
    Thornton v. Gordon &c.
    March, 1844,
    Richmond.
    (Absent Brooke and Stanard J.)
    Answer — Weight as Evidence — Rule.—j.1 is a rule in equity that the answer of a defendant denying the allegations of the bill must be taken as true unless disproved by two witnesses, or by one witness and circumstances in his support: it is not in the power of a plaintiff to make his case an exception to this rule by stating in his bill that he expects to prove its allegations, and disclaiming a discovery from the defendant.
    Same — Same—Usury—Discovery Disclaimed: — Case at Bar. — A bill is filed to inioin the sale of property conveyed to secure a debt alleged to be usurious, and the plaintiff avers that he expects to make full proof of his allegations, and disclaims all benefit of any discovery from the defendant. The injunction is awarded. But afterwards the defendant files an answer denying the allegations of the bill. And the plaintiff relies on the testimony of a single witness, unsustained by any corroborating circumstances. Hnno. the injunction must be dissolved and the bill dismissed.
    On the 29th of March 1823, George W. S. Thornton executed an obligation to Bakil Gordon for the payment of 3000 dollars on the first of January 1828, with interest from the date, to be paid on the first of January 1824, and annually thereafter. At the 720 time of giving *this obligation, Thornton also executed a deed of trust to James W. Ford, conveying a tract of land in trust, with power to sell the same if default should be made in the payment.
    Thornton having died, leaving Jane W. A. Thornton an infant and only child his devisee, she, by her next friend, filed a bill in the superior court of chancery at Freder-icksburg, in March 1831, against Gordon and Ford, alleging that the transaction was usurious. The bill, after setting forth the facts relied on to establish the usury, averred that the complainant expected to be able to make full proof of her allegations, and .disclaimed all benefit of any discovery from the defendants. It prayed, however, that the defendants might answer the premises, and that they might be restrained from proceeding on the deed of trust until its validity should be ascertained by a trial at law, and also for such other and further relief as to the court might seem reasonable. The injunction was awarded.
    The defendants both filed answers under oath. That of Ford contained nothing material. In Gordon’s, all the facts relied on as constituting the transaction usurious were clearly, positively, and explicitly denied.
    On the part of the plaintiff it was attempted to be established, that though the obligation from Thornton to Gordon was for bank stock transferred to the former by the latter, the transaction was really a loan of money, and the particular form of a sale of stock merely adopted as a shift or device to evade the statute against usury. There was, however, but a single witness whose testimony tended to make out the plaintiff’s case.
    The circuit court of Spotsylvania, to which the case was by law transferred, made a decree, on the 30th of June 1832, dissolving the injunction and dismissing the bill with costs.
    From that decree the plaintiff appealed to this court.
    721
    *The cause was elaborately argued by Harrison and C. Johnson for the appellant, and by Stanard, Patton and Heigh for the appellee,
    upon the question whether the facts deposed to constituted usury: but the notice of the argument will be confined to a point which was made after Harrison had opened the case, and was discussed between Johnson and the counsel for the appellee; the decision of the court being upon this alone.
    Johnson. The answer of the defendant is entitled to no more weight than a plea of a defendant at law, — the plea of not guilty to an indictment, or any other plea which merely puts in issue the' matter of charge. The denial of the answer merely countervails the allegation of the bill, and leaves the question of usury in equilibrio. Where the plaintiff calls for the testimony of his adversary upon oath, his answer is made evidence by this exercise of a right on the part of the plaintiflE: otherwise where the plaintiff demands no discovery, no answer upon oath. In the latter case the answer, though upon oath (which it need not be), is no evidence against the plaintiff. The defendant cannot become a witness in his own favour without the requisition and against the will of the plaintiff. In support of these principles, 2 Story’s Fquity, p. 743-5, $ 1528, 1529, and Taylor v. Moore, 2 Rand. 575, are relied on. The bill here not being filed under the third section of our statute, a call for a discovery might have been demurred to. As to any admissions in the answer, they may be used against the defendant precisely as any other confessions of a party may be used against him, wherever or however made.
    Stanard. Upon examination of the case of Marks v. Morris, 2 Munf. 407, the cases reviewed in Martin v. Hindsay’s adm’rs and others, 1 Heigh 499, and the subsequent cases of Fitzhugh v. Gordon, 2 Heigh 626, and Turpin v. Povall &c., 8 Heigh 93, it will be found that the extent to which the decisions in Virginia have gone 722 *is only this, — that although the bill calls for a discovery and the defendant admits the usury, such admission, where the plaintiff can prove the usury otherwise, shall not deprive him of the opportunity of pleading and proving the usury at law. There is no case deciding that equity may interfere on the sole testimony of one witness, where the usury is denied by the answer. Gilliam v. Clay and others, 3 Heigh 590, certainly does not sustain any such proposition; it may, however, be invoked against it.
