Close v. Olney , 1 Denio 319 ( 1845 )

Per Curiam.

The note upon which this suit is brought was made prior to the act of 1837, (Laws 1837, p. 487, 5 6,) by which usury was declared to be indictable. • It is not impor? tant whether it was indictable at common law, as before that act the taking of usury subjected the party to a penalty.

The fair import of what the witness stated was that he had received no usury upon this transaction, since the giving of the note, in 1837. If there had been any doubt of this, the judge should have suffered him to be examined upon pertinent questions, so as to compel him to disclose if the fact was so, the absence of any criminal offence within the period of limitation. Questions could have been put to accomplish this purpose without infringing the witness’ privilege. But, as before remarked we think enough was stated to show that the statute applied.

Where the statute has barred a prosecution for the offence and all suits to enforce the penalty, the court must see that the witness cannot be prejudiced, and in such a case he is not left to judge whether he can safely testify or not, but the court is bound to pronounce against his claim to exemption.

We think that the judge should have distinctly informed the witness what the ingredients of usury as a penal or criminal offence, were; that it required not only an agreement for usury, but the actual receipt of an usurious premiurn, and that the existence of the agreement, if no usury was paid, though it might avoid the contract cannot subject him to criminal presentment or to a penalty, or afford him any honest plea for declining to testify. If after such distinct statement he should still declare that he could not safely testify, he would be privileged. There is reason to doubt whether this was as cl early explained to the witness as it should have been.

New trial granted,