
    Jeremiah Murden ads. H. Clifford.
    Where the defendant in a case of usury offered to swear to the circumstances of usury, and for that purpose made a statement of the facts he would swear to, and the plaintiff makes himself a witness under the act, it is not enough that he denies, generally the truth of the statement made by the defendant, lie must submit to be examined'by the defendant in answer to the facts stated by him.
    The court thought the best praetice would be to requite the defendant to make his statement in writing aiid then to examine the plaintiff in answer to the statement.
    This was an action of assumpsit on a promissory note drawn by the defendant, payable to the plaintiff, tried before the Recorder of Charleston, October Term, 1826. The defence was usury. The defendant appeared in court and offered to swear as a Witness, under the act of assembly to prove the usury. The plaintiff’s counsel objected to his being sworn, and tendered the oath of the plaintiff. , The defendant was then called on to state the facts which, if permitted to be sworn, he would depose to; and he related a series of facts in detail which would have made out, under oath, a case of usury. The plaintiff was then sworn and, in limine, was asked by the court whether or not he denied on oath in open court the truth of what the defendant offered to swear in relation to the usury. The plaintiff replied that he did. Upon which the defendant’s counsel proposed to put some questions, in detail, to the plaintiff, to be confined to the subject matters contained in the statement made by the defendant to which he had offered to make oath. The court considered it incompetent for him to do so, on the ground, that as the plaintiff was not a witness, a particular examination of him as to the matters proffered to be sworn to by the defendant, was inadmissible and the plaintiff had a verdict.
    This was a motion for a new trial.
    
      Clarke for the motion
    Upon all the matters which the defendant stated and offered to be sworn to, the defendant’s- counsel had a right to examine the plaintiff, for by necessary implication under the usury act, the plaintiff when substituted in place of the defendant is a witness, (the defendant being expressly named as a witness in the act,) and upon all, matters which the defendant offered to swear to, the plaintiff might have been particularly examined. It was not in conformity with the spirit, and object of the usury act, in cases where the plaintiff will deny on oath in open court the truth of what the defendant offers to swear against him, that the plaintiff’s oath should be restricted to one broad and general denial of the truth of all that the defendant offers to swear to. The truth was, that the defendant in his examination of the plaintiff: must be confined to, and kept within the statement of facts and all necessary incidents to those facts, which the defendant had offered to swear to, and that within that compass, the defendant’s counsel had a right to examine the plaintiff in detail.
    
      Eckhard, contra.
   Cuma, per

Nott, J.

Whether a contract be usurious or not is frequently a conclusion of law to be drawn from a chain of facts which it belongs exclusively to the court to judge. The method therefore adopted by the recorder in this case to ascertain the facts to which the defendant was willing to depose was proper and correct; and perhaps, if he had been required to put down those facts in writing it would have been better; because then the plaintiff would have been enabled to have seen distinctly the facts which he was required to admit or deny, and the defendant ought to have been permitted to examine the plaintiff in the same detailed manner in answer to those facts. It was the only way by which the truth could be elicited. The plaintiff may not have recollected all the facts stated by the defendant; he may have mistaken some part of his statement and what is equally probable he may have taken the conclusions which he had drawn from facts for the facts themselves to which he was required to answer; a mistake of which of all others a witness is the most liable to commit. I am of opinion that the defendant ought to have been permitted to have gone into a particular examination of the plaintiff in answer to the facts stated by him and that a new trial must therefore be granted.

New Trial Granted„  