    Patton. Suppose a plaintiff goes into equity disclaiming all benefit of discovery from the defendant’s answer, and alleging that he is fullhanded with proof; he fails to produce such proof, but the defendant admits the usury: in such a state oi facts, would the court send the question of usury to be tried at law, though admitted by the defendant? or would it take the admission as proof of the usury, and give relief? Surely it would not do so idle a thing as to require the parties to litigate a question which had been settled by the admission of the defendant in his answer; nor so inequitable a thing as to send the parties to a court of law, when the consequence must be the forfeiture of the whole debt, upon proof of the usury by the defendant’s admission in the court of chancery. The usury in such a case would be taken as proved, and relief given as provided for in the third section. Why, then, if the defendant denies the usury, shall his answer not be evidence for him? According to mr. Johnson’s view, though the bill here calls upon the defendant to answer all the allegations thereof, that is no call for a discovery — for an answer upon oath; it is merely a call on him to answer as in case of a legal demand he would be called on to answer the declaration; that is, by pleading to the action,— by putting in issue the plaintiff’s claim, if he designs to contest it. This is a novel idea, wholly unwarranted by the principles of equity proceedings, or by author-723 ity. It is the ^defendant’s privilege to answer, as well as the plaintiff’s privilege to call upon him to do so; the defendant’s right to have his answer weighed as evidence when it makes for him, as well as the plaintiff’s right to avail himself of admissions made by the answer; the defendant’s right to require that his denial of a fact alleged in the bill shall in all cases be equivalent to the testimony of two witnesses, or one witness and pregnant circumstances. By resorting to the court of chancery, by filing his bill, the plaintiff submits himself to encounter the weight of the defendant’s answer; and his disclaimer of benefit from it, his assertion that he is provided with proof aliunde, cannot amount to a retraction of that submission, and deprive the defendant of his rights in the forum of equity.
    Leigh. The proposition of mr. Johnson is wholly new; not to be found decided, or even expressly stated, in any case whatever. If the proposition be correct, the plaintiff in equity may in every case, by disclaiming any discovery from the defendant, entitle himself to equitable relief upon the testimony of a single witness, as well where such relief is to produce a forfeiture or the infliction of a penalty, as in any other case. If it be correct, it must go the length of changing the whole course of chancery proceeding, and the fundamental principles of chancery pleading and evidence, at least as they have been hitherto commonly and almost universally understood.
    Johnson in reply.
    It is the privilege of a plaintiff to resort to the conscience of the defendant, or not to resort to it, as he pleases. If a defendant has a right to answer, and have his answer weighed as evidence, why does not this right extend to all matters pertinent to the issue, instead of being restricted, as it confessedly is, to those matters as to which his answer is specifically called for? In general, an answer upon oath is called for as to all the matters distinctly alleged by the bill, 724 '^because generally the plaintiff expects some benefit from the answer of the defendant, some saving of trouble at least, as to all his allegations. And this is the reason, and a sufficient reason, why the elementary writers speak only of the weight of the answer in general. It is, in general, called for, and the defendant made a witness by the plaintiff as to the whole of the matters charged in the bill. The precise proposition now contended for, it is admitted, is not expressly stated, nor the question directly considered, in any of the elementary works. But the principle is a legitimate consequence from the case of Marks v. Morris, and is supported by the opinions of judges Coalter and Roane in M’Pherrin &c. v. King &c., 1 Rand. 172. The case of Kincheloe v. Kincheloe, 11 Leigh 393, is strongly analogous to this, and the opinions there as to the weight of the answer are applicable here. [Patton. The ground of that decision appears in the late case of Malone’s adm’r and others v. Hobbs and others, 1 Rob. 346, in which it was held that it is sufficient to aver in general terms that a writing admitted to pro-bat is not the will of the decedent, and that without any proof of the averment the court is bound to direct an issue.] There was no question in Malone &c. v. Hobbs &c. as to the weight of the answer. It is not contended that the plaintiff here is entitled to the interposition of the court to give him a trial at law, without proof of his case, upon a mere suggestion of usury; but that he is entitled to have the testimony of his witnesses weighed without prejudice from the defendant’s answer.
    
