Fox v. Miller

The order for the examination of the plaintiff was properly granted. The defendant by bis affidavit showed that the note was diverted by Brandreth, and that the defense of usury would be relied upon and also that he was ignorant of the details of the *334transaction, and of the facts' necessary to he pleaded in connection with that defense. The plaintiff objected '.to the order on the ground that the. examination would compel the disclosure of facts which would constitute a criminal offense. There is nothing in the record before us to show that the crime of. usury has been committed ; that anything was received by the plaintiff for the loan or forbearance of any money, or that any facts existed which would render the plaintiff liable to criminal prosecution under the statute. The defense of usury could .be based alone upon a corrupt agreement to receive more than six per cent for the loan or forbearance of money, and the proof of such an agreement would be sufficient to establish that defense.

The affidavits upon which the order for examination was granted show that the defendant has no other means of ascertaining the facts necessary, to be pleaded, by him in setting up the defense of usury than by an examination of the plaintiff to elicit those facts which are especially within his knowledge: '.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present—Patterson, Rumsey, Williams, O’Brien and Parker, JJ.

Order reversed, with ten dollars costs and .disbursements, and motion denied, with ten dollars costs.