
    
      Hogshead & als. v. Baylor.
    July Term, 1860,
    Lewisburg.
    1. Debt on Negotiable Note—Maker Incompetent Witness to Prove Usury.—In an action of debt against maker and four endorsers of a negotiable note, they plead jointly nil debet and usury. Before the trial the maker confesses a judgment, and there is final judgment against Mm, and the three prior endorsers release him from all liability to them. * The maker is still liable to the fourth endorser, ■ and is not a competent witness for the defendants to prove usury.
    2. Same—Same,—An agreement by the plaintiff not to take a judgment against the last endorser unless he recovered against all, did not release him so as to render the maker a competent witness when released by the prior endorsers.
    3. Same—Interrogatories.—In an action against the maker and endorsers of a negotiable nóte, they plead jointly nil debet and usury; and file interrogatories to the plaintiff. 1. From whom did you get the note in suit ? 8. If from defendant C., what did you pay him for it 1 He answers to the first: I received the note from C., who, so far as I had any knowledge, was the owner of it. He declines to answer the second question. Defendants move to strike out last part of answer to the first question. Held :
    i. Same—Same.—The only object of the question was to ascertain the character in which 0. endorsed the note; and the answer is therefore, responsive to the question. If that was not the object, the answer was immaterial.
    3. Same—Same,—The pleas being joint, defendants were not entitled to an answer to the second question to reduce the amount of recovery against C.; nor were they entitled to the answer whilst they relied on the defence of usury.
    4. Continuance—Surprise of Counsel,—The fact that counsel believed that a case had been removed from the County to the Circuit court, and was, therefore, taken by surprise, and had not prepared himself by examining the papers *and the law of the case, the original counsel being present and prepared, is not cause for a continuance.
    
      5. Removal of Causes—When Right Lost.—After cause is called for trial in the County court, and continuance refused, a party is not entitled to have it removed to the Circuit court though it has been pending more than twelve months.
    This was an action of debt in the County -court of Augusta, instituted in January, 1857, by George Baylor against Robert A. Hogsett, as maker, and John W. Hogshead, J. M. Mills, D. G. Hogsett, and John Crawford, as endorsers of a negotiable note for one thousand dollars. The defendants joined in the pleas of “nil debet” and usury, on which issues the case was tried.
    When the cause was called for trial, the ■defendants asked for a continuance until the next term, on the ground that one of their counsel, from the belief that it had been removed with the next preceding case of Mills & als. v. The Central Savings Bank, to the Circuit court, both of them being pending in court when the one was removed; and that, therefore, he had made no preparations for the trial, and, from the complicated character of the case, it would be impossible for him to prepare for trial at that term. The counsel stated, further, that he would be compelled to be engaged in some very important business of his own on that day and the next, which could not be deferred, and to force a trial on that day was to compel him to withdraw from the cause. But the court overruled the motion, and directed the trial to proceed : whereupon the said counsel withdrew from the cause. It appeared that the original counsel for the defendants in the cause was in court, and alleged no want of preparation for the trial, though he expressed a desire to have the assistance of the other counsel. And it appeared that the want of preparation- of the counsel was merely that he had not examined the papers, or considered the questions of law involved; *and it did not appear that any witness or other evidence was absent.
    After the motion to continue the cause had been overruled, the counsel for the defendants moved the court to reconsider the motion, and also to remove the cause to the Circuit court, upon the ground that it had been pending in the County court more than twelve months. But the court refused to reconsider the motion to continue, or to remove the cause, and required the defendants to go to trial. And to the opinion of the court overruling the motion to continue the cause, and refusing to remove the cause, the defendants excepted.
    Some time before the term of the court at which the cause was tried, the defendants filed the following interrogatories to the plaintiff: 1. “From whom did you get the note in suit?” 2. “If from the defendant John Crawford, what did you pay him for it?” And to these interrogatories the plaintiff answered to the first. “I got the note in suit from John Crawford, who, so far as I had any knowledge, was the owner of it. ’ ’ As to the second question propounded, I respectively decline to answer. ’ ’ After the motion to continue the cause had been overruled, and before the jury were svyorn, the counsel for the defendants moved the court to strike from the answer of the plaintiff to the first interrogatory the words, ‘ ‘who, so far as I had any knowledge, was the owner of it,” on the ground that they wer-e not called for by or responsive to the interrogatory ; and also moved the court to compel the plaintiff to respond to the second interrogatory. The counsel, in submitting this last motion, avowed their purpose to be to ascertain what the plaintiff had paid Crawford for the note, in order to fix the measure of his recovery against Crawford, and not to force the plaintiff to discover usury in the transaction. This motion was opposed by the counsel *for the plaintiff, and was overruled by the court. And the defendants again excepted.
    The defendants further offered in evidence the deposition of Robert A. Hogsett, the maker of the note sued on; and to show that he was not interested, they produced the record of his confession of judgment in the office, and the final judgment thereon, and also a release to him by all the defendants except Crawford; and they produced a paper executed by the plaintiff, in which he says: “In the case of Baylor v. Rob. A. Hogsett and others, I have propounded interrogatories to the defendant John Crawford, with a view of disproving the evidence of Robert A. Hogsett, tending to show that I procured the note from said Robert A. Hogsett at a greater rate of interest than six per cent. My object is not to fix a liability on John Crawford alone; and if I cannot obtain judgment against him and his preceding endorsers, I, will not take judgment against him alone; he being willing to waive all objections to answering said interrogatories on this condition. To the introduction of the deposition as evidence, the plaintiff, by counsel, objected, on the ground that the witness was interested in the event of the suit: and the court sustained the objection. And the defendants again excepted.
    There was a verdict and judgment in favor of the plaintiff for the debt, interest, damages, and costs: and thereupon the defendants applied to the judge of the Circuit Court of Augusta county for a supersedeas, which was awarded; but, upon the hearing of the case, the court affirmed the judgment. And then the defendants obtained a supersedeas from this court.
    Pultz, for the appellants.
    Hugh W. Sheffey and Baldwin, for the appellee.
    
