concurring.
The Act of 1842 is in derogation of common right. It coro-pels the party plaintiff to become a witness, in suits upon usurious contracts against himself; or to admit the' defendant’s oath in support of his own plea. At the time this Act was passed, this could not be done at Common Law in any other case. It gave a right to the defendant, and cast a burden upon the plaintiff, ins this class of cases, unknown to all others. It established a new rule of evidence, and repealed a principle which in the Courts of that jurisdiction, had prevailed for centuries — the principle, that a party could not be called to- testify in his own behalf. It cannot in my judgment, be viewed in the light of a Statute which; creates a new remedy; for remedies against usurious contracts-existed before"; both at Law and in. Equity. The plea of usury was allowed, before its passage, at Common Law and by our own Statutes ; and a defendant could also go into Chancery, upon certain terms, to be relieved against usury. The plea of usury was available to the defendant, according to the general and well-approved rules of evidence ; and the remedy in Equity was; subject to established rules, regulating that subject matter in Courts of Chancery. It does not, therefore, ordain a remedy for a mischief before remediless ; or means of enforcing a righty which could not be enforced by the existing law. Its object is indicated in the title. That object is to- compel a party plaintiff to discover on oath, the usury in his contract; or, upon refusal so to do, to admit the evidence of the defendant in support of his plea of usury. It seeks to simplify, and to- render more easily available, an existing remedy, by creating a new rule of evidence in the Courts of Common Law. I must view it therefore, as a Statute amendatory of the law of evidence.
The new rule of evidence which it ordains, is in derogation of common right; it is applicable alone to one class of cases, and ought to he construed, strictly. The defendant should take nothing under it by implication, or inference. Nothing, save that which the Statute gives him by a strict but fair interpretation. I am willing to give him his pound of flesh, but with my consent* *493be shall draw no blood. Whilst I know that it is the duty of this Court to give full effect to the legislative will, and whilst I am resolved to enforce all constitutional laws, I do not feel at liberty to go 'beyond the meaning of the Legislature, interpreted according to established canons, to give effect to what I may imagine to be the policy of the law. In a Court of Law, more particularly, I do • not feel authorized to depart from those canons. Placed here, under the most solemn of all sanctions, to administer the law as it comes to ms from the Legislature, I may not, under the idea of fostering any given policy, look outside of the law itself, to ascertain its meaning. A license to look away from the Statute to the policy of the State in enacting it, is the parent of Judicial legislation. Most heartily do I approve of the policy of our Usury Laws. They have worked well. I must say, at the same time, that the Legislature has gone quite far enough, in giving facility to the defence of usury. If the meaning of the Legislature in the Statute before us, was ambiguous, 1 should lean to that construction which would favor the policy. But it is not doubtful. In construing Statutes, the Common Law is to be considered. They are to be construed in reference to the principles of the Commpn Law ; for it is not to be presumed that the Legislature intended to make any innovation upon the Common Law, further than the case absolutely required. 1 Kent, 463. With such views of the Act of 1842, and guided by the usual rules of statutory construction, I proceed briefly to consider its more specific, meaning, and its application to the case made in this record.
[1.] A question is made here, whether this Statute is applicable to parties, who sue and are sued in a representative character. The language of the Statute is general, and applies to all cases. There is no exception made ; nor is there any provision, which precludes the idea of representative parties being amenable to it. “ In all cases in the several Courts in this State,” is the language of the Act. The reason for calling upon an original party to the contract to disclose the usury, applies also to his representative; although with greatly diminished force. It is to be presumed that an executor, or even an administrator, knows more of the contracts of the decedent, than the world at large. According to the Act, what he does know, the défendant is entitled to have disclosed, or to be let in to the benefit of his own. oath.
*494Upon the first trial of this causo, it seems that the plaintiff made oath under the Statute, which was read. On the trial of the cause on the appeal, he made oath again, which was fuller, and which the Court ruled was in compliance with the Statute; and which being read by the defendant, as part of his testimony, the first affidavit was also admitted, at the instance of the defendant, for the purpose of impeaching the credibility of the plaintiff. We are all agreed that it was wrongfully admitted. The plaintiff was before the Court as the defendant’s witness. He could not impeach his own witness. Had the affidavit of the plaintiff been adduced as evidence by the plaintiff himself, the case would have been different. Resides, the last affidavit was in compliance with the law. The previous affidavit was merged in that. The defendant getting what the Statute gives him, is himself restricted by all the rules applicable to him in a Court of Law. If he be entitled to impeach his own witness at all, it must be by authority of the Statute in its grant of power, to put the plaintiff after he has answered, on the stand for cross-examination ; and must be exercised in that way, or not at all. At first view of the record, it would appear that the plaintiff himself tendered his affidavit in evidence, as testimony. This, however, he did not do. But tendered it to the defendant, in compliance with the Statute, and it being held by the Court in accordance with the Statute, it was read as evidence for the defendant.
