majority">COLLIER, C. J.

1. The first point made by the plaintiff’s counsel, is not psesented by the record. The objection to the defendant’s testimony does not appear to have been, that the plaintiff had not been famished with a written statement of the facts which he proposed to narrate; but it was to his competency generally.

2. The fourth section of the act of 1819, to regulate the rate of interest, declares, that any note or bond given on account of any usurious contract, shall be void; and that “the obligor or obligors,” are made “competent witnesses to prove the usurious consideration of any such bond or bonds, note or notes.” By the fifth sec-tionof the same statute, it is enacted that, “when any suit or action may be brought in any court of record in this State, touching or concerning any usurious bond, specialty, promise or agreement, the borrower or party to such usurious bond, specialty contract, promise, or agreement, from whom such higher rate of interest is, or shall be taken, shall be a good and sufficient witness to give evidence of such offence.” [Clay’s Dig. 590.]

The admission of a party to a suit, or of one who is directly interested in its determination, to give evidence in his own favor, is at variance with the common law; and a statute which introduces, such a rule, should not be extended by construction beyond what was obviously intended by the legislature. Here it is said that “the borrower, or party to such usurious bond, &o. from whom such higher rate of interest is or shall be taken,” shall be a witness, dec. It is clear that none other than he who is a party to the transaction by which usury is taken or reserved, is made competent to prove the fact. If a contract would only be usurious in the case of a direct loan of money, or other thing, then the term “borrower,” would have been sufficiently expressive of the meaning of the legislature; but the statute is one of very extensive operation, and applies to all contracts, agreements, &c. by which a higher rate of interest than the law prescribes, is reserved. Hence it was thought necessary, in order to make the law harmonious and consistent in its provisions, and express with clearness, the legislative will, to declare, not only that one who was in ordinary parlance a borrower, but also a party from whom a usurious rate of interest should bo reserved, was competent to prove the fact by his own evidence. This provision in the statute was intended to discountenance usury, and to afford a facility *756in proving it without a resort to equity to obtain a discovery, where other proof-was not attainable. The reason of the enactment does not apply where the borrower, or party to the unlawful transaction is not sued; for if a surety, indorser, or other person in privity with the original party, is the defendant, the original party is competent, and may be examined as a witness to prove the usury. But it is needless to reason upon this point— the terms of the act are too explicit to require illustration.

3. It is unnecessary to consider the extent to which the “borrower or party, &c.” may be permitted to give evidence under the act in question; but we would remark that he is only made competent to testify to the illegality of the transaction for usury. What particular facts constitute the offence, must depend more or less upon the case itself, and cannot be well defined within limits of general application.

4. It is entirely competent for a judge to instruct the jury, that if they believe the testimony adduced, they should find a verdict for the one party or the other. Such a charge does not trench upon the appropriate office of a jury. It does not assume the truth of the evidence; that is an inquiry expressly referred to their determination, and the court only declares w’hat is the law upon a supposed state of facts. This is what is done upon a demurrer to evidence, and cannot operate more prejudicially to the plaintiff, than if the defendant had demurred.

As the evidence of the defendant in the present case was inadmissible, it is unnecessary to consider its effect, upon the hypothesis that it was regularly before the jury. The judgment must be reversed, and the cause remanded,

Citation profile

How this case has been treated — in progress