
    Taylor v. Matchell.
    The plaintiff at law is bound to make discovery, although his answer may subject him to loss of legal interest.
    It was held not to be error for a judge of the circuit court to charge the jury that all the allegations in a bill of discovery which were neither admitted nor denied, should receive such weight as they- might think them entitled to.
    ERROR to the Yazoo circuit court.
    This action was instituted by the plaintiff below against the defendant, on a note of hand for 228 dollars.
    The defendant filed his bill of disco very at law, and alleged that, some time in 1827, he bought of the plaintiff a negro man named Arthur, for which he executed his note for the sum of 650 dollars, payable in January, 1828, with interest.
    The bill also stated that in February, 182S, the defendant gave the plaintiff two notes of hand, one for 432 dollars, and the other 133 dollars, as part payment for the purchase money of said negro: that the old note was cancelled and a new one given for 224 dollars •10 cents, payable one day after date, with 10 per cent, interest. In April, 1829, this last mentioned note was taken up, and another given for 280 dollars, payable the following January. In April, 1S30, defendant paid 100 dollars and gave his note for 189, payable the following January, with 10 per cent, interest, taking up the note for 280 dollars.
    In 1831, in consideration that the defendant would take up the note for 189 dollars and give 25 dollars, plaintiff agreed and took the note of the defendant, including S per cent, interest on the last note, for the sum of 228 dollars, due the following January, which was the foundation of this suit at the April term of said court, 1832.
    The bill alleged usury and want of consideration, and prayed a discovery by the plaintiff. There was a demurrer to the bill on the ground that the defendant had not waived the forfeiture of legal interest, which was oAmrruled by the court.
    The court instructed the jury, that all the allegations of the bill which were not admitted nor denied, should receive such weight, as they might think them entitled to; to which charge the plaintiff’s counsel objected.
    At the October term, 1833, the cause was tried before the Hon. J. F. Trotter, and a verdict found for the defendant. The plaintiff moved for a new trial, which motion was overruled.
    Fitch, for plaintiff in error.
    The note was dated the 22d or 23d of Jan., 1827, for $ 650 00
    Due at twelve months with interest from date 52 00
    Interest from the 23d of January, 1828, to the 20th of February, 1828 4 00
    
      $ 706 00
    The above was the amount due, as appears by the bill of discovery, on the 20th of February, 1828, upon which day the bill alleges that Matchell gave Taylor, in part payment of the note, a note upon Oldham, for 432 00
    And a note upon McGahey, for 133 00
    Which sum of 565 00
    Deduct from the sum. due j 706 dollars, leaves a balance due at that time, of 141 00
    ■ According to the allegations of the bill, instead of the amount of 224 dollars and 10 cents, for which said Matchell gave his note, at one day, bearing 10 per cent, interest, on the 18th day of April, 1829. The bill alleges that the note for 224 dollars and 10 cents, was taken up, and a new note given, for 280 dollars, payable on the first day of January next thereafter. On the 22d of April, 1830, the bill alleges a payment of 100 dollars, which, taken from the 141 dollars, which the bill admits to be correct, leaves a balance of 41 dollars. No' part of which is pretended to have been paid, by the subsequent exchange of notes, or in any other way.
    
