea, and which shall be served on said plaintiff, his agent or attorney, within one month from the filing of such plea of the case, in the Superior or Inferior Court, and within ten days, if the base is in any Justice’s Court, or any other Court, discover on oath by his written affidavit, to be made before some officer legally authorized to administer an oath, whether the fact or facts, set forth in said plea, are true as to the usury, and whether or not the contract upon which said suit is brought, 'was usurious, and such written affidavit may be read in evidence, on the trial of said case, by either party.”

Section 2d. “ That if any party plaintiff shall fail or refuse to make the discovery as provided in the first section of this Act; that the party defendant in said case, may make an affidavit in writing before any officer authorized to administer an oath, of the truth of the facts set forth in his plea as to the usury therein pleaded, and said affidavit of the defendant, may be read on the trial by either party to said case.”

Section 3d. “ That the party whose affidavit is used as evidence, as provided in the first or second sections of the Act, shall be put upon-the stand and cross-examined by the other party as witnesses.” Latos, 1842, p. 178.

Two questions are made by the record, as to the interpretation of this Statute.

[1.] First, is it restricted to the original payee of the note ? or does it apply also to his legal representative, who may sue thereon after his death ? Secondly, if the plaintiff fails to discov er the usury set forth in the plea, from want of knowledge of the fact, does that authorise the defendant to read his own affidavit on the trial in support of his plea? The Circuit held—

1st. That the Act applied as well to administrators as to the original contracting party. And,

2d. That the plaintiff failing from ignorance or any other cause, to discover the usury set forth in the plea, entitled the defendant to introduce his own oath to the Jury, to sustain his defence.

This Court has in several cases, particularly in Ezekiel vs Dixon, 3 Kelly, 14, announced the general rules by which it will be guided in the construction of Statutes; and I am happy to add, that they seem to have secured the general acquiescence and approbation of the profession. The current of authority in this country, at least at the present day, is in favor of reading Statutes according to the natural and most obvious impoit of the lan-guagc, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. The words of a Statute, says Chancellor Kent, if of common use, are to be taken in their natural and ordinary signification; and this is now received as an elementary rule. 5 Hill, 538. Let us test the Statute under discussion by this doctrine.

It applies expressly to all “parties plaintiffs;” whether the original payee or his legal representative ; and it is right that it should. The transferee of a usurious contract, or the executor or administrator of the deceased payee, may be fully acquainted with the terms of the agreement, either from having been present at its execution, or from information derived directly from the party himself; and in either case, he should be compelled to testify. We are clear, therefore, in coming to the same conclusion upon this point, at which the learned Judge arrived, who delivered the opinion of the Court below.

[2.] We are not able, however, to concur with our brother Sayre upon the othej proposition ; namely, that the plaintiffhaving filed his affidavit in compliance with the provisions of the Statute, but failing to discover the usury, from inability to do so, entitled the defendant to read, and rely on his own oath before the .Jury, in support of his plea. It is the opinion of this Court, that this privilege is only allowed the defendant, when the plaintiff neglects or refuses to testify; but never, we apprehend, when he makes oath in terms of the law. If the second section of the Statute authorized the introduction of the defendant’s own oath, because the plaintiff failed from want of knowledge, to discover "the facts set forth in the plea, it would be palpably unconstitutional, as containing matter different from what was expressed in the title of the Act, which only permits the defendant to establish his plea by his own oath, in case of refusal by the plaintiff to swear. The failure, therefore, contemplated in the second section, is either equivalent to refusal, or else that part of the Act is void, for the reason already stated. The meaning of the Legislature seems to be this : if the plaintiff makes oath, that the fact or facts set forth in the plea as to the usury are not, true, and that the contract up.on which the suit is brought, is not usurious; there is an end of the matter, unless the defendant see fit to put the plaintiff upon the stand and cross-examine him as other witnesses. If, however, he refuse to testify, which may be indicated, either by some overt act or his failure to file his affidavit, then the defendant, by way of penalty upon plaintiff and protection of himself, is granted the extraordinary right of sustaining his defence by his own oath. Surely the framers of the Act never could have intended that this anomalous privilege should be guaranteed to the debtor of a dead man’s estate, because the administrator is ignorant of the usury with which the contract sued on is alleged to be tainted; and therefore fails in his affidavit to discover the fact or facts set forth in the plea. A Bill for discovery would secure no such benefit, If the answer of the defendant denies all the allegations in the Bill as to the usury, the complainant must seek proof, ab extra, to make out his defence.

