[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 85 There is another ground, besides those mentioned by the Supreme Court, on which Chapman was privileged from answering the questions put to him. It was one branch of the defence that the witness, being the teller of the bank, discounted the note after it had, with his knowledge, been offered for discount to the directors, and been refused by them. If this fact could be established, Chapman would not only forfeit twice the amount of the loan which he made, (1 R.S. 595, § 28,) but he would forfeit the debt itself. As the discounting of the note was expressly forbidden by the statute, there can be no doubt that the security would be void. A witness must speak, though the answer may establish that he owes a debt, or is otherwise subject to a civil suit; but he is not bound to speak where the answer may subject him to a forfeiture, or any thing in the nature of a forfeiture of his estate or interest. (2 R.S. 405, § 71; 1Phil. ev. 278; Mitf. Plead. 197, ed. of' 33; Livingston vs. Tompkins, 4 John. Chan. 432; Livingston vs. Harris, 3Paige 533, and 11 Wendell 329, S.C. in error.) As the answer of the witness might tend to establish facts which would work a forfeiture of the debt, he was not obliged to testify. This ground is of itself sufficient to establish the privilege of the witness; and as to this, the statute of limitations has no application.
The grounds on which the privilege of the witness was put by the Supreme Court are equally conclusive, unless a prosecution under the usury law, and a suit under the bank law for twice the amount of the loan, had been barred by the statute of limitations; and there is nothing in the case to show that *Page 87 a prosecution, or a suit, or both of them, had not been commenced in due time. In all the cases where it has been held that the running of the statute took away the privilege of the witness, it expressly appeared, not only that the time for sueing or prosecuting had elapsed, but that no suit or prosecution had been commenced, or if one had been commenced, that it had been discontinued. Here the statute was not even mentioned on the trial. It may not have been necessary for the defendant to prove the negative fact that no suit or prosecution had been commenced. But if he intended to rely on the statute, he was at least bound to say so; and then the witness might have answered, that proceedings against him had already been commenced.
The witness claimed his privilege, and there was a primafacie case for allowing it. If there was any answer to that case, the defendant should have mentioned it, for the double purpose of allowing the truth of the supposed answer to be examined at the proper time, and of dealing fairly with his adversary and the Circuit Judge. A party is not at liberty to start a question, on a motion for a new trial, or in a Court of Review, which, had it been mentioned on the trial, might have received a satisfactory answer. This is a principle of every-day application, and there is nothing in this case which should induce a departure from it.