Albany, October, 1840.—Burns v. Kempshall. The suit was brought on two promissory notes made by the defendants, payable to E. Pelton or bearer, one for [*361] 1836, and the other for $488, dated 4th $440, dated 22d June, February, 1837. Af ter the plaintiff had proved the making of the notes, the counsel for the defendants opened by stating that the defence which would be relied upon was usury, and that Kempshall, one of the defendants, had paid to Pelton, the payee of the note, various sums of money, amounting to about three per cent per month, for forbearance upon the notes declared upon, and called Pelton, the payee of the note, as a witness in the cause. The wit ness being sworn, the counsel for the defendants asked him what was the consideration of the note of the 22d June, 1836. To which question counsel in behalf of the witness objected: insisting that the witness was not bound to answer, as his doing so might tend to convict him of a misdemeanor, or expose him to a penalty or forfeiture. The judge allowed the objection. The following questions were then put to the witness, all of which, on objection being made, were overruled: Did Kempshall, at the time you took the notes, pay you any money? Was there any agreement between you and the defendants, or either of them, in regard to the consideration or subject matter of the note, at the time or previous to the giving thereof, and if so what was the agreement? Did you at the time of making the note, or at any time before or afterwards, advance to the makers, or to either of them, any money upon the same; and lastly, Did the defendants, or either of them, ever pay you any money for interest upon the note? As to the second note, the witness testified that he received it at about the time of its date, and remained the owner and holder thereof until about the 1st June, 1837. The same questions, in substance, were then put to him in respect to this note, which were put in reference to the first note-all of which were overruled. The following question was then put to him in reference to both notes: "Was there any agreement between you and the defendants, before or at the time when the said notes or either of them was given, with respect to the rate of interest which the defendants, or either of them, were to pay upon the notes, or either of them, or upon any money loaned by you to the defendants, or either of them, which was the consideration of the said notes, or of either of them?"-which question was also overruled. [ *362] *The defendants excepted to the decisions of the judge, and the jury having rendered a verdict for the plaintiff, the defendants now asked for a new trial. C. P. Kirkland, for the defendants, insisted that a penalty being imposed by the statute for taking usury, an indictment for a misdemeanor did not lie at the time when the notes in question were given. Besides, the prohibi Albany, October, 1840.-Burns v. Kempshall. tion of the statute extends only to the taking and receiving of more than the legal rate of interest, and not to the usurious agreement. The penalty, by way of forfeiture of the notes, would not have been incurred by the witness, but by the holder of the notes. It is true, whatever money the witness had received above the legal rate of interest might have been recovered back from him; but such liability is not a penalty. He always was liable to refund in an action for money had and received. The witness also might have relieved himself from all liability by a discovery and return of the money. He therefore ought not to have been excused from answering the questions put to him on the trial. W. Tracy, for the plaintiff. The taking of usury is a misdemeanor both at common law and by statute. The act of 15th May, 1837, merely enlarged the punishment. Being subject to an indictment, the witness was privileged by law from making any answers which might have had a tendency to convict him of the offence. By the Court, CowEN, J. 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, plainly within the cases cited on [ *363 ] *the same tendency, and come the argument. U. States v. 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 case, 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 Albany, October, 1840.-Burns v. Kempshall. penalty, 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 posi tively 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 allowed, and a new trial is therefore denied. [ *364] *HAYDEN and others vs. PALMER and others. In a plea of an insolvent's discharge from imprisonment, it is enough to give jurisdiction to the officer to allege the presenting of the petition and schedule required by the act; it is not necessary to state all the facts giving jurisdiction. Nor is it necessary to aver that the discharge was exhibited to the sheriff when the insolvent is on the limits; the provision of the act in this respect applies only where the insolvent is in close custody. A discharge from imprisonment is good, as well where there are judgments against the insolvent in actions for torts as in actions on contracts. Giving preferences to creditors previous to an assignment under the act, may be urged in opposition to the granting of a discharge; but it is no answer to a plea of discharge, although it appear on the face of the plea. It will not be regarded as fraudulent per se so as to avoid the discharge. DEMURRER to pleas. The plaintiffs declared on a bond for the liberties executed by the defendants on the arrest of one Eli Savage by the sheriff of the county of Oneida by virtue of a ca. sa. at the suit of the plaintiffs for the costs incurred by them in defending against a mandamus sued out by Savage. The plaintiffs averred that the mandamus was sued out in relation to proceedings had by them as judges of the Oneida C. P. in an action of trover in which Savage was a party. The bond was dated 24th March, 1838, and the plaintiffs alleged an escape of Savage on 6th December, 1838. The defendant Palmer pleaded in his sixth plea in bar of a recovery, that on 24th September, 1838, Savage being an insolvent debtor residing within the county of Oneida, presented to a supreme court commissioner residing within the same county a petition pursuant to the provisions of section one, of article five, of title one, of chapter five, of part second Albany, October, 1840.