
    James Frye versus Amos Barker et al.
    
    The oath of a plaintiff, pursuant to St. 1783, c. 55, § 2, that usurious interest has not been taken or secured, must be administered in court. So, it seems, of a plaintiff's oath in support of his book accounts.
    Assumpsit upon a promissory note. The defendant having pleaded the statute of usury, (1783, c. 55,) and tendered his oath in support of his pleas, Varnum, at the October term 1822, stated that the plaintiff was willing to take his oath to the contrary, pursuant to the provisions of the second section of the statute ; and it being made to appear that the plaintiff was so infirm as to be unable to come into court, a dedimus potestatem was issued to Isaac R. Howe, a justice of the peace, to administer the oath to him. The plaintiff accordingly made oath before Howe, that usurious interest had not been taken or secured on the note, and the justice certified that due notice of the time and place of administering the oath had been given to the defendants, but that they were not present.
    And now Spaulding, for the defendants,
    referred to the second section of the statute, which provides, that if the 
      debtor, the creditor being alive, “ shall come into court &c., and shall offer to make oath &c., that there is taken, reserved or secured by such bond &c. above the rate of six pounds in the hundred &c., such bond &c. shall be utterly void &c., unless the creditor or creditors will swear that he, she, or they have not &c. taken or received more than after the rate of six pounds in the hundred &c., and that by such bond &c. there is not reserved, secured or taken more ” &c. ; and he contended that the oath ought not to have been administered to the plaintiff out of court. The reason why the statute does not expressly require the plaintiff, as well as the defendant, to come into court, is because the plaintiff is. supposed to be always there. The statute gives no authority to try the cause out of court. The Court derives its power to issue a dedimus to take a deposition, solely from the statutes, and as they are silent about administering an oath out of court to a party, the Court have no such power. In the process of foreign attachment the trustee is a party to the suit; but his answers could not be sworn to out of court, until it was expressly authorized by St. 1817, c. 148, § 2. As the question of usury is here to be determined by a statute mode of trial, and one which is peculiar to this commonwealth, the statute must be .strictly pursued. If the defendant is obliged to come into court, the plaintiff ought to be likewise. That this plaintiff is unable to come, is not owing to any fault of the defendants.
    
      Varnum, for the plaintiff.
    There was evidence that the plaintiff -could not come into court, but at the hazard of his life, and it was in furtherance of justice to permit the oath to be administered to him under a dedimus. The Court therefore will sanction the proceeding, if it is not expressly prohibited. The legislature did not intend to favor this defence, and the words of the statute are, in respect to the defendant, that he shall come into court, but in relation to the plaintiff, merely that he shall swear. The proceeding in this case was authorized by St. 1797, c. 35, § 7, which gives the Court general power to grant a dedimus to have depositions taken in any action pending in the Court; and by St. 
      1782, c. 9, § 2, which provides that the Court may issue all processes necessary to the furtherance of justice.
    
      
       This statute is repealed by St. 1825, c. 143. This last is likewise repealed in regard to its provisions touching the testimony of the parties to the usurious transaction, by St. 1826, c. 27. By this act the parties are not required to “ come into court ” to make oath, but it is enacted, that il it shall be lawful for the debtor, the creditor being alive, to become a witness, and his testimony shall be received as evidence, and the creditor, if he shall offer his testimony, shall be received as a witness, together with any other legal evidence that may be introduced by either party.”
    
   Parker C. J.

observed, in substance, that the Court, were of opinion, that it was not within their authority to have the evidence in this case taken in the manner before mentioned. The Court have no authority to cause depositions to be taken except where such authority is given by statute. It was argued, that it was probably the intention of the legislature to make a difference between the plaintiff and defendant, in saying that the plaintiff shall sioear, and that the defendant shall come into court. But the answer to this is satisfactory, that the plaintiff is presumed to be in court. It may be said that the cause may be delayed a long time, if it is requisite for the plaintiff to come into court ; but on the other hand, the evidence might be taken out of court in a way to meet the defendant’s oath improperly. There might be more danger of false swearing, than where the party is under the influence of the solemnity of a court. We know of no case in which a party has the benefit of his own oath upon a trial, except where the oath is administered in court. Thus in the case of book accounts ; a man might fail to substantiate such charges, in consequence of being unable to come into court to make oath to them, but we do not recollect an instance in which his oath has been taken out of court. Probably the object of the statute in question was, that the oath of the defendant should be met by an oath administered with the same solemnity. The inconvenience arising from the creditor’s ill health may generally be met, by delaying the cause until he gets well ; and if he dies, the oath of the debtor will not be admitted against his executor or administrator.  