      
      He had been counsel for the appellee.
    
    
      
      Answer — Weight as Evidence. — Though a plaintiff in his bill may disclaim the benefit of a discovery, he cannot thereby deprive the defendant of the right to answer on oath, and have the advantage of such answer as evidence in his favor so far as it is responsive to the bill. Por this proposition the principal case is cited in Jones v. Abraham, 75 Va. 469; Pant v. Miller, 17 Gratt. 206. The principal case is cited in this connection in Davis v. Demming, 12 W. Va. 276; Powell v. Manson, 22 Gratt. 190; Wise v. Lamb, 9 Gratt. 300, 306. 307. See the principal case cited in Harris v. Harris, 31 Gratt. 19. See foot-notes to Pant v. Miller, 17 Gratt. 187; and Shurlz v. Johnson. 28 Gratt. 657. See monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571. Same — Same.—The principal case is cited in Latham v. Latham, 30 Gratt. 313, for the proposition that the defendant, in every case, may respond in his answer to the charges in the bill; and he Is entitled to the benefit of it. It is thelaw of the forum and all who apply to it for relief must submit to have their causes tried according- to the established mode of procedure. See the principal case cited in Powell v. Manson. 22 Gratt. 190.
    
    
      
      Same — Same — Usury— Discovery Disclaimed.— Tn Davis v. Demming, 12 W. Va. 269, the court, in the course of its discussion of the case of Marks v. Morris, 4 Hen. & Munf. 463. s. c. 2 Muni. 407, said: “In Thornton v. Gordon, 2 Rob. 719, the court unanimously decided, that upon a state ot facts similar to those in Marks v. Morris, and on a bill framed in like manner, though plaintiif alleges that he expects to make full proof ot his allegations of usury and expressly disclaims a discovery from the defendant, the defendant has nevertheless a right to file an answer denying the allegation of usury; and if he files such answer, it is entitled to the full weight of an answer in any other case; and if the usury is proved by one witness only, the inj unction awarded must be dissolved and the bill dismissed.'’
      In Davis v. Demming, 12 W. Va. 274, it was said;
      “In Thornton v. Gordon, 2 Rob. 719, decided in 1849, the court, while not disapproving the case of Marks v. Morris, decided a principle apparently not altogether consistent with that case.” See mono-graphic note on “Usury” appended to Coffman &. Bruffy v. Miller, 26 Gratt. 698.
    
   ALLEN, J.

As the witness relied on by the plaintiff stands alone, unsustained by any corroborating circumstance in the case, the question arises, to what weight is the answer in such circumstances entitled? In Alam v. Jourdan, 1 Vernon 161, one of the earliest cases, the rule which has always been recognized since is laid *down, that where there is but one witness against the answer, the plaintiff cannot have a decree. In Pember v. Mathers, 1 Bro. Ch. R. 52, it is said, that where the defendant in express terms negatives the allegations of the bill, and the evidence is only of one person, there the court will neither make a decree nor send the case to a trial at law. In 2 Madd. Ch. Pract. 443, the rule is stated in these words: “If the defendant positively, plainly and precisely denies an assertion in the bill, and one witness only proves it as positively, clearly and precisely as it is denied, no decree for relief can be made.” But it has been argued, that the rule giving to the answer the weight of evidence arises from the right of the plaintiff to call for a discovery ; that this is the privilege of the plaintiff, and he may waive it: and a passage in Story’s Equity (vol. 2, p. 744,) is relied on to sustain this proposition. The reason on which the rule stands is there stated to be this: “The plaintiff calls upon the defendant to answer an allegation of fact which he makes; and thereby he admits the answer to be evidence of that fact. ’ ’ If this were the sole foundation of the rule, it would seem to follow that if, by calling upon the defendant to answer, the answer when made is admitted to be evidence of the fact, the plaintiff would be concluded by it.

