
    Adam Fulmer, vs. Dennis Hays, the same, vs. Shumberd.
    Where usury is set up as a defence to an action, and the plaintiff is called upon by (lie defendant to swear whether the consideration of the contract was usurious or not, and does «wear that it was not usurious,the defendant can not introduce other witnesses to contradict the plaintiff.
    But the plaintiff may be called upon to prove one fact, and other witnesses to prove other facts, connected with it, all of which, taken together, may establish the usury, which could not be made to appear by any one witness.
    
      Usury may* sometimes, be inferred from a train of circumstances.
    These cases were tried at Lexington, spring term, 1825* before Judge Richardson. They were actions on notes.. The defence set up was usury. The defendant gave the plaintiff notice that he would give evidence, as he was allowed, by the act of 1777, (Pub. Laws, 286. 2 Brev. Dig. 319,J of the fact of usury, unless the plaintiff would, in pursuance of the act, deny, upon oath, the truth of the usury. The plaintiff did come into court, and on oath denied that there was any usury in the case; and the only question which arose was, whether the plaintiff, having denied the fact ofusury the defendant could now introduce other witnesses to prove the usury? The judge held that the defendant could not introduce other witnesses, but that he was precluded by the oath of the plaintiff.
    The defendant now appealed.
   Nott, J.

The court concur in opinion, in this casey with the presiding judge. The defendant is not driven to his own oath, except where the fact cannot be proved by any other witness; and the plaintiff can never be sworn, except when he is called upon by the defendant. If the defendant can establish his defence by the other witnesses, he need not call upon the plaintiff. If he chose to call upon the plaintiff in the first instance, he ought not to be permitted to call other witnesses afterwards, to prove the fact. If his object in calling upon other witnesses be to discredit the plantiff, it is unnecessary; for destroying the credit of the plaintiff does not establish the usury. X do not mean to say other witness© shall never be called after the plaintiff has been sworn; but ■that they shall not be sworn to contradict his oath. Usury may sometimes be inferred from a train of circumstances. The plaintiff may be called upon to prove one fact and other witnesses maybe called upon to prove other facts, connected with it, all of which táken together may establish the usury which could not have been made to appear by any onp witness.

James J. Caldwell, for the motion.

Caldwell and Jones, contra.

The motion must be refused.  