
    Fugate & Young Pl’tffs in error v. Carter Def’t in error.
    1. After tin parties had announced to the court that they were ready for trial, and the jury were being called into court, the plaintiffs presented their petition for a chango of vonuo. f3>ld, that the court properly refused, under such circumstances, to award a change of venue. There might bo cases, in, which the party might show good reasons for not applying sooner, and excuse himself for the delay ; hut, none such appeared in this ease.
    2. It is error in the court to give instructions to the jury, that refer t® their determination questions of law.
    Error to Lincoln county.
    
      Williams and Howell for Pl'ff in error.
    
    1st. That the court refused a change of venue.
    
      2nd. That the court erred in over ruling the exceptions of the defendants to the answer of the plaintiff, to the defendants bill of discovery.
    3rd. That the court permitted the plaintiff' to read his answer to the defts. bill of discovery, after he had closed his case, and against the consent of the defendants. 1 Rand. 1S2 and 187.
    4th. That the court misinstructod the jury.
    5th. That the court refused to set aside the finding of the jury and grant a now trial. See Mo. Laws, page G14and 15, title venue, sec. 2 and 3. 3 vol. Mo. Dec. 147, Jim vs. State. Wilson’s adm’r of Owen vs. Woodruff, 5 vol. Me. Dec. 40. 2nd Story’s equity, 745. Fenton vs. Perkins, 3 vol. Mo. Dec. 23.
    
      Wright for Defendant in Error.
    
    1st. Exceptions to answer bad in point of form, as being too general, except the 4th exception, and all the exceptions in point of fact, are bad.
    
      ^n<^’ ^ answer was rea<^ which is denied, by especial reference to that part of the record, which professes to give all the evidence which was read in the cause. II. Code 462 and 463, Fonblanque 705-706-710-711-719. Tuck. Com. p. 431, 432, R. C. 361.
   'Opinion of the Court delivered by

Naplon Judge.

Carter sued plaintiffs in error by petition in debt before the circuit court of Monroe county, on a note of five hundred dollars; the note was as follows: $500. One day after date, we promise to pay to Peter Carter, or order, the just and full sum of five hundred dollars with ten per cent interest from the 25th day of December last until paid. Paris Mo. 2nd March 1839, Reuben Fugate, Wm. Young.