      Now if all the allegations of the bill were admitted to be correct, the jury gave a verdict contrary to evidence, in not finding for the plaintiff the sum of 41 dollars, and the court erred in not granting a new trial upon that ground.
    But when we look at the answer we find that it denies that the notes upon Oldham and M’Gahey were taken at their nominal value, as stated by the bill, but insists that said notes were taken at a discount, and that the note then given, of 224 dollars and 10 cents, was the balance due from Matchell to Taylor, upon the taking up of the original note of 650 dollars, and upon the settlement up to that time. I therefore contend that the amount of said note, deducting-the 100 dollars that was paid on the 22d of April, 1830, as alleged by said bill, is the amount which the plaintiff, Taylor, was entitled to recover without including any interest at all. It is not alleged by the bill, nor is it ádmitted by the answer, that any illegal or usurious interest was charged or . agreed to be given previous to the giving of the said note of 224 dollars and 10 cents, and it surely'cannot be contended that any agreement which may subsequently have been made for more than 8 per cent, interest on the exchange of papers, can have relation back and affect the previous contract and settlement which were fairly made.
    The only allegation in the bill by which the contracts and transactions previous, and up to the time of giving the note for 224 dollars and 10 cents, is attempted to be impeached is, that said Taylor wrongfully claimed the said sum of 224 dollars and 10 cents, but the note itself is evidence that said amount was due, and Taylor, in his answer, expressly denies that he received the notes upon Oldham and M’Gahey at their nominal value, but contracted for, and took them at a discount, as it was competent and fair for him 'to do, and that the note for 224 dollars and 10 cents was given upon a settlement up to that time.
   Mr. Chief Justice Shamcet

delivered the opinion of the court.

Two points were made in argument which were relied on by the counsel for the plaintiff in error to reverse the judgment of the circuit court. The first is, that the court erred in overruling the plaintiff’s demurrer to the defendant’s bill of discovery. By the bill of discovery, a usurious contract is set out as being the foimdation of the action, and the plaintiff was called on to answer facts in relation to the contract and the manner of its consummation. In support of the demurrer it is insisted that the party seeking the discovery should have offered to pay the legal interest, and that the plaintiff was not bound to answer because it would subject him to a forfeiture of legal interest. The rule is well settled, that no one is bound to answer so as to subject himself to a forfeiture or penalty, or any thing in the nature of a forfeiture or penalty. Mitford’s Pleadings, 193-4; 4 Johns. Chan. Rep. 432. But there is nothing like a penalty or forfeiture attached to the discovery sought. A penalty and forfeiture are either a punishment or something nearly approaching to it, and in the nature of a punishment, imposed as a consequence of the violation of some law or municipal regulation, but this is a mere matter of fact by which the nature of a contract is to be determined. If the taking of usury was an offence against law, as it is in some countries, the question would be different. In this instance it is a mere question, as to the right to recover a certain amount, and the right of recovery depends upon the nature of the contract. In a note to 1 Vernon’s Reports, 110, most of the cases on this subject are collected and commented on; and by examination it will be found that none of them have gone so far as to relieve a party from answering on the ground that it would subject him to a mere pecuniary loss, which he could not in justice claim, or that the answer would affect his right of action for the recovery of a sum of money in violation of law. In a note to Mitford’s Pleadings, p. 195, n. 2, is a case cited directly in point. A defendant demurred to a bill seeking discovery which would have imposed a liability under the statute of usury, but it appeared that the penal-action was barred by the statute of limitations, and it was therefore held that there was no ground for the demurrer. There is, therefore, nothing in this objection which will justify a reversal of the judgment.

The next objection is that the court permitted the bill of discovery to go to the jury as evidence; but this is equally without foundation. No rule is better settled than that the material allegations in a bill which are neither admitted nor denied by the answer are to be taken as true. The court was requested to give this charge by the defendant’s counsel, and it should have been given but the court in reality did not go so far. The only charge given was that the jury might give such weight to the parts of the bill which were not confessed or denied by the answer as they might think it entitled to. This was putting it on the most favorable ground for the plaintiff. But in reality the material parts of the bill were sufficiently' answered to establish the contract as alleged, and the usury being sufficiently proved, the jury did right in disallowing it.

The only ground well taken' in support of the errors assigned arises on the amount to which the plaintiff was entitled exclusive of the usurious interest. On a calculation of the amount really due exclusive of all interest, there appears to be a balance in favor of the plaintiff of about 41 dollars. This amount he was entitled to as the remainder due on the original agreement, and the jury should have allowed it, and for this reason the court should have granted a new trial.

Judgment reversed and venire de novo awarded.  