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for i base and a cow. On repayment* the assignment and ALBANY, note, wese, by an agreement executed by both parties, to

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he void. They were therefore* on the loan being returned, gntft up, and the agreement cancelled by tearing off the names and seals affixed; ,

..ii t r\»r • r i ofintereft paid,

The year limited by the act-"' nor suing for the penalty the borrower having ekpsed, the action was necessarily, only for the diYcksrged the excess of interest- To prove the usurious contract, and JoJj !£jtnc*f,. 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.

GooW 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. -frBurr. 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 S. 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 die determinat AA for presenting ufurr, S. a. piffed 8th Feb. 1787. 1 Rev. L. N. Y. 87.

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ALBANY, Aujuft 1803.

Pettlngal

v. Brown.

tion in Jordaine v. Lashbroke and another, 7 D and E 601.* If the question be open in this court, it may be, with great justice contended, that the case of Walton v. Shelly is an encroachment upon the land marks of evidence, but howsoever 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 die 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 aft. 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 receiving in all cases the testimony of witnesses who have no direft 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 JeciKon there was that the payee of a bill of exchange may, in in action by an indorfee agaiuft the acceptor, prove the bill, " void in its creation.' Qu. whether thi» diUinclion be not perfectly louud.

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** traft(not negotiable)be assigned, theassignee may sue in the « nam of the original claimant, and such original claimant « shall not be permitted (at law) to undo his own transfer, - or obstruct the suit of the plaintiff." 2 Woodeson 388.

Goold in reply was stopped by the court.

Pei 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 i» 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 die event of the suit. By this determination neither public policy, nor the interest of the witness can be affected, he therefore was fully competent.

Jackson, on the demise of Williams and others, against Chamberlin and others.

RUSSEL moved for judgment, as in case of nonsuit, for not proceeding to trial. The affidavit stated, that issue was joined previous to June, 1802.

Van Ve&en read an affidavit, setting forth that thirtyfive cases were on the calendar, of which only thirteen were tried, but, from the length of those, and the criminal 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 effecls 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. ISSUE had been joined in this cause, in 1800, and two 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, as in case of nonsuit. On its being brought on, the plain

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tr/F stipulated to- try, at die nest sittings, or circuit com*, reserving to himself the right of applying to the court, for » renewalt of the stripulodon, in case the other commission, then pending,, should not be returned.

Benson now niwi il llm application for judgment, on an affidavit, stating, that a few days, after die above stipulation \ras entered into, die commission to which it alludes, arrived, and that the cause had been, duly noticed for the last sittings, but had not beenbrought on.

Woods contra, read an affidavit by die parties, on account of whom the plaintiff had effe&ed the policy of insurance, on which die present action was brought. The affidavit stared the loss, exhibition of proofs, application for payment, refusal to, pay, commencement of suits, suing out of commissions, and their return. That the interest was not fully proved by the witnesses examined under the last commission, as they were privy only to die lading of what was purchased by one of the witnesses, and covered by a former policy, but knew nothing of the residue *, that 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 5 the deponent first learnt this circumstance during the time of die last sittings, and his witness was not expected to return before the ensuing winter j diat being advised the testimony of Wilson was material, the defendant did not proceed to trial. But diat 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 Ro

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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 die ©Weston the calendar, but was, when called in its order-, At.ianv,

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pasasl, for the accommodation .of the defendant^ that die deponent would have proceeded to trial, but for a notice to produce certain .papers, which he was not prepared to do. Tbeee reasons, Woods argued, were sufficient to prevent ihe object of the motion; at least, if a nonsuit was -ordered, k would be «» condition of t)he -defendant's abiding by hit own proposal, and paying what was acknowledged to be due, the premhina and costs of suit.

Bensoaadered a counter a (Edavit to shew that York Wilton was 2 slave, and therefore the want of his testimony could »e*er have prevented the cause from being heard, because, had he been present, bis evidence could not have been received.

Wogd-s contended, that counter affidavits were inadnusstW.e, becaase, in the first place, a copy had never been furnished, and, in the next place, the praftice was to exchide diem, it being incumbent on the party moving, to support his application on his original depositions.

8ei*son acknowledged the general proposition, but distingnfibodthe present case by this circumstance; that the counter a&davit was not to support the motion, but to contradict a collateral and iixiependent fa£k asserted by the plaintiff; and as to not being furnished with a copy, the plaintiff had not given a copy of his.

Wbodi. Copies of affidavits in exculpation, are never afforded, those to charge or demand, are.

Per curiam. The application is for judgment, as incase of nonsuit: this is opposed by a depo ition read by the plaintiff, disclosing facb, 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. Practice 114, "that a party can never support his motion by u any affidavits but those on which he originally grounds it.*

The motion mu=t therefore depend on the first affidavit-. . Yusm'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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