Whether the deposition of the administrator was sufficiently ful, it is wholly unnecessary to determine. The presiding Judge decided that it was ; and having so ruled, he ought, as we think,, to have excluded the affidavit of the defendant. Both should not have gone to the Jury. Even were it defective, that would not have justified the introduction of the defendant’s affidavit. For again- analogizing this Common Law remedy, to a proceeding in Chancery; if the answer to a Bill for discovery be insufficient, the complainant is not therefore entitled to take the Bill as confessed,, and proceed to trial ex parte. He can only do this under the rules in Equity, when the defendant remains in contempt after due notice. The complainant’s course is to except to the answer, and if it be found imperfect, the defendant, will be required to answer over. It would be a monstrous doctrine, to hold that where the plea, as in this case, contains a great variety and multiplicity of facts, that the failure of the plaintiff to answer each and all of them, whether from inadvertence or otherwise, should subject him to the severe infliction of allowing the defendant to prove his own plea. Nor could he extricate himself from the difficulty in the present case, by amending, even if that were admissible under the Statute, inasmuch as he had the judgment of the Court that his affidavit was complete; to which decision, the other party did not except, as it was his right to do.

But suppose it be conceded, that the deposition of the plaintiff was defective, for the reason that it was not as an answer in Equity should be, fully responsive to all the facts charged as to the usury; or that the affiant did not deny the usury in the,contract, to the best of his belief as, well as knowledge, as I am inclined to think he should have done ; or from any other cause: and that it was not amendable. Can this Court on a writ of error, sit in judgment upon this deposition, and justify the admission of the defendant’s oath upon the ground that the plaintiff’s was not in terms of the Act, notwithstanding the presiding Judge decided that is was ? If I rightly understand the organization of this Court, it was the intention of the Act calling it into being, that it should be strictly an appellate Court for the re-examination and correction of erroneous decisions actually made by the Superior Courts; and its success as well as usefulness, will depend upon its being able satisfactorily to accomplish the work which has been given it to do. I would not affect to. undervalue the right of appeal which it affords, and should be most unwilling improperly to restrict or limit its exercise. Such I believe will not bo the effect of the construction which’is here put upon our powers. The Superior Courts can commit no error which may not be reached here, if the party below present the question in the proper shape, and at the right time, for their decision. In this case, the defendant in error might have excepted to the judgment of the Court below, as to the sufficiency of the plaintiff’s oath. Failing to do so, he must be considered as having acquiesced in it; nor can it now be reached and reversed, for the purpose of justifying the admission of his affidavit. Not merely our own convenience, but the paramount interest of the country requires, that we should not only hear, but promptly determine also, all the causes which may be carried up from the Superior Courts. To prevent this Court from becoming what it was feared it would be, and in many of the States actually is — an engine of oppression, merely from delay — -I am inclined to think that it will be found expedient to confine our jurisdiction to alleged errors in the decisions, sentences, judgments and decrees of the Superior Courts, as they are exhibited in the Bill of exceptions, and transcript of the record before us.

What, I ask, was the object of the Act of 1S42 í It was to allow the defendant to use the plaintiff as a witness, provided he would submit to an examination. It adopts, in substance, the provisions of the Act of New York, passed in May, 1837, to prevent usury, and which is as follows: “ Whenever, in any action at lawr the defendant shall plead or give notice of the defence of usury, and verify the truth of his plea or notice 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 are called and examined.” See L. 1837,^?. 487. This Statute differs from ours in not authorizing the plaintiff to file his written affidavit, but subjects him, at once, to an we tenus examination. And to this •extent, it seems to me, to be more efficacious. If the object be to elicit truth, the whole truth, and nothing but the truth, much better to put the plaintiff upon the stand at once, and subject him to a viva voce examination. How seldom is the plea of usury at law, established by the answer of the plaintiff to a bill filed for ■discovery. So far from giving additional vitality and energy to . the measure, by holding, contrary to the language of the Act, that the affidavit of the plaintiff ought, in analogy to an answer in Eq*- . uity,-“ full, true, direct and perfect answer make to any allegation, &c.” it would unquestionably weaken its force and effect, by compelling all plaintiffs to seek the aid of ingenious counsel, to assist in drawing their affidavits. The Legislature have considered better of this matter. They require a simple affidavit, “ before some officer legally authorized to administer an oath, that the facts set forth in the plea, are, or are not, true, and that the contract, upon which the suit is brought, is, or is not, usurious.” And if he is not satisfied, the defendant may then, according to the third section of the Statute, and in the words of the New York Act, •“ call and examine the plaintiff as a witness, in the same manner as other witnesses are called and examined.” And what profit would it be to the defendant, to require that the affidavit of the plaintiff should correspond to an answer in Equity 1 The terms of the usurious contract, and the quantum of the usurious interest •or premium, must not only be specified in the plea, but distinctly and correctly set out. And the defendant must prove the usury as laid; and if he fails in proving the usurious contract, in the way and manner in which he has charged it in his plea, he must fail. Comyn on Usury, 203. Tate vs. Willings, 3 Durn. & East, 538. 2 M.S & 377. 2 Show. 329. 3 Mod. 34. 4 Taunt. 810. 6 T. R. 267. If the plaintiff, therefore, means truly, in the terms of the Act of 1842, that the facts, as to the usury, as set forth in the plea, are not true, and the defendant is unable to establish them by alunde testimony, he must fail; and that, too, notwithstanding the plaintiff should distinctly admit, that the contract was usurious, but set forth a different agreement from that stated in the plea.

