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V.

for a horse and a cow. On repayment, the assignment and ALBANY,

August 1803. plote, were, by an agreement executed by both parties, to be void. They were therefore, on the loan being returned, Petringal given up, and the agreement cancelled by tearing off the Brown.' names and seals affixed

of intereft paid, The year limited by the act* for suing for the penalty the borrower

is, after having having elapsed, the action was necessarily, only for the discharged the excess of interest. To prove the usurious contract, and payment, Loomis the borrower was called on the part of the plaintiff: he was objected to by the defendants counsel as incompetent, and his testimony being deemed inadmissible, the defendant obtained a verdict.

For thus excluding the evidence of Loomis, the plaintiff tendered a bill of exceptions, on which the proceedings brought up and the question now was on the competency of Loomis the borrower.

Goold for the plaintiff. The only question for the court to determine is, whether after a man has fairly discharged to its utmost extent, a usurious contract, by payment both of principal and interest he shall not, in an action given by the statute to a third person, be competent to prove the usury? It is to be observed he can have no species of interest; the money is paid ; the debt therefore cannot be avoided, nor is he interested in the event of the suit, for as it is brought by another person, it can be only to the advantage of him, and those for whom he proceeds that it can ensure. This point is settled in the case of Abrams v. Bunn. 4 Burr. 2251. so far as it is an authority in this court. The objection that a witness shall not be permitted to testify any thing which may invalidate an instrument to which he has subscribed his name, has by later decisions been restrained to negotiable paper alone. Baker v. Bent 3. D and E 27. overruling in that respect the judgment of Walton v. Shelly 1 D and E. 296. Therefore the present case is clearly out of any of those reasonings on policy &c. because the instruments were not negotiable, and were satisfied. Indeed how far they ought under any circumstances to prevail may be a question since the determina| AA for preventing ufury, S. 2. passed 8th Feb. 1987. I Rev. L. N. Y. 87.

Brown.

ALBANY,' tion in Jordaine v. Lashbroke and another, 7 D and E 601.* August 1803.

If the question be open in this court, it may be, with great Pettingal

justice contended, that the case of Walton v. Shelly is an encroachment upon the land marks of evidence, but howso ever that may be, the present is a very different question, for it does not go to the invalidating any instrument, the money on them having been paid and the whole coming within the authority of Abrams v. Bunn.

Brees contra. Public policy requires that no person who has signed an instrument shall be, in any cause, admitted as a witness to invalidate it; because no man shall be allowed to testify against his own act. By this very court in an action by the assignees of a certificated bankrupt to recover back the amount of a note given on a usurious consideration, the bankrupt was in July term 1802, held an incompetent witness to prove the usury. He was there clearly disinterested ; his property was assigned to his assignees, and had they recovered, the amount of the verdict would have gone to his creditors. The case in Burrows, applies to transactions where a written security is not given : there the borrower may be a witness, and to the same effect is 2 Hawk. 386. 3 Woodeson 393. But where the contract is by writing, no one whose name is upon it can be received. 'Walton v. Shelly, 1 D & E. 296. 2 Hawk. 387. 3 Woodeson 303. The point therefore upon the authority of Lord Mansfield may be considered to be at rest. The distinctions since taken, are subsequent to the revolution, and therefore not binding here, In them it is also to be observed that the judges are far from being consistent. Buller 3. D. & E. 36. restrains their admissibility to cases of negotiable paper : Lord Kenyon 7. D. & E. is for receive ing in all cases the testimony of witnesses who have no direct interest Ashurst J. however totally dissenting. It is true the reasoning from policy may have been stronger in the case of negotiable paper, but as the law now stands and the assignment of choses in action constantly practised, the principle has of late been much narrowed. “If a written con

• The decision there was that the payee of a bill of exchange may, in an action by an indorsee against the acceptor, prove the bill, « void in its creation.” Qu. whether this diftinction be not perfectly found.

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ct tract(not negotiable)be assigned, the assignee may sue in the ALBANY,

August 1803. « name of the original claimant, and such original claimant « shall not be permitted (at law) to undo his own transfer,

Pettingal

v. " or obstruct the suit of the plaintiff.” 2 Woodeson 388. Brown.

Goold in reply was stopped by the court.

Per curiam. We are unanimous that the judgment of the court below be reversed. This case does not come within any of those cited in favor of the defendant. The paper here is not only satisfied but destroyed. The action is not to annul the security or take away a fair consideration from the defendant. There is no question of interest. For that, to render a witness incompetent it has before been settled, that the interest must be in the event of the suit. By this determination neither public policy, nor the interest of the witness can be affected, he therefore was fully competent.

When a plainJackson, on the demise of Williams and others, tiff refifts a mo

tion as in case against Chamberlin and others.

of nonsuit for

not going to RUSSEL moved for judgment, as in case of nonsuit, for trial if he innot proceeding to trial.

