
    *T. Gaillard vs. V. Le Seigneur. The Same vs. E. Le Roy and N. Le Roy.
    A note given for usurious interest, by the Acts of 1777 and 1831 is void, as well in the hands of an innocent holder, as between the original parties to it; and usury may be given in evidence under the plea of the general issue, in assump-sit, 
       where the whole note is given for usury.
    The husband of a “feme sole trader” is a competent witness to prove usury under the Act of 1777. 
    
    Before O’Neall, J., at Charleston, May Term, 1840.
    These were actions of assumpsit against Y. Le Seigneur, as the endorser, and E. Le Roy, (a feme sole trader,) the maker of a promissory note, and her husband, N. Le Roy.
    The defendants pleaded the general issue, and under it proposed to give in evidence, that the consideration of the note was usurious. Mr. Simons, the plaintiff’s attorney, objected, that since the Act of 1831, (Acts of 1831, p. 48,) which repealed so much of the Act of 1711 as made a contract founded on an usurious contract void, usury could not be given in evidence under the general issue, but must be specially pleaded. There is, I think, much force in this objection, where the defence only goes to show that a part of the contract cannot, under the Act of 1831, be enforced; but where, as in this case, the defence is, that the whole sum secured to be paid by the note is for usurious interest, then the objection cannot apply. For, in such case, the note is without legal consideration, and in law there is no assumpsit on the part of the defendants to pay it. (1 C. P. 470, 471.) Any defence which shows that at the commencement of the action the plaintiff had no cause of action, may, in general, be given in evidence under the general issue of non assumpsit, in the action of assumpsit.
    The defence was, therefore, permitted to be gone into. The husband, IN'. Le Hoy, was offered as a witness, under the usury act of 1777, to prove that the note was usurious. lie was the person who, as the attorney of his wife, made the note, and who negotiated the loan, and borrowed the money. lie was objected to by the plaintiff. I thought, under the words of the act, “ (he borrower or party to such usurious bond,” Ac., lie was a competent witness. He was accordingly sworn, and proved that this note, of which the following *is a copy : — ■ “ Charleston, September 30th, 1839. $600. Sixty days after date, I promise to pay to the order of Y. Le Seigneur, six hundred dollars, value received. (Signed) E. Le Roy, by her attorney, N. Le Roy. (Endorsed) Y. Le Seigneure,” — was given, with another of the same amount and same parties, to Mr. Willis, the money broker of Charleston, for the loan of 82800 for sixty days. Other notes were given for the money borrowed. For the plaintiff, Mr. Willis was sworn, and denied this statement. lie said that 8510 was paid by the plaintiff to him for the note, and he handed it to Mr. Le Roy.
    The cases went to the jury, and they were told if they believed Willis, they ought to find for the plaintiff $540, without interest and costs ; but if they believed Mr. Le Roy, the whole note was usurious, and they ought to find for the defendants.
    They found a verdict in each case for defendants.
    The plaintiff appeals, on the annexed grounds.
    GROUNDS OP APPEAL.
    1. Because usury cannot be given in evidence under the plea of the general issue.
    2. Because, in the latter case, N, Le Roy, the husband of the sole trader, was permitted to testify under Act, of Assembly 1777.
    
      Simons, for the motion,
    cited 5 Dane’s Abr. 332 ; P. L. 286 ; Acts, 1830, p. 27 ; 1 Tread. 144; 1 Selwyn N. P. 53. lie contended that usury could not be given in evidence, under the general issue, but that it must bo specially pleaded. This case was an exception to the rule laid down in Chitty, that, any evidence winch goes to show there is no contract, is admissible. Cited Ilarp. 201 ; Rice Rep. 310; Chev. 177; 1 Clulty, p. 474.
    Second ground — ’That N. Le Roy, the husband, not being the borrower, but the mere agent, was incompetent to give evidence of usury, under the Ret, and at common law was excluded, because a party to the record. He is not the party or borrower contemplated by the Act of 1777. Cited 1 Bail. 479.
    
