Burns v. Kempshall

By the Court,

The defendants’ counsel started with the avowed purpose of proving not only that the notes were made on an usurious consideration, but that usurious interest had been received upon them. As to the bearing of the questions put to the payee, who was then called, there can be no doubt that any one of them might, if answered, have furnished a link in the chain of proof that usurious interest had actually been paid. An agreement to receive it might serve to qualify the subsequent receipt of the money, while the latter might be the consummation of the previous corrupt agreement. The questions had all, in effect, *the same tendency, and come plainly within the cases cited on [ *363 ] the argument. U. States v. Burr, 1 vol. of Rob. Report of that case, 207, 208, 242 to 245. The People v. Mather, 4 Wendell, 236, 237, 252 to 254. The rule laid down by Marshall, C. J. in the first, and Marcy, J. in the second ease, is, that where the court perceive the answer may tend to criminate the witness, he should be excused from answering. Several cases illustrating this rule are collected in Cowen & Hill’s Notes to 1 Phil. Ev. 736 to 738, id. 734, 5. The witness called had been prima facie an original party to the note, on whom the imputation of usury would necessarily fall. Thus related, it was sought to make him state certain facts which in their very nature and according to the statement of the defendants themselves, tended to make out an usurious agreement. That, by the next step in the proof, might have been connected with his alleged receipt of the money.

Then, if the offence of receiving usurious interest would, in the state of the law at the time when' these notes were given subject the witness to a *363penalty, though merely pecuniary, his privilege is not denied. It is clear under the statute of 1837, but that does not apply. By the law as it stood when these notes were executed, the receipt of usurious' interest was positively forbidden, by 1 R. S. 760, 2d ed. § 2; and when received, might be recovered back by the payor within one year; and on his default to sue within that time, by an overseer or superintendent of the poor. 1 R. S. 760, 2d ed. § 3, 4. This was either a penalty or it was not. If not, then no penalty was specifically prescribed by the statute, and the offence came within the general provision of the revised statutes, that where no penalty is imposed by a statute which prohibits the doing of an act, it shall be deemed a misdemeanor. 2 R. S. 582, 2d ed. § 45.

It follows that the witness’ privilege was properly allowe d, and a new trial is therefore denied.