Post v. Boardman , 1 Cl. Ch. 333 ( 1840 )

The Vice Chancellor.

The suit at law on the note could have been defended at law on the ground of usury, by the testimony of the plaintiff therein, who was one of the payees of the note, if the defendants had made the requisite affidavit to entitle them to call upon him as a witness to such fact. The second section of the act of 1837, applied to this case, and gave power to the defendants to call upon the plaintiffs in the suit at law, to testify as to the usury. If this afforded the defendants at law and the complainants in this suit, adequate redress, it is a well settled principle that the cause cannot be tried over again here. It seems that the complainants were surprised by the testimony of Silas Boardman, ■whose testimony was rejected by reason that he was virtually one of the plaintiffs. This undoubtedly was unexpected to the complainants; but unless they were aware that the plaintiff in the suit at law was wholly ignorant of the transaction in relation to the alleged usurious loan, they should as prudent men have called the plaintiff at law as a witness. They would be held excused from so doing, indeed, if the plaintiff at law was entirely ignorant of the usurious loan. This plaintiff was one of the payees of the note—he was one of the firm to whom it was made payable; and might therefore be legally presumed to know something of the circumstances attending the transaction.

Still it is barely possible he might have been ignorant of it; but if so, this should have been alleged in the bill. The bill states, it is true, that the negotiation was made with Silas Boardman ; but in a case of this kind, the bill should go farther, and allege that John Boardman knew nothing of the usurious transaction, and could not have proved it if called upon as a witness under the act of 1837. If the complainants have been negligent in not calling upon the plaintiff at law in the trial at law, when his testimony would have proved their defence at law, I shall not aid them in avoiding the consequences of that negligence by sustaining this bill, even though they were surprised by the declining of Silas Boardman to testify. But if the plaintiff at law could not have proved the usurious transaction if called upon, the surprise induced by the position in which Silas Board-man placed himself, would justify a resort to this court. The defect in the bill is, that it does not allege that John Boardman, if called upon to testify under the act of 1837, could not prove the defence— in other words, the bill renders no sufficient excuse for not taking advantage of the means which the act of 1337 put in the power of the complainants, to have the whole question fully tried at law. If it could have been fully tried there, it cannot be heard here. The facts of the case may however authorise the complainants to add such an allegation to their bill. 1 shall therefore give them an opportunity to amend. But in the mean time the demurrer is allowed ; and the complainants’ bill must be dismissed with costs, unless the .complainants shall, within twenty days, amend their bill, and pay the costs of the demurrer and of the argument thereof.