      Magrath, contra,
    said: A new trial is required for two reasons — first, the alleged incompetoncy of N. Le Roy, the husband;'"' second, the inadmissibility of the defence of usury, under the plea of non assmiyiaU. It is said N. Leroy is incompetent, first, because he is the husband ; second, because he is a party to the record; third, because he is not the ‘‘party or borrower,” contemplated by the Act of 1777.
    Even if he is the husband, he is competent on this issue. It is admitted that according to common law, the husband is not a competent witness for the wife. But is it not as much against common law that a wife, during the life of the husband, can be sued on a contract ? The right here to sue is an exception to the common law principle. It is given by statute, A. A. 1744, sec. 10; see Cooper’s Statutes, 3d vol. p. 620. This, then, is an exception. And they ought not to complain of what is deemed an exception to the common law of evidence, when the plaintiff is only in Court by an exception to the common law of pleading. But the very exception provides for the case. In the section wherein power is given to sue a feme covert as a sole trader, it is declared that “ all proceedings to judgment and execution, by or against such feme covert, being a sole trader, shall be as if such woman was sole and not under coverture.” All proceedings, of course, must mean to include as well such as are in issue by way of evidence, as those in issue by way of pleading. If this is not so, then the provision requiring the husband to be joined “for conformity,” would, jmo tanto, repeal the section itself. The institution of that thing called a sole trader is an anomaly, and of course it cannot be expected that any of the rules, either of pleading or evidence, can apply so well as where there is nothing in principle opposed to the well established liabilities and exemptions of the common law.
    But it is said the husband is a party to the record, and therefore incompetent. It is admitted that the general rule is clear that a party to a suit cannot be a witness. But why? Not because he is a party, but because, being a party, his interest may be more or less, but certain, nevertheless; and this of course disqualifies. But it is the interest which makes him incompetent, and, therefore, if this is removed, the rule should cease. This is the established principle, as in 1 Phillips on Ev. 70, where it is laid down that the mere fact of being a party to the record will not disqualify, if there is no interest or liability. So in the Courts of ^his State, the principle has been affirmed,* State vs. Anthony, (1 McCord, 285,) Vinjard, Executor, vs. Broten, (4 McCord, 24,) and fully sustained in Lenox vs. Ve Haas. (2 Yeates, 37.) Now, here, the witness, it is conceded, is free from all bias which may result from his being a party to the record, because he has no interest. And here it may be observed, that the exclusion is asked for in a case where the Legislature has deemed it proper to shield the defendant; to say not only that the obligation to pay usury is avoided, but also that if even a party to the record and directly interested, he still may testify. Where, then, such a defence is brought to the view of the Court, it is not proper that such construction should be given as, by excluding evidence, to sustain the evil which the Legislature seemed disposed to prevent. Again, it is said he is not “the party or borrower.” Who is, if the witness is not? lie did the business — effected the loan. Madame Le Hoy was away. Who could prove the transaction, if it was not the witness ? It is wasting words to argue in the affirmative, that he is “ the borrower.”
    The second ground is, as to the pleading. The Act of 1831, p. 49, is an amendment of the Act of 1830, p. 29. The first section provides that the bond, contract, &c., shall not be utterly void, as declared in the Act of 1777. The second section provides that the plaintiff shall recover the money actually advanced. The money as money. His cause of action is not the bond or note, but the money paid, and it may be a question whether he can declare, except for money paid. The original contract is not at all revived, but a new assumpsit by law is created. This being the case, non assumpsit is of course the proper plea. Now, in this case, money was paid ; therefore, here, non assumpsit was certainly proper. Chi tty, 470. But suppose the contract to be revived for so much, still non assumpsit is the proper plea. If the note is valid by A. A. 1831, then the defendant can inquire into the consideration under non assumpsit. Here the consideration was the money; evidence of the amount, therefore, is evidence of consideration, and unquestionably proper. Whether, therefore, the old contract is revived, or a new assumpsit raised by the statute, still the evidence is admissible. 1 Tide!. Pr. 591.
    It can be scarcely said that there is any thing like special pleading in assumpsit. The gist of the action is fraud, and is this, therefore, covers every thing by way of defence which rebuts the fraud.
    
      Now, in the evidence of usury, the reply is given to the fraud. It is disproved by showing the amount really received. Usury, therefore, is admissible under non assumpsit; and if it is necessary to make out this position, still more clearly, it may be shown that usury, under our law, cannot be pleaded specially. With us, usury is not an answer to the action, it only answers part of the action. Now, it is one of the first principles in pleading, that the plea must bo an answer to the whole cause of action; no such thing as pleading to a part of a cause of action ; 5 Bac. Abr. 449; K. 3, Tit. Pleading; Shaw vs. Everett, 1 B. & P. 222; 1 Sellon’s Practice, 298.
    
      
      а) See 5 Rich. 54.
    