But I repeat, that we should bo cautious in putting a construction upon this Act, which would tend to dispense with the cross-examination of the party upon the stand, or which would necessarily substitute his well-pondered and ingeniously devised affidavit in lieu thereof. And I beg leave to avail myself of the very appropriate remarks of Judge Blackstone, in support of this view. “ This open examination, in the presence of all mankind, the parties, their attorneys, the counsel, and all by-standers, and before the Judge and Jury, is more, much more conducive to the clearing up of truth, than the private and secret examination, ta ken down in writing before an officer, where a person may frequently depose that, in private, which he will be ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up Ms depositions in Ms own form and language ; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do, after a written deposition is once taken. Besides the occasional questions of the Judge, the Jury, and the counsel, propounded to the witness on a sudden, will sift out the truth much better than a formal set of interrogatories, (or plea,) previously penned and settled. Nor is the presence of the Judge, during the examination, a matter of small importance. For, besides the respect and awe which his presence will naturally inspire, he is able by use and experience, to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence, have an opportunity of observing the quality, age, education,understanding, demeanor and inclination of the witnesses in which points all persons must appear alike, when their depositions are reduced to writing, and read in the absence of those who made them. Frequently, as much may be collected from the manner as the matter of the witness.” 3 Black. Com. 379.

And I take this occasion to say, that my youthful a dmiration of the commentaries of this great teacher, grows with advancing years. They well deserve the magnificent eulogy of a late biographer, who says, “they combine the copious learning of a Coke, and the methodical arrangement of Hale, Gilbert and Foster, with the smooth and flowing style of Pope and Addison.”

Tlie following appropriate and judicious-remarks appear in the first Eeport of the Commissioners on Practice and Pleadings, under the amended Constitution of New York, on the subject of the examination of parties to the suit: “ Two modes of examination have been proposed, one oral, and the other upon written interrogatories. The latter is the method of the Civil Law. We think the question is decided by the Act of December, and if it were not, we should still prefer the oral examination. A written deposition taken in private, is not the best means of eliciting the truth ; nor do we see why the law should be so tender of the consciences of parties, when it is so hard with the consciences of witnesses. These are brought into the Court — are made to waste their time about a matter not their own; and when called to the stand, are subjected to the most searching, and often offensive, examination. Why should he who brought them there, be exempted from the same scrutiny?” Code of Practice, ¶. 244.

Subsequent reflection and examination have confirmed our first impression upon hearing the argument upon the second point, in the Bill of Exceptions, which was, that the Court below erred in the construction which it put upon the Statute. It has been suggested, that the decision was misapprehended, and that the presiding Judge let in the affidavit of the defendant, because the oath of the plaintiff was insufficient. No such inference would appear to be warranted by the transcript before us. On the contrary, it shows conclusively that the affidavit was solemnly adjudged tobe in compliance with the law; and the only reason assigned for the introduction of the defendant’s testimony, to establish, his plea, is, that the affidavit of the plaintiff failed to discover the usury. And the Court is unanimously of the opinion, that the failure of the plaintiff to discover the usury, from inability to do so, is not a sufficient ground to admit the defendant’s oath.

If we were in doubt as to what was the decision, (and for myself, I must, injustice to the learned Judge who made it, confess that I have none,) situated as this case is, it would become our duty to send it back for a re-hearing. The plaintiff in the action below, and who recovered some two thousand dollars, is the par-' ty who brings up this case; consequently, it is he who will mainly suffer from the delay attendant on further litigation. As it is, we must reverse the judgment and remand the case, with instructions that a new trial be awarded, to be conducted in conformity with the views entertained, and herein expressed, by this Court,, as to the proper interpretation of the Act of 1842.