      
      See generally, monographic note on “Continuances" appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
      See Spengler v. Davy, 15 Gratt. 385 et seq. In Jelenko v. Coleman, 22 W. Va. 227 the court said that the true Interpretation of V. C. 1849, ch. 174, § 1 must he regarded as settled by the case of Spengler v. Davy, 15 Gratt. 385, and Hogshead v. Baylor, 16 Gratt. 103.
    
   AHHUN, P.

This case presents the same question as to *the competency of the maker to be examined as a witness, which was raised in the case of Mills v. The Central Savings Bank. The circumstances being alike in every particular, as to this matter, the cases were argued together. For the reasons assigned in the other case I think the deposition of the witness was properly excluded.

In this case however there are other questions presented which must be considered.

The first exception taken by the defendants in the court below, was to the refusal of the County court to continue the cause when regularly called, in consequences of the surprise of'one of the counsel of said defendants, and the personal inconvenience to which he would be subjected if the trial was then pressed. The original counsel of the defendants was in court and alleged no want of preparation. It was not alleged that any witness or other evidence was absent. And the want of preparation as to one of the counsel was merely that he had not examined the papers or considered the questions of law involved.

The cause assigned furnished no legal grounds for a continuance. It was a question between the counsel and the clients, and addressed itself to the courtesy of the bar, but did not authorize the court to continue against the consent of the other party.

After the motion to continue was overruled, a motion was made to remove the cause to the Circuit court because it had been pending in the County court more than twelve months. The court properly refused to remove the cause at that time, as has been decided in the case of Spengler v. Davy, 15 Gratt. 381.

From the second bill of exceptions it appeared that two interrogatories had been propounded to the plaintiff in pursuance of the Code p. 667, ch. 176, § 38.

The first interrogatory was in these words, “From *whom did you get the note in suit?” To which the plaintiff had responded in the following words—“I got the note in suit from the defendant John Crawford, who, so far as I had any knowledge, was the owner of it.” —The defendants’ counsel moved to strike from the answer, the last clause as not responsive. I think there was no error in overruling this motion. The object of the interrogatory would seem to have been to ascertain not so much from what person the holder obtained the note, for that appeared by the endorsements and was alleged in the declaration, which averred the endorsement by John Crawford the last endorser to the plaintiff, but to ascertain in what character he endorsed, whether as a mere accommodation endorser or agent for the maker or some previous endorser, or as owner for value. In this view the clause was directly responsive to the substantial purport of the interrogatory. If that was not the object of the interrogatory, it does not appear how the clause objected to was material, and if immaterial it does not appear how it could have injured the defendants.

The second interrogatory required the plaintiff to say if he got the note from Crawford, what did he pay him for it.

Although the record does not show that issue was made up upon the plea of usury after the cause was remanded to the County court, yet it appears from the bills of exception and has been conceded in argument here, that the case was tried on both pleas. And as the defendants below got the benefit of the defence, the decisions of the court must be construed with reference to these joint pleas in which ail the defendants below united, and upon which the cause was tried.