    
      
       See Philips vs. Calwell et al., 2 Rich.. 2. An.
      
    
    
      
       6 Stat. 409 ; 4 Stat. 364. An.
      
    
   Curia, per

Butler,, J.

The note upon which this action was brought, was given entirely for usurious interest, and both by the Act of 1177 and 1831, was absolutely void, as well in the hands of an innocent holder, as between the original parties to it. Like every other naked contract without consideration, it created no legal obligation. In this point of view, the defence of usury was properly allowed to be given in evidence, under the general issue. But it is contended that the principal witness to prove the usury, was not competent, as he was the husband of the party intended to be bound by the contract. It is true, that at common law, the wife and husband cannot be allowed to testify for each other, on an issue in which they are directly interested. Neither can a party be a witness in his own cause. By the terms of the statute of 1777, the common law is so far altered as to permit a party to a usurious contract to be a witness for himself. The great object of the statute was to reach the usury, by getting rid of all common law disabilities of the witness to the contract. It was said, however, that by the terras of the statute, this privilege must be limited to the party really in interest, and for whose benefit the money was borrowed, and that as the money was borrowed upon the note of E. Le' Roy, the wife, and for her use, she alone could be the witness. This is a technical exception, and if allowed to prevail, would go far to defeat the object of the statute. This might be obviated by the law which requires the husband to be joined for conformity sake, in all actions brought on the contracts of a feme sole *trader. Their identity by a fiction is presupposed ; and the fictions of law may sometimes be resorted to, to preserve'its symmetry and justice. Why, then in mere legal contemplation, should the husband not be regarded as a party to this contract ? He is a party to the record, for conformity, and let the same fictitious conformity extend to the contract, and all objections would be removed. But I do not wish to rest the judgment of the Court on such a ground. The provisions of the statute must not be evaded by a technical construction of it, inconsistent with the clearly expressed purpose and obvious meaning of the Legislature.

The plenitude of the remedy ought not to be impaired, but maintained, by the Courts. The usurer is entitled to no sympathy or protection, in his efforts to gratify his own cupidity, by making victims of the weak and necessitous. E. Le Roy was not present when her husband, under a power which he may have abused, gave this note, and if the right to testify was restricted to her alone, this would be the result, that the party who may have been ignorant of the contract, in its inception, would be the witness contemplated by the statute, whilst the party who really made it, and was cognizant of all the facts, would be excluded. Such cannot be the operation of a statute which it has been said could not be evaded by the wit of man. Crafty contrivance is less to be tolerated than an open attempt to violate law. The second section of the Act of 1771, (4 Stat. at Large, 364,) recites, by way of preamble, that as transactions against the Act “will be generally carried on only when the borrower and lender are present together,” be it enacted, Ac., “that the borrower or party to such usurious bond, specialty, contract or promise, Ac., shall be, and is hereby declared to be, good and sufficient witness in law, to give evidence of such offence against the Act, Ac.” Now, what party was here meant, but the party that was present, as stated in the recital ? The party that, in fact, borrowed the money and made the contract. The object of the Act was to make a witness of the person that was engaged in, and consequently acquainted with, the transaction. Although E. Le Roy was a party to the note, N. Le Roy was the actual borrower, and present when the contract was made. Had he been an indifferent agent, he would have been a good witness, without the statute, for he would not have been interested. The aim *°f the statute was to make witnesses of all the parties interested in the case, who could give such information as would expose and detect the usury. We think the evidence of N. Le Roy was properly received on the trial below. Motion refused.

Gantt, O’Neall, Evans and Earle, JJ., concurred.

Richardson, J.,

dissented, and delivered the following opinion :

The terms of the Act are “ that in all cases,” Ac., “ where any suit or action shall be brought,” Ac., “ touching any usurious bond, specialty, contract, promise or agreement, or taking of usury,” Ac., Ac., “the borrower or party to such usurious bond,” Ac., “shall be, and is hereby declared to be a good and sufficient witness in law, to give evidence,” Ac., P. L. 284. The terms borrower and party to such bond, Ac., arc synonymous. We usually say party to a bond — borrower by parol. Both terms signify the person that received the money on his own credit and responsibility, and has been sued for it. No other person can be the borrower or party sued for the money lent. The proposition of the Act is then plainly this : Whoever is sued at law for money borrowed on usury, is made a competent witness. Now, is N. Le Roy such a person. Is he sued at law touching any usurious bond, Ac., or promise ? Is he borrower or party to any such ? Is he in any way liable for the money he obtained as agent of Emma Le Roy, and for which he gave her own note — not his ? It ought to be enough to answer that N Le Roy has been sued with his wife, the sole trader, merely for conformity ; that it is not pretended he is liable for the money. But I admit that the case is to be decided as if his name did not appear on the record; although the Act does clearly contemplate the parly or borrower as sued at law before he can be a competent witness. These three propositions are, I presume, granted. If not, they arc all proved by the fact that N. Le Roy was the mere agent of the responsible party and borrower. Emma Le Roy, and is sued with her for legal conformity only. If N. Le Roy were not the husband of Emma Le Roy, both now, and at the time of borrowing the money, the error of calling him the borrower