Gifts on his hayThe affidavit stated, that issue ing been unawas joined previous to June, 1802.

ble to try his

cause, and Van Vecten read an affidavit, setting forth that thirty others have

been heard, he five cases were on the calendar, of which only thirteen muft shew that were tried, but, from the length of those, and the crimi- older issues. nal business before the court, the present action could not be heard.

Per curiam. As many causes were tried, it is incumbent on the plaintiff to shew that those issues were older than his. Let the defendant take the effects of his motion, unless the plaintiff stipulate and pay costs.

Lewis, chief justice, absent. David Deas against Paschal N. Smith, President of the Columbian Insurance Company. If a witness has

been in the ISSUE had been joined in this cause, in 1800, and two power of a

plaintiff, he commissions had been sued out; one had been returned, but a long time having elapsed, the defendant gave notice, for the last term, that he would then move for judgment, mony, or be

will not be alas in case of nonsuit. On its being brought on, the plain- lowed to urge

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Vi tiff stipulated te try, at the next sittings, or circuit court, August 1833.

reserving to himself the right of applying to the court, for a Deas

renewal of the stipulation, in case the other commission, Smaith.

then pending, should not be returned. the want of it

Benson now renewed the application for judgment, en an for not going to affidavit, stating, that a few days. after the above stipulation Counter aslida- was entered into, the commission to which it alludes, arwils to those in oppolition to a rived, and that the cause had been duly noticed for the last mrtion, not

e sittings, but had not been brought on. If a suit be call.

Woods contra, read an afüdaxit by the parties, on ac

Wondet ed and pafled, the realons count of whom the plaintiff had effected the policy of insuwhy thould be

rance, on which the present action was brought. The affiby the counsel in the cause.

datit stated the loss, exhibition of proofs, application for If off rs of Conpromise payment, refusal to pay, commencement of suits, suing

out of commissions, and their return. That the interest made to the plaintiff, and was not fully proved by the witnesses examined under the jefused, on a motion for last commission, as they were privy only to the lading of nonfnit, the cuurt will not

what was purchased by one of the witnesses, and covered

by a former policy, but knew nothing of the residue; that be imposed ut femb.

the cause was, nevertheless, noticed for trial, under an idea of proving interest in sundry other articles of the cargo by one York Wilson, who, though a sea-faring man, the deponent believed to be permanently resident in NewYork, as he had lived there for twelve months uninterruptedly, but had lately gone to the East-Indies; the deponent first learnt this circumstance during the time of the last sittings, and his witness was not expected to return before the ensuing winter; that being advised the testimony of Wilson was material, the defendant did not proceed to trial. But that he was advised, and believed, one William Robinson, shortly expected here, was a material witness for him, and that he believed he should be able to obtain Robinson's attendance at the next sittings in New-York, or the circuit thereafter ; that, as the deponent was informed, and believed, the ground of defence insisted on by the defendant, was the want of interest, and that the deponent understood, and believed, the defendant, or some person in his behalf, offered to return the premium, and pay costs, which offer the deponent refused to accept. That the deponent was informed and believed, the cause was one of the

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Smith.

oldest on the calendar, but was, when called in its order, ALBANY,

August 1803 pased, for the accommodation of the defendant; that the depenent would have proceeded to trial, but for a notice to produce certain papers, which he was not prepared to do. These reasons, Woods argued, were sufficient to prevent the object of the motion ; at least, if a nonsuit was ordered, it would be on condition of the defendant's-abiding by his own proposal, and paying what was acknowledged to be due, the premium and costs of suit.

Benson offered a counter affidavit to shew that York Wilson was a slave, and therefore the want of his testimony could never have prevented the cause from being heard, because, had he been present, his evidence could not have been received.

Woods contended, that counter afidavits were inad. missible, because, in the first place, a copy had never been furnished, and, in the next place, the practice was to exclude them, it being incumbent on the party moving, to support his application on his original depositions.

Benson acknowledged the general proposition, but distinguished the present case by this circumstance ; that the counter affidavit was not to support the motion, but to contradict a collateral and independent fact asserted by the plaintiff, and as to not being furnished with a copy, the plaintiff had not given a copy of his.

Woods. Copies of affidavits in exculpation, are never af forded, those to charge or demand, are.

Per curiam. The application is for judgment, as in case of nonsuit : this is opposed by a deposition read by the plaintiff, disclosing facts, to rebut which, the defendant offers a counter affidavit : a question is made whether it can be received. On examining into the point, the court finds the practice to be settled against its reception.* It is expressly decided, in Grove ad. sctm. Campbell, Cole.Ca. Prac- Ante, 13. tice 114, “ that a party can never support his motion by u any affidavits but those on which he originally grounds it."

The motion must therefore depend on the first affidavits. . From that by the plaintiff, among other things which it contains, it appears, that the commission mentioned in his stipulation, as the one then pending, was returned before

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