Brockway v. Copp

3 Paige Ch. 539

Opinion

The Chancellor.

The object of the bill in this case is to obtain a perpetual injunction against the prosecution of a suit at law on a note alleged to be usurious. As it appears upon the face of the bill that the complainants have no means of proving the usury, except by a discovery to be obtained by the answer of the appellant on oath, and there is no offer to pay the amount of the principal of the loan if it should appear that any thing was due, the complainants are not entitled to a discovery as to the usury charged in the bill. And if this was the only ground of equity set up by them, the demurrer would have been well taken. In the case of Livingston v. Harris Livingston, which has just been decided,

Footnotes

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(a) I have had occasion to examine as to the true construction of the eighth section of that title of the revised statutes which regulates the interest of money, (1 R. S. 772,) and have arrived at the conclusion, that the defendant is not bound to make a discovery as to the usury, unless the complainant, in his bill, offers or submits to pay the amount of the principal sum which may be actually due exclusive of interest. It is no answer to the objection in this case, that it is alleged in the bill that the whole has been paid ; because, if the defendant should make a discovery as to the usury, he would subject himself to a forfeiture of the whole debt al« z though he should deny the fact of payment, and it should ultimately appear that the allegation of payment contained in the bill was untrue. If nothing is in fact due, the complainants could not be injured by a conditional offer to pay the money actually loaned, or such part thereof as may be due, if it should ultimately appear that any part thereof remained unpaid.

But there are other allegations in the bill to which the complainants are entitled to an answer, although the defendant is not bound to make a discovery as to the usury. It is alleged that the whole amount of the note has been actually paid; or rather, that the money was put into the hands of Phillips to pay the same, and that the present defendant has made such an arrangement with him as to discharge the complainants, in equity at least, from all further liability. That the suit at law is prosecuted for the benefit of Phillips, and that it is brought in the name of Copp for the purpose of depriving the complainants of the benefit of his testimony to establish those facts. The'complainants also allege that they cannot prove those facts without the testimony of the defendant Copp.

The objection that Phillips was a necessary party in this case cannot be sustained. Where a suit is brought by the assignee of a chose in action in the name of the assignor, as a general rule the assignee must be a party to a bill filed in this court to stay the proceedings at law. That principle, however, is only applicable to those cases where the real party is, by the rules of law, required to. bring his suit in the name of the assignor; and it cannot in justice be extended to a case where the assignee had the right to sue in his own name but has chosen to bring the suit in the name of a third person for the purpose of depriving the defendant of the benefit of his testimony. As the defendant in the suit at law has no right to object, in such a case, that the nominal plaintiff has no interest in the note or bill upon which the suit is brought, he has a right in this court to treat him as the real party where he files a bill here to stay his proceedings at law.

The overruling of the demurrer will not deprive the appellant of his right to resist the discovery as to the usurious nature, of the note; as this is an exception to the general rule that the defendant cannot in his answer object to answer any particular matter charged in the complainant’s bill. Where it appears that any part of the discovery called for by the bill may subject the defendant to a criminal prosecution, or to any loss or injury in the nature of a penalty or forfeiture, an exception will not lie to an answer on the ground that such discovery is not made. (3 Peer Wms. Rep. 238. 1 Meriv. 390. 1 Swanst. 192, 305. 19 Ves. 225. Lube’s Eq. Pl. 324.) And the facts charged in the bill, but which are neither admitted nor denied by the answer, will not upon the hearing be taken as admitted, being put in issue by the formal traverse at the conclusion of the answer. The allegations in the bill will not therefore aid the complainant, unless he is able to establish them by evidence. (Moffatt v. McDowall, 1 McCord’s Ch. R. 434. Young v. Grundy, 6 Cranch, 51. Hopkins v. Stump, 2 Har. & John. 304. Warfield v. Gambrill, 1 Gill. & John. 510.)

The order of the vice chancellor overruling the demurrer must be affirmed, with costs; but without prejudice to the right of the appellant, to insist in his answer that he is not bound to make any discovery as to the consideration of the note mentioned in the complainant’s bill, or as to any other fact which may enable them to enforce a forfeiture of the money loaned.

Ante, p. 528.