
    William Luyten against Johnson Haygood.
    
      Charleston District,
    
    1798.
    Where a <ic-femlant in a usurious cause is offered as a witness to at™sat“j plaintiff is to be sworn to rebut the tes-posed7 toP1i?a f^KianJ’•' Cle~ such cese, the plaintiff» not to be confined to the bare tukncnv lodgment or denial of the usury, but is obliged to answer faithfully all questions relative to the alióle transaction.
    CASE on a note of hand. Defence, usury.
    , . iir, i On the trial before the jury, the defendant, under the se- , , ,. , . ,, , cond clause of the act against usury, was called upon as a witness, to prove the usurious transaction. And after his counsel had stated what was intended to be proved by him, the plaintiff’s counsel then moved, that his client might be . . . sworn under tne proviso mentioned in said clause, to i'ebut the testimony proposed to be given in evidence by the defendant. The proviso is in the following words : “ provided, a that if the person or persons (i. e. the lender or lenders of “ the money) against whom such evidence is offered to be “ given, will deny on oath in open court, the truth of what “ such witness (i. e. the defendant or borrower) offers to “ swear against him, then such witness (the defendant) “ shall not be admitted to be sworn; and if the plaintiff “ shall forswear himself, he shall be subject to the pains and “ penalties of perjury.” Upon the construction of this proviso, it was insisted on the part of the plaintiff, that he should barely be confined to the denial of the single fact of usury, or not usury ; and that he should not be asked, or bound to answer, any other question or questions touching the transaction. To this it was replied, that such a rigid construction of the proviso would be stifling the truth, and suppressing all the means of coming at the ends and de~ signs of the act, in detecting usurious contracts, and preventing the evils it contemplated. The presiding judge, Bay, observed, that this was the first time this point had come before the court, and it appeared to him, that the strict construction of the proviso contended for by the plaintiff’s counsel, would render the act nugatory, for these kind of transactions are generally in secret, and depended upon circumstances, concerning which, men differed widely in their opinions; some forming one conclusion of what constituted usury, and others again, a very different one respecting it; so that the bare affirming or denying the fact of Usury, or not usury, would by no means answer the ends of justice. That the true construction must depend upon facts, and oftentimes a long train of them ; and there was no coining at the real truth, but by a full, investigation of those facts : and the words of the act by no means precluded this examination, for the words are these, if the plaintiff, the lender, will deny on oath, the truth of what the defendant, the borrower, offers to swear against him, he, the defendant, shall not be allowed to be sworn as an evidence. What then is meant by the truth of what the borrower offers to swear, but the truth of all the circumstances of the transaction, and these are what the plaintiff is bound to answer or deny on oath. This, he said, appeared to him to be a fair construction of the proviso in the act. The common law renders both plaintiffs and defendants incompetent witnesses in their own causes, in all cases. This law, however, removes their incompetence in cases of usury. When this incompetence is removed, they then stand upon the footing of competent witnesses on both sides, and may be examined on both sides fully.
    The plaintiff, Mr. Luyten, was then sworn, and so far iraní denying what the defendant, Mr. Haygood, offered to swear, that he corroborated every circumstance; upon which the jury found for the defendant.
    A new trial was moved for, on the ground that the presiding judge had mistaken the law, and that the plaintiff had been compelled to answer questions, which he was not bound by the act to answer.
   When, after argument, the judges were unanimously of opinion, that the construction given to the act was the true one. The opinion of the court on this- point was delivered by Mr. Justice Waties, as follows :

The plaintiff has not been compelled to do more than he Was bound to do, under a reasonable construction of the act, “ The defendant is a competent witness to prove the usury, “ unless the party charged with the offence will deny, on “ oath, the truth of what the defendant offers to swear “ against him.” Now although the plaintiff is only required to deny what the defendant offers to swear to, yet as the defendant may allege what he pleases, the plaintiff may consequently be brought under a general examination ; and why should the plaintiff complain of this ? He may indeed be obliged to disclose more of the truth than he is willing to do ; but if the examination leads him to confess facts, which shew a usurious transaction, he only does justice to the other party, and fulfils the end and design of the law.

This is a reasonable construction of the act; for if the, plaintiff is allowed to prevent the defendant from giving evidence of the usury, by his own oath, it should be on the condition that he will himself state the whole truth eff She transaction.

Rule for new trial discharged.

Present, Burke, Waties and Bay.  