*or party, would strike us at a glance. If he had been only the clerk of Emma Le Roy, and had negotiated the usurious loan for her, none would call him the party or borrower of the money, and he would not have been sued. Now, then, follow out that supposition. As such a clerk to Mrs. Le Iloy, he would not have been sued, and would be a good witness at common law ; but is not made so by the Act of im.

Go a step further, aud suppose the clerk, N. Le Roy, had afterwards married his principal, Emma Le Roy. It would then follow that he could no longer be a witness for or against her, at common law, and the only remaining question would be, can he then, by virtue of the Act, be made the borrower or party to the original loan, on usury, so as to be made a witness under the Act ? The answer would be this : the true character and parties to the transaction, cannot be changed by the act of Mrs. Le Roy and her clerk. “ Quod ab inilio non valet, Iractu temporis non convalescere potest.” She cannot make him the borrower. And if Mrs. Le Roy, the party and borrower, has thus chosen to render her clerk an incompetent witness, it is no more than law to allow her free agency. She took him for better for worse, which includes the legal consequence, that her former clerk can be no longer a witness for or against her, as he might before the marriage have been at common law ; and there is no alchemy in the Act to transmute the character and position he held at the time the money was borrowed. He is still no borrower or party to the loan, and always will be none. But have we not described the precise situation of Mr. LeRoy himself? He was the clerk or other agent of Mrs. LeRoy, and negotiated the loan for her, but was not credited or responsible for the money himself, and therefore not the party and borrower ; yet he was and is the husband of the true party and borrower. But whether he was the clerk .and husband at the time she borrowed the money, or was then clerk and now her husband, can make no difference in the question upon his competency as a witness by virtue of the Act.

The Act makes it depend altogether upon two facts, his being the borrower, and being sued for the money; neither of which appears in the case, but the converse. The test and condition required by the Act, is then wanting, and the case *stands clearly at common law, which forbids the husband being his wife’s witness when on or off the record.

Why is it said in some of the English cases that the husband cannot be the agent of his feme sole trader ? It cannot be that she would not be bound by his acts adopted by herself, though done by him. But because her husband cannot verify or deny her acts, on oath, and he might through their moral union destroy her lawful free agency in sole trading, &c., in which he cannot be a partaker legally. In law'they are incorporated and become as one person ; yet, by law, she may be a sole trader. And to this limited extent, they are as two separate persons, and she a free trader. Our Act, by requiring the husband to be sued with the wife “for conformity only,” illustrates well this principle; upon which the whole argument turns. But if we suffer the form to perplex and alter the doctrine, we shall soon have irresponsible husbands trading under the name of their wives, as well as husbands, clerks, swearing to usury for their wives, in cases where the husband was only agent to the wife, and not the borrower of the money under the Act, nor in any way liable for the loan. But quite a different argument was also urged, though I cannot think it was relied upon, as to the odium of usury. Usury is to be put dowD. Assuredly it is, in whatever shape we discover it, lurking in a contract of borrowing. But we are to come at, point out, and prove “ such offence,” as the Act calls it, by competent and lawful testimony ; and the odious loan must be first made to appear before it can be punished. But in a case of express contract, as a note, or of vested rights, we are not at liberty, as this argument assumes, to conceive that there is something wrong, and therefore extend the strict provision of the Act, in order to destroy the contract. The odium of usury may be just. But the evidence of it, is as of strict law, as belongs to any other case ; and there can be no odium before the charge is so proved. This argument then does not apply to the true question. I cannot, therefore, support the decision that held Mr. Le Roy a competent witness.

See 2 Rich. 2. An. 
      
       4 Stat. 364; 6 Stat. 409. An.
      
     