
    Connor against Bradey.
    In an action on a promissory note, a witness, who is the real plaintiff in interest, may be called and examined by the defendants.
    A witness how far bound to answer a question which may subject him to a civil injury.
    This was an action on a promissory note, made by the defendant in favor of Winship, and by him indorsed to the plaintiff.
    
      f The defence, set up by the defendant, was that the consideration of the note was usurious. To prove the usury, the defendant called Dr. Lord as a witness. The plaintiff’s counsel objected to his being sworn, and alleged that he was the real plaintiff in the suit. The defendant’s counsel contended that this interest would operate in favor of the plaintiff and against the defendant, and that, therefore, the defendant had a right to waive the objection.
    The court allowed the witness to be sworn.
    The defendant then attempted to prove the usury by the, witness. He stated, however, that he had been interested^ and concerned in the contract from the beginning, and if there was any usury in the transaction, his answers would criminate himself.
    The defendant’s counsel contended that a witness is bound to answer a question, although such answer may subject him to a civil injury, and is only privileged where the answer may subject him' to a criminal prosecution; and, in support of this position, he relied upon the case of Lord Melville in the House of Lords.
   Van Ness, J.

I understand the .rule alluded to, (which was brought under consideration on Lord Melville’s witness indemnity bill,) differently from the defendant’s counsel. The rule, however, does not govern this case. Here, the witness having declared that he was interested and concerned in the contract from the beginning, he has a right to decline answering all questions relating to the alleged usury.

Griffin, for the plaintiff.

Emmet, for the defendant. 
      
       The witness in this case, was protected from answering, relative to the usury charged, on the ground that his answers might subject him to a criminal prosecution. At the common law, usury is an indictable offence. The only doubt, in the books on this head, seems to be whether all usury was indictable, or only Jewish usury. Ord. p. 3; 2 Chitty Crim. Law, 548. Hale, chief baron, in an anonymous case, (Hard. 420,) says: “Jewish usury was prohibited at common law, being forty pound per cent, and more, but no other.” And Lee, C. J., (in Palm. 292,) says, that the usury condemned at the common law, was the common trade of biting usury, such' as was that of the Jews. Mr. Chitty, in commenting on this subject, (2 Chitty Crim. Law, p. 549,) observes, that a very eminent barrister, in A. D. 1814, advised that in a case of clear and palpable usury, a party may be indicted at common law. Our statute, prohibiting usury, differs essentially, in its prohibitory provisions,, from the English statutes. By our statutes, the excess only can be recovered back, and there is no penalty expressly imposed on the party taking usury. The English statutes, however, over and above the provisions invalidating the contract, which are copied into our statutes, contain very heavy .forfeitures and penalties, so that the party, to the usury, could never be compelled to testily, according to the EnglisETaw; but, by our law, he can be protected only on the ground of his liability to an indictment at common law, as above stated.
      In the case of Lord Melville’s witness indemnity bill, the question, stated to the judges for their opinion, was, “whether witnesses were bound to answer questions, if their answers subjected them to civil process.” 1 Am. Law Journal, 223.
      Mr. Baron Graham, Mr. Justice Chambre, Mr. Justice Le Blanc, Mr. Justice Lawrence, Mr. Justice Heath, the Lord Chief Baron, the Lord Chancellor and Lord Ellenborough, were decidedly of opinion, that the general rule of law was, that a witnesss was bound to answer every question, touching the issue to be tried, with the exception only of such questions as would expose him to a criminal prosecution, or to a penalty or forfeiture. Mr. Justice Grose, Mr. Justice Booke, Mr. Baron Thompson and Sir James Mansfield, Chief Justice of the Common Pleas, were of a different opinion, and thought that no third person had a right to extort from a witness, what debts he owed, or what slander he might have uttered, which would expose him to actions: and, to show the possible hardship of the rule, Mr. Justice Booke mentioned the case of Lord Keith, who, by an answer he gave in an insurance case where he was called as a witness, subjected himself to an action in which ten thousand pounds damages were given against him. The Lord Chancellor, in the progress of this deliberation, observed, that he considered the practice so far precise, clear and perspicuous; that it was necessary no new law should be promulgated, otherwise than in the form of a declaratory law, by which it should be announced what had been the law, what was the law, and what ought to be the law of the land, as to this important particular. Such a law seems, afterwards, to have been passed, (46 Geo. 3d c. 37,) by which it is declared that a witness cannot, by law, refuse to answer a question relevant to the matter in issue, (the answer of which has no tendency to accuse himself; or to expose him to penalty or forfeiture of any nature whatsoever,) on the ground that the answering of such question may establish, or tend to establish, that he owes a debt, or is otherwise subject to a civil suit. Phillips on Evidence, 203.
      Statutes have been passed in the state of Hew York, since the preceeding remarks were written, by which all protection is taken from the person receiving usury. He is now compelled to testify. To bring this coercion, however, within the rule of the common law, nemo trnetw seipsvm accusare, it is expressly declared, in the same statute, that the testimony so given shall not be used against such person before any grand jury, or on the trial of any indictment against him. 2 R. S. 58, 3d ed. This seems quite just on its face, but whether it can be entirely so, practically, is not quite so certain. If the rule of the common law is just and right, it would seem the sounder policy to create no exceptions to it by statutes.
     