To this defendant plead usury in the consideration; the plea averred that on the 4-th December 1836, a corrupt agreement v/as made between plaintiff and Fugate, for a loan of five hundred dollars to said Fugate, until the 4th of June 1837, at ail interest of twenty per cent per annum, and that Vwo notes were executed by said Fugate, in pursuance thereof, for two hundred/md fifty dollars each, bearing interest on their face, at the i ate of ten per cent per annum and payable six months after date, with James Fugate and Wm, '.Armstrong as securities. PJea further avers, that when said notes became due, to wit, on the 4th day of June 1837, said Reuben Fugate took up said note, and'in lieu thereof executed another note for five hundred dollars, with James Fugate and William Armstrong as securities, payable six months after date, to wit, on 4th December 1837, bearing ten per cent interest on its face, and that the same usurious agreement v/as continued in relation to this second note to pay an additional ten per cent interest. Plea further avers, that afterwards, on 4th December 1837, said defendant took up the last mentioned note, and executed a new note, pay-25th'dav“of December 1838, bearing ten percent interest on its face, with James Fugate and A. Snell as securities, ■ and that the usurious agreement was continued in relation to the payment of the additional ten per cent interest. Defendants further aver that this last mentioned note, after it fell due, and on the 2nd day of March 1839, was again taken up by defendant and in lieu thereof, he executed a new promissory note for five hundred dollars, ’-bearing ten per cent, from the 25th Dec. 1838 with William Young as security, which last mentioned note is the identical note sued on, and that the same agreement was corruptly made and continued ir force for the payment of ten per cent, over and above the ten per cent called for by said note. The plea avers generally, that all the notes were executed for the same con ¡deration and in prosecution of the same corrupt agreement; the plea further avers, that on the 25th December 1858, defendant fully paid all the usurious interest at the rate of 20 per cent per annum, to wit, the sum of $204,64, as interest and usury, from 4th Dec. 1836 to the 25th Dec. 1839. On this plea issue was taken, and the parties went to triad; verdict and judgment were for the plaintiff for the amount of hi í note, with interest as appeared on its face.— From the bill of exceptions, it appears, that on the triad, after the parties liad announced to the court that they were ready for trial snd the jury were being-called into court, the defendant presented his petition and motion for a chango of venue. The petition made out a case of prejudice in the people of the county against defendant Fugate; the motion was- (ivor ruled by the court. It seems also, from the record that prc\ ious to the trial, and in vacation, defendants filed their bill for a discovery, setting forth the transaction nearly similar to the facts averred in the plea, the bill was duly answered by plaintiff, but defendants excepted to the sufficiency of said answer. The answer denies the original loan of five hundred dollars, as charged in the hill, hut admits the note for five hundí ed dollars, which was first given, was lieu of a note of $250 formerly given by the Fugates, amf another note made by James Fugate, wlfich R. Fugate assumed. It admits usury in ail or most of the transactions, and denies that there was usurious agreement in relation to this note sued on. The defendants exceptions to the sufficiency of this answer, were over ruled by the court. The defendants declined reading the plaintiffs answer, on the trial, but relied on other testimony: after this testime ny was finished the plaintiff then read his own answer in evidence, before the jury; this was objected to by the plaintiff in or-ror, and exceptions duly taken. The couit, at thednstancs of plaintiff, instructed the jury as follows: The jury should jSSU0 on the p]ea 0f usury for the plaintiff, unless they believe from the evidence, that there is some contract, promise, or understanding between the plaintiff and the defendants, that more than 10 per cent interest should be paid for the use of the money mentioned in the said note sued on. 2. That it is incumbent on the defendants in this cause to prove every material averment in their plea of usury, before the jury can find the issue for them on that plea. 3. The jury ought to find the issue on the plea of usury, for the plaintiff, unless the defendant proves substantially the contract of usury set out in their plea; and that, although, they may believe from the evidence, that usury has been agreed for, between the parties, if the contracts were different from those set out in the defendants plea, they ought to find the issue ,on that plea for the plaintiff. 4. If the jury believe from the evidence that the consideration of the .note sued on, is $250 loaued by the plaintiff to Reuben Fugate, on the 4th Fee. 1836, and $250 dollars borrowed by James Fugate, of the plaintiff, at the same time, and since then assumed by the said Reuben, they ought to find the issues on the said plea of us ury for the plaintiff. 5. If the jury find from the evidence that the contract set out in the plea, is in any material part different Rom the contract proved in evidence, such variance is fatal to the plea, and the'jury ought to fi..d the issues for the plaintiff 6. If the jury find from the evidence, that the original loaning $250 of the $500, was loaned to James Fugate and not to'Reuben Fugate, that evidence does not support the plea, that the whole sum of $500 was loaned to Reuben Fugate. 7. Unless the defendants have established by evidence substantially the original contract, as set out in their plea, the jury ought to find the issue on the plea for the plaintiff, although they may believe from the evidence that more than lawful interest has been contracted for subsequent to that. These instructions were objected to and exceptions taken, after verdict defendants moved for a new trial, on the ground of mis-instructions and because the verdict was against law evidence, which motion was over ruled.

After th» parties had the court that tri al, and jury c°UTb tho their *or a venue. Held, court'proper-refused, under such circumstan-aw*rd a change ol venue. ofbeí'easc^ln^ "'inch the parties might show good (m. not applying and delay; but j^ar in'thia**" «“u.

The case is brought here by writ of error. The first point which presents itself on the íecord, is the refusal of the court to award a change of venue on the petition of Ruben Fugate. The statute authorises and requires this to bo done, on a state of facts specified, when reasonable no-(ice has been given to the opposite party. In this case the motion came too late; a party might create great vexation to his opponent, if, after the case was called and the sheriff was summoning the the jury, he could call for a change venue. I suppose there might be cases, in which the party might show good reasons lor not applying sooner and cuse himself for this duty, hut no such reasons appear in this record. The defendants ashed it as a mailer of right, and the court properly refused to award a change of venue.

