No rule is better settled than that a witness is privileged from testifying where his answers would subject him to a penalty or render him liable to conviction for a criminal offence. The court is to determine whether the case is such *343that the answers can criminate him, and he is then to judge from his own knowledge of the particular facts whether he can safely answer. (The People v. Mather, 4 Wend. 229, 254.) The question in this case is whether the witness was so situated that he could be guilty of the offence of usury in the transaction in question. If he could be, then his oath that he was apprehensive that his testimony might lead to his conviction is conclusive ; for the court cannot judge without a knowledge of his agency in the transaction, whether it was of a character to render him culpable or not. It appears that he was the cashier and a large stockholder in the institution; and it is not improbable therefore that the negotiation for the discount of the note in question was carried on with him, and that he was the actor in the transaction and in fact received the usury. If so he would in my opinion be liable though he acted in behalf of the bank; as much so as if he had entered into the transaction on his own account and for his individual benefit. In misdemeanors all the actors are principals. (4 Bl. Com. 36; 1 Hale’s P. C. 233, 613.) The offence consists in receiving usury, (Stat. 183T, p. 48T, § 6;) and it seems to me to be no answer to such a charge that another participated in the guilt and received the profits of the unlawful bargain. In The Commonwealth v. Frost, (5 Mass. 53,) the point now under consideration was discussed by the court; and it was strongly intimated that the agent would be liable, though the point was not directly decided.
I am therefore of opinion that the circuit judge ruled correctly, and that the judgment of the supreme court ought to be affirmed.
On the question being put, “Shall this judgment be reversed?” the members of the court voted as follows:
For reversal: Senators Clark, Hand and Varney—3.
For affirmance: The President, and Senators Beers, Bockee, Chamberlain, Deyo, Emmons, Folsom, Lester* Lott, Mitchell, Porter, Smith and Talcott—13.
Judgment affirmed.