-Hayden v. Palmer. of the revised statutes: said article five being entitled "Of Voluntary Assignments by an Insolvent for the purpose of exonerating his person from imprisonment,” and containing such prayer as in and by said first section is described and required; and that on presenting the petition he delivered therewith a schedule and affidavit conformable in all respects to the provis ions of the second section of the said fifth title, and made such. *proof as by law is required in such case, and in all things com- [*365 ] plied with the requirements of the statutes of this state touching such petition and the proceedings to be had on the presenting thereof. The defendant then alleged that such proceedings were thereupon had, that afterwards, to wit, on 6th December, 1838, the commissioner granted a discharge declaring that the person of Eli Savage should forever thereafter be exempted from imprisonment by reason of any debt due, &c. whereupon after the granting of the discharge, Savage went without the liberties as he lawfully might; concluding with a verification and prayer of judgment. The eighth plea of the defendants was similar to the sixth, except that it set forth the proceedings before the commissioner in hæc verba. In the schedule accompanying the petition, John Savage of New-Hartford was set down as a creditor to the amount of $2438,61, and it was stated that the insolvent had executed to him a deed of all his estate, real and personal, in payment and on account of the indebtedness to John Savage, and as an inducement to him to pay a portion of moneys due to several creditors, whose names and the amounts owing to them respectively were stated. The property transferred was stated to be valued at $1500, subject, however, to two liens amounting together to upwards of $1900. The ninth plea of the defendant was like the sixth, except that after setting forth the granting of the discharge, the defendant averred that after the granting thereof and before the commencement of the suit, to wit, on 7th December, 1838, Savage in due form of law produced the discharge to the sheriff of Oneida, whereupon he went without the limits as he lawfully might. To the sixth and eighth pleas the defendants demurred, assigning as special cause of demurrer that it was not alleged in those pleas that before Savage went at large and escaped, the discharge obtained by him had been exhibited to the sheriff, or that the sheriff had discharged him from imprisonment. There was a separate demurrer to the ninth plea, alleging the same special cause as above, and also that the plea was equivocal and contradictory. *H. P. Hastings, for the plaintiffs, insisted, 1. That the sixth [366] plea was defective in not setting forth the substance of the peti tion, inventory, &c.; and that the averment that the proceedings were in conformity with the statute, presents an issue involving both law and fact, and therefore is bad; 2. That the sixth and eighth pleas were bad in not alVOL. XXIV. 35 Albany, October, 1840.-Hayden v. Palmer. leging that the discharge was presented to the sheriff, or that there was an actual discharge by the sheriff; 3. That the eighth plea was bad also, because on its face it showed that the discharge was obtained in fraud of the statute by giving preferences; and 4. That the article of the statute under which the discharge was obtained does not extend to a demand not founded upon contract, especially to a judgment for costs only, which is expressly excepted in article six of the same act, which is more favorable to the insol vent; and 5. That article five does not extend to an actual imprisonment on a judgment in tort. W. Tracy, contra. By the Court, NELSON, Ch. J. It is objected that the sixth plea is defective in not setting forth the substance of the petition and inventory; that the averment of conformity with the act presents a mixed question of law and fact, and is therefore bad. The case of Service v. Heermance, 1 Johns. R. 91, and several others that might be referred to, shew that it is not necessary, or even proper, to state the facts giving jurisdiction to the officer with any greater particularity. It would lead to useless and tedious prolixity, and the particular facts are therefore dispensed with. Although the 11th section of the act, 2 R. S. 788, directs, that if the insolvent be in prison, he shall be discharged therefrom on producing his discharge, it obviously was intended to apply to the case of close custody, and not where the prisoner is at large upon the limits; and besides, it is simply directory. The exemption is complete on the execution of the discharge, except that when in prison on mesne process the prisoner must endorse his appearance, § 10, 11. [ *367 ] This court has repeatedly held, that a discharge under "this act extends to debts in judgment, though rendered in actions for torts. 4 Cowen, 66. 19 Wendell, 629, 630. and note. The eighth plea, which sets out the proceedings before the commissioner in hæc verba, contains the inventory of debts, &c. and states that the insolvent, at some time previous, had conveyed all his estate, real and personal, to a person who had assumed the payment of numerous debts, which are specified. The value of the security is stated to be nominal, compared to the debts assumed. This doubtless, afforded ground for resisting the discharge before the officer; but cannot be regarded as fraudulent per se, so as to render it void. None of the several grounds taken to invalidate the pleas can be maintained, and the defendants are therefore entitled to judgment. Judgment for the defendants. |