The plaintiff having refused to answer the second interrogatory propounded, the defendants moved the court to compel him to answer it, avowing, in submitting their *motion, their purpose to be to ascertain what the plaintiff had paid to Crawford for the note, in order to fix the measure of his recovery against said Crawford; and not to force the plaintiff to discover usury in the transaction. The motion to compel him to answer was overruled and the defendants excepted. In one aspect of this interrogatory a question might arise as to the measure of recovery, whether the amount of the face of the note or the sum actually paid by the holder.

The cases in this State of Whitworth v. Adams, 5 Rand. 333; McNeil & Turner v. Baird, 6 Munf. 316; Wilson v. Lazier, 11 Gratt. 477; would seem to establish that the bona fide holder, the question of usury being out of the case, is entitled to recover from all the parties the amount of the face of the note. So that if the case stood alone upon the plea of nil debet the answer to the interrogatory would have been immaterial, and the defendants were not injured by the refusal to compel the plaintiff to respond to the interrogatory.

■The interrogatory was objectionable on another ground; the discovery sought was of a matter personal to the last endorser. The previous endorsers, there being no question of usury, would be liable for the amount of the face of the note. The action and plea were joint, and a joint judgment must have followed. If the last endorser had desired to raise the question, and it could have availed him, there should have been a separate plea. But there is still another and decisive objection to the motion, an objection made at the time as appears from the bill of exceptions; that is that the said defendants should have withdrawn their defence of usury, before the plaintiff should have been required to answer the interrogatory.

The Code ch. 176, § 38, p. 667, authorizes the court to require answers to interrogatories such as the person to whom they are propounded"would be bound to answer upon a bill of discovery. The bill of discovery ^referred to, means the pure bill of discovery as understood in equity practice; McFarland v. Hunter, 8 Leigh 489; and not a bill for discovery and relief. And the party to a cause is not bound to answer interrogatories which may subject him to a penalty or forfeiture. Under the general provisions of the law, a bill for the discovery of usury could not be maintained even if the plaintiff expressly waived any right to the penalty or forfeiture. For by the Code p. 577, ch. 141, § 11, the penalties and forfeiture go to the commonwealth and informer, were not vested in the plaintiff seeking the discovery and could not be released by him. So no disclosure could be enforced. The 3rd section of the act of 1819 compelled a discovery a* the suit of a borrower; and if it appeared there was usury, obliged the creditor to accept his principal money without any interest, and pay costs; and discharged him from all other penalties of the act. The Code p. 577, ch. 141, $ 7, authorizes a similar bill, compels a discovery, and provides that the lender shall recover where there is more than lawful interest reserved, only his principal money without interest, and pay the costs; but does not like the act of 1819, in express words discharge him from the other penalties of said act. And it may be a question, in consequence of this omission, whether the party may not be compelled to answer notwithstanding the penalties are not released. Such construction would not conform to the spirit of the common law, which as judge Baldwin remarked in Poindexter v. Davis, 6 Gratt. 481, 490, jealous of the liberty of the citizen protects him from being made his own accuser, or forced to give evidence against himself. In conformity with these principles I should be inclined to construe the act in the Code as not having changed the rule; and that where a discovery was made under the 7th section before referred *to, the party would not be subjected thereby to the other penalties of the act.

Be this as it may, the bill authorized by the Code, ch. 141, $ 7, is not a pure bill of discovery, referred to by the law authorizing the propounding of interrogatories; but a bill for discovery and relief, and for relief of a peculiar kind, which can alone be administered in a court of equity, and for which the machinery of a court of law is not adapted. The relief given is to be administered by a court of equity according to its own mode, and the remedy is given by statute only upon bill filed tobe relieved from all but the principal money. The provision being one by which upon the discovery all interest is forfeited, should be strictly construed, and restricted to the mode and the tribunal referred to in the statute. I think therefore as long as the defendants in the court below insisted on their defence of usury, the plaintiff in the action was not bound to answer the interrogatory, and so give evidence which on the plea of usury might invalidate the note.

The paper referred to in the last bill of exceptions, executed by the plaintiff in the court below to John Crawford, was intended to operate as a release to Crawford only upon the contingency that the previous endorsers were discharged. It reserves the right to proceed against him with the previous endorsers; and therefore did not dispense with a release from Crawford to the maker to render him competent.

Unless all the endorsers could be discharged by his testimony invalidating the note, the prior endorsers would be liable to the last endorser. The release could not enure to the benefit of the last endorser until all were so discharged, and until such discharge the maker continued liable for the five per cent, damages on the amount paid by any endorser on a judgment recovered against him.

*1 think there is no error in the judgment to the prejudice of the plaintiffs in error, and that the same should be affirmed, with damages according to law, and costs.

The other judges concurred in the opinion of Allen, P.

Judgment affirmed.  