Perhaps the origin of the rule is to be found in the civil law, .which required the evidence of two witnesses as the foundation of a decree. Judge Story, in page 745, refers to the rule of the civil law, and observes, that “these coincidences between the civil law and equity jurisprudence, if they do not demonstrate a common origin of the doctrines on this subject, .serve at least to shew that they have a firm foundation in natural justice.” To whatever source the rule is traced, it is firmly established as one of the fundamental principles of a court of equity. It is the law of the forum, and all who apply to it for relief must submit to have *their causes tried according to its established modes of procedure. It would be as competent for this court to remodel the whole doctrine of a court of equity in regard to pleadings and evidence, as to declare that in this particular case the defendant should be deprived of the benefit of his answer. The cases do not confine this privilege to answers to bills seeking a discovery. In truth the rule has no application to a mere technical hill of discovery, where no relief is prayed, but the discovery is required to be used in some trial at law; for there the plaintiff has his election to use the answer or not. The principle becomes of importance in those cases alone where an issue of fact is to be tried by the court. There are many cases, as of fraud, accident, and the like, where in truth the plaintiff may require no disclosure to make out his case, but equity alone has jurisdiction over the subject. In all such cases, according- to the proposition now contended for, he may deprive the defendant of the advantage of his answer, by disclaiming the benefit of a discovery. Judge Story, in the same section to which reference has been made, states the rule, in conformity with the authorities before cited, in these words: “It is an invariable rule in equity, that where the defendant in express terms negatives the allegations of the bill, and the evidence is only of one person, affirming as a witness what has been so negatived, the court will neither make a decree nor send the case to be tried at law, but will simply dismiss the bill.” The bill must disclose the plaintiff’s case. The defendant, by the law of the court, may respond to these charges in his answer, and is entitled to the benefit of it. In the language of the lord chancellor in Pember v. Mathers, and of the rule as precisely laid down by the elementary writers, and by judge Story in the foregoing passage, where the defendant negatives the allegations of the bill, and the evidence is only of one person, the court will not make a ^decree, nor send the case to a trial at law. The right to negative the allegations of the bill by his answer is his privilege, resulting from his position as defendant called on to answer and make up an issue, and the plaintiff cannot, by waiving a discovery, deprive him of it.

The case of Marks v. Morris, 2 Munf. 407, and the subsequent cases upon the same question, have decided nothing as to this point. The proposition now under consideration was not discussed or considered in any of them. But the case of Gilliam v. Clay & others, 3 Leigh 590, does in effect establish a principle which is decisive of this matter, if the general rule is what I have supposed it to be. That was a bill exhibited by the obligor against the as-signee of a bond and his trustees, to injoin a sale under the trust deed, and praying for general relief, on the ground of usury. The deposition of the obligee and assignor of the bond was taken, to prove the usury between the obligor and assignee, as alleged in the bill. It was argued that an injunction might have been awarded only to stay the sale of the trust subject until the question of usury should be tried at law, and that the assignor could have no interest that a decree to that effect should be rendered for the obligor. The witness was held to be incompetent. Judge Carr, in delivering his opinion, in which the other judges concurred, remarked, that it made no difference as to the competency of the witness, whether it was a bill for final relief or not: that it would be carrying the principle of Marks v. Morris to a fearful extent, if the usury was to be proved in that transaction by evidence which would not be heard on a bill for relief: that before a court of equity should injoin the trustee, and send the assignee to sue at law on his bond, for the express purpose of enabling the obligor to establish usury and thereby get clear of the whole debt, it should be well satisfied that usury had *been practised; and that such conviction must be wrought by competent, disinterested testimony. This case, then, decides that the usury must be proved. The principle of Marks v. Morris was not permitted to control the rules of law as to the competency of the testimony, or to dispense with the necessity of proof. Proof being necessary, it can be offered but in the accustomed mode, upon an issue made up according to the forms of the court; and the weight of the testimony must be determined according to the rules applicable to other cases.

I think, therefore, that in this case, as there is but one witness against the answer, the decree dismissing the bill on that ground must be affirmed.

This renders it unnecessary to consider the other questions so elaborately argued. But for myself I may add, that the testimony does not, in my opinion, make out the usury; and that the case is not as strong as that of Selby v. Morgan, 3 Leigh 577, in which it was held that a transfer of bank stock, under the circumstances there detailed, was a fair sale, and not a device to cover a usurious loan of money.

BALDWIN, J., concurred.

CABEJLL, P., concurred in the opinion so far as relates to the necessity of two-witnesses to disprove the answer; and also concurred in affirming the decree.

Decree affirmed.  