The 10th sec. of the fourth article of the act concerning1/ . . . . practice at law, provides, that “either party to a suit m any court oí record shall be entitled to a discovery from the er party, of all matters material to the issue in such court, in all cases when tho same party would, by the rules equity, he entitled to the same discovery in a court of equi- . " . . . ty, m aid ol sucli suit.” I he 14th section declares, that “the answer of the party to the interrogations shall be 1 J o on tho trial of the suit, in the same mamrner and with like effect, as an answer to a bill in equity for a discovery.” To ascertain the circumstances which will entitle a party to a discovery, and the effect of tho answer to such a bill, we must then resort to the usage of the chancery court, Where a party goes into equity for a discovery only, it is necessary he should aver that lie has no witness by whom he could prove the facts sought to be discovered, and though it is not veiy well settled that the answer of the defen-ant to such a bill cannot be controverted, the inclination of the court.-, so far as I can learn, has been decidedly in favor ©f this principle. It rests on the ground, that when r^liefis sought in addition to discovery, and the only ground of re-leí'is in the discovery sought, when the discovery fails, the ground of relief fails with it, and the party if he proves his CaS° a^un^e’ to 030 ^13 language of the books, proves himself out of court, 2, Tuckers com. 435 Fonblanque 706. Such would be the effect of the answer in the equity court, but i1 is clear, that it must be some what modified when up. plie(l to a similar proceeding which is merely anciilaay t« the proceeding ai bar. in such case, I apprehend, the party seeking a discovery in the equity court has it at his option whither he will avail himself of the proceedings of that court in his trial at law or not, and if he celects to read the answer, and bring in this chancery record, he is then bound by the rule heretofore mentioned, aiul is not at liberty to con-tradictby other testimony, the answer of his opponent. The conscience of the other party has been appealed to, and upon his answer the case must be tried; but he may still decline reading the bill and answer; he may have discovered witnesr.es by whom he can make out his case, and the other party lias not been prejudiced by his appeal to his conscience, until he make} some use of the response to that appeal. If such be the case, when the bill for the discovery and answer have been obtained in another court, our statute declares that in the proceeding in tho same court, the same rules must apply. The defendant Fugate declined reading the answer of Carter, which he had a right to do, and thought proper to rely on other testimony to make out his case. If he had read this answer, in my opinion, the case must have been tried on that alone; but I cannot believe that Carter had any right to read his own answer, which had not been made evidence by the defendant, aud was certainly no part of the record. There is an obvious analogy between this provision in relation to bills of discovery in the circuit court, and the provision in the act regulating proceedings, before justices of the peace, by which either party can get the benefit of his adversaries oath: when this benefit actually obtained, and the party has testified, no other evidence can be adduced; so, where the party canplaining the circuit court, not only files his bill and compells the answer of defendant, but avails himself of suck answer, in trial, ho cannot, and ought not to resort to other testimony to invalidate such answer; but until he does offer to read the answer in evidence, it is as though it was a proceeding in another court, and cannot effect the right of either party. Upon general principles then, the party who has been appealed to, and answered, ought not to be allowed to avail himself of his own ans wer unless' the ether party first makes it testimony. Tho court erred in my opinion, in allowing the plaintiff to read nu own ainwor to the jury, after defendant had declined making any use of it, and rested his case on other testimony. 3. The instructions which the court gave in this case are liable to objection. The first instruction is well enough, but all the others are calculated either to embarrass and confuse, or to mislead the jury. The jury are called upon to determine questions of law, and find out what averments are material and what may be un necessary. For the reasons above given, I am of the opinion ihe judgment should be reversed and the cause remanded

It is error in the court to give, instructions io tho jury, that refer to their determination questions ofLw.

TOMPKINS Judge.

I concur in the opinion that the j udgtnent of the circuit court ought to be reversed, because the court gave erronious instructions to the jury.

M. McGÍRK. Judge

dissenting.

In the above case Ido hot concur.  