
    Ramsay and Ramsay vs. Harris.
    The payee of a note given without consideration to one who has passed it with a guarantee of payment, is an incompetent witness fosr the maker to prove the note usurious in its inception.
    
      I. A. Verplanck, for complainants.
    
      C. Danforth, for defendant.
   The Vice Chancellor.

This suit should never have come before this court, or if here, it would have been dismissed if there was a demurrer to the bill, or the defendant had set up in his answer that the complainants had an adequate remedy at law. The complainants by their bill show that they lent their note to Dr. Maxson for his accommodation, who passed it to the defendant at an usurious rate of discount—that it was passed by the payee to the defendant at such usurious interest—(hat the defendant commenced a suit at law against the complainants upon such note—but the complainants do not state any special circumstances to authorise the with-. drawal of the consideration of the matter of this suit from the jurisdiction of a court of law. They do not state that a discovery is wanted—that the testimony of any witnesses is wanted, who cannot be examined at law. It does not appear even from the bill itself, but what the complainants had a complete defence at law, if they had any any where. They could have called upon the payee as a witness at law, if they could in this court; and they could have called upon the plaintiff at law and the defendant in this court, as . i n t -r i i i a witness to prove the usury alleged, it they had pleaded properly. Their defence at law was therefore complete, under the decision in Perrinevs. Stryker, 7 Paige, 598. But the defendant does not choose to avail himself of this defence by demurrer, or by setting it up in his answer. He has gone to the proofs, and the cause is brought to a hearing upon pleadings and proofs. Under such a state of facts the defendant cannot avail himself of the point made by him, that the complainants have an adequate remedy at law. In Grandin vs. Le Roy, 2 Paige, 509, the Chancellor says: “ After a defendant has “ put in an answer to a bill in Chancery, submitting “ himself to the jurisdiction of the court without objection, it is too late to insist that the complainant “ has a perfect remedy át law, unless this court is *' wholly incompetent to grant the relief sought by “ the bill.” This doctrine is fully sustained by the opinion of the Chancellor when circuit judge, reported in 4 Cowen, 727. This court is not wholly incompetent to gra nt relief in this case, and is not incompetent to grant the relief sought by the bill. This objection of the defendant, therefore, cannot be sustained; and the court will be compelled to look into the merits of the case. The bill calls for an answer from the defendant under oath. Such answer is put in. The only evidence offered by the complainants, in support of their bill, is the testimony of Dr. Maxson, the payee of the note., A motion is made to suppress the testimony of this witness. To this motion it is objected that the objection in its full length, was not taken before the examiner. I find, however, that it was objected to before the exatni^ecause was payee of the note, and because he was interested. His being payee of the note was perhaps-no objection. His cross examination shows the nature of his interest; and I am of opinion that the objection was sufficiently taken before the examiner, to enable the defendant to urge it here. It seems to me, also, that the witness was interested in procuring a decree in favor of thé complainants. It seems to be conceded that the witness guarantied the note when he passed it to the defendant. This passing constituted the usury, if any; and if the complainants succeed in this suit, it does not follow that the witness is liable to the defendant upon his guarantee. This case is different from that of Miller vs. McCan, 7 Paige, 451. That case was one of postponement of payment without the consent of the surety. The testimony of the principal in that case, only went to the. liability of the surety. His liability to either one party or the other, was beyond a question. He was liable to one party or the other. His interest was balanced. In this case, the testimony goes to the validity of the instrument itself; and the witness seems to be interested for the complainants, to destroy the validity of the instrument. His testimony must therefore be suppressed. This disposes of the xvhole case. The answer of the defendant under oath, and the testimony of the defendant’s witnesses, will not sustain the complainant’s case, and his bill must be dismissed, with costs to be taxed.  