The affidavit of the plaintiff, evoked under the Statute, is in the following words:
Georgia, Warren County :
Assum’t, &c,, in Warren Sup. Ct. Plea of Usury.
Personally came before me Thomas F. Persons, Administrator and Plaintiff in the above stated case, who being duly sworn, de-poséth and saith on oath, that the facts set forth in the difendant’s flea, as to the usury, are not true ; and, that the contract sued, on, was and is not usurious, -according to the best of his knowledge.
T. F. Persons.
Sworn to and subscribed before me, 3d. April, 1848.
Jesse M. Roberts, j. i. c.
The Court, as before stated, held that this affidavit was in com*495pliance with the Statute ; and it was read at the same time he admitted the oath of the defendant in support of his plea.
[2.] I hold, with the Court, that the plaintiff’s affidavit was in compliance with the Statute; and because it was in compliance with the Statute, I hold that he erred in admitting the defendant’s oath. The presiding Judge went upon the ground, that in all cases occurring under the Statute, where the plaintiff’s affidavit does not afford evidence sufficient to make out the defendant's plea, the defendant is entitled, by reason of that deficiency, to his own oath. No other view of the Court’s opinion can make it consistent; for he expressly held, that the affidavit was in compliance with the Statute. From this view of the Statute, I must dissent. Counsel who argued this cause for the defendant in error, maintain that the affidavit of the defendant was p roperly admitted by the Court; but for a different reason from that which governed the mind of the judge. They insist that the affidavit of the plaintiff, was not in compliance with the Statute, and, therefore the oath of the defendant was properly admitted. They say, analogising the response of the plaintiff to the defendant’s plea and notice, to the answer of a defendant in Equity, that a specific denial of the truth of the facts stated in the plea as to the usury, and a specific denial that there was and is usury in the contract, is not enough; that the plaintiff is bound to the same strictness as a defendant in Equity, answering the allegations of the complainant’s Bill; and that in all cases where the plaintiff’s affidavit is not thus full and minute, it is not in compliance with the Statute, and if not, then the defendant’s affidavit must be admitted. My reply to the view, both of the Court and the counsel, will appear in the exposition which I now proceed to give of the Act of 1842.
I repeat that this Statute creates a new rule of evidence applicable to usurious contracts. "What is it 1 ■ It is that the plaintiff, in actions upon such contracts, where the plea of usury is filed, upon notice of such plea accompanied with a copy duly served according to the requirements of the Act, shall discover on oath in writing, whether the fact or facts set forth in said, flea are true as to the usury ; and whether or not the contract ufon which said, suit is brought toas usurious. And further, that if the affidavit of the plaintiff, thus required, isused as evidence, the plaintiff himself shall be put upon the stand and cross-examined by the *496■defendant. The Statute makes the plantiff a witness for the defendant. For what purpose is he a witness? Why, for the purposes disclosed in the Act — and that in no ambiguous terms. For the purpose of discovering on oath in writing, “ whether the fact or facts set forth in tho defendant’s plea, are true as to the usury; and whether or not the contract upon which the suit is brought, was usurious.” These are the two purposes for which his testimony in writing is required; and if to these two ends he does testify in writing, then he becomes for the defendant, a witness, to be examined on the stand, in the case, precisely as any other witness called for the plaintiff would be liable to cross-examination at Common Law. The rights of the defendant under this rule are, a discovery from the plaintiff iu writing, whether the facts which he chooses to set forth in his plea as to the usury are true, and whether the contract, upon which he is sued, is or not usurious. These, in the first instance, are his rights, and no more.
If the plaintiff complies and his affidavit is read, then another right accrues to him, to wit, the right of cross-examining the defendant. These rights are created by Statute, are in derogation of common right, and are to be exercised in the way which the Statute prescribes, and in no other way; they are to the extent prescribed in the Statute, and no farther. In executing this Statute, the Court must look to the rule as it is written bearing in mind that it is a rule of evidence. In relation to rules of evidence, the Courts should have no enlarging or restraining power. Upon nothing do the rights of parties more depend, than upon the certainty, steadfastness and distinctness of rules of evidence.
Suppose that the plaintiff does make discovery in compliance with the Statute, what guarantee, it may be asked, is there, that he discovers truly ? It is found in his liability to exposure by cross-examination, and to indictment and conviction for perjury, if he disclose not the truth; the only guarantee which the law affords for the fidelity of all witnesses.
