McDowell v. . Maultsby , 62 N.C. 16 ( 1866 )

Battle, J.

This is a bill for a discovery to aid the defence on a plea of usury to ■ a suit at law upon a bond for the payment. of money. The defendant demurred to the bill, and assigned--as causes therefor that the discovey would éxpose him, first, to a forfeiture of the land upon which the suit at law is brought, and secondly, to a penalty of double the amount loaned. In reply, the counsel for the complainants admitting, that the demurrer would be good but for a late act of 1865-’6, ch. 24, which repeals the act -concerning “ Usury ” in the Rev. Code, ch. 114, and takes away both the forfeiture and >tlie penalty, insists that the grounds >of' the demurrer are thereby removed. On the ¡contrary, the counsel for the defendant contends that, supposing that were so, which he does not admit, another late act has made the bill for the discovery unnecessary, by giving the complainants a right to examine the defendant as a witness, upon the trial of the suit at law. See the act of 1865-’6, ch. 43.

We are of opinion that the demurrer was good when it was put in, and ought to have been sustained ; and'that if the late acts referred to by the counsel respectively have any effect upon the case at all, it is to render the discovery sought by the bill unnecessary, because the plaintiffs have a much better remedy by the power given to them of examining the defendant on the trial at law. The demurrer must be sustained, and .the bill dismissed with costs.

Per Curiam.

.Decree accordingly.