[3.] The plaintiff is not compelled to testify at all under this Statute. It is optionary with him to make the disclosure or not. And if he fail or refuse to disclose, in the manner and to the extent which the Statute requires, then the defendant is permitted to testify iu his own behalf; that is the contingency, and that *497alone, upon which Ais affidavit-may be read. The 2d section of the Act provides, that “ If any party plaintiff shall Jail or refuse to make the discovery as provided in the first section of this Act, the party defendant may make affidavit in writing, before any officer'authorized to administer an oath, of the truth of the facts set forth in his plea as to the usury therein pleaded, and said affidavit of the defendant may be rea,d on the trial by either party to the case.” Hotchkiss, 572.
Whether the party plaintiff does fail or refuse to disclose as the Act requires, is for the Court to determine, upon a construction of the Act. If there is no response at all, or an overt denial to answer, verbally or in writing, why, then, the duty is manifest and easy ; but if there be a response, then it is the duty of the Court to determine how far it is in compliance with the Act. If it be in compliance with the Act, whether it prove much or little, or nothing for the defendant — or if it be altogether against his plea, as in the present case — he has got all the statute intended to give him. He has used the plaintiff as a witness, and his own affidavit cannot be read. N othing remains to him but the right to put the plaintiff upon the stand and cross-examine him. The two words fail and refuse, in this Act, seem to me to mean substantially the same thing. They contemplate a failure to come up, in whole or in pait, to the requirements of the statute. The main question then is, what in this regard, are the requirements of the statute 1 If the plaintiff answers specifically to the several allegations of the plea, as fully as he would be required to do in Equity to the same allegations in a bill, he certainly may do so, and the answer would of course be a perfect compliance with the requisitions of the Act. And I do not hesitate to say, that every plaintiff who could so answer, ought so to answer, if he answers at all. If the plaintiff in his affidavit undertakes to answer specifically the allegations of the plea, and fails to answer any one or more ; or if it is appa-to the mind of the Court, upon the answer itself, that it is evasive, then I should hold that it is not such a discovery as the Statute contemplates, and the plaintiff would be held to answer over, and refusing to answer more fully or distinctly, the defendant would be entitled to his oath. Nor do I suppose that a general disclaimer of knowledge in relation to the facts set forth in the plea, as in the first affidavitfiledby this plaintiff, would be sufficient. In such a case, the same consequence would follow, to wit: the defendant might *498testify in bis own behalf. In all cases of defective discovery, upon its being so lield by the Court, it is clearly the right of the plaintiff to amend if he can, and if he cannot, or will not, then the defendant’s affidavit must be admitted. But how is it in the case made by this record? Was this affidavit a compliance with the statute 1 If it was, the Court, in my judgment, erred in admitting the affidavit of the defendant. Judge Sayre thought it was, and admitted the affidavit of defendant, upon the ground that the plaintiff’s affidavit was insufficient to establish his plea.. I have undertaken to show, that the contingency upon which the defendant’s affidavit can be read, is alone the failure or refusal of the plaintiff to discover, according to the requirements of the Statute. If that be the sola contingency upon which it is admissible, it was error to admit it on any other account, or for any other cause. Agreeing with him in his opinion as to the sufficiency of this affidavit, but dissenting from him in his consequent admission of the defendant’s affidavit, I proceed to show why, in my opinion, the plaintiff’s affidavit is in fulfilment of all that the Statute requires. It is a denial, in the very words of the Statute, of the truth of the facts stated in the defendant’s plea, and' a statement, in so many words, that there was, and is, no usury in the contract. The plaintiff'swears, to the best of his knowledge, that the facts set forth in the defendant’s flea, as to the usury, are not true, and that the con'ract sued on, was, andis notusurious. Here is aresponseto the two points of discovery made by the Statute — 1st, as to the truth of the facts stated in the plea ; and 2d, as to the usury, generally, in the contract. There is, in the affidavit, no ambiguity, no evasion, no withholding of anything which the plaintiff knows. Pie answers, as though well informed of the transaction. The denial of the truth of the facts applies to each and all of the statements made in the plea. The plea is, as it ought to be, full and minute — a copy is served upon the plaintiff, and testifying in reference to it, he says the facts stated are not true. It would not have been more in compliance with the Act, if, taking the statements of the plea singly, he had given to each a distinct denial of its truth. If any one of those statements is true, within the knowledge of the plaintiff', he is guilty of peijury. But he is presumed to swear truly, until the contrary appears. The defendant has sifted his conscience — he has discovered what he knows of the whole matter, and it turns out that there is no usury in the con*499tract, and that not one of the numerous specifications in the plea is true. The defendant has had the benefit of making the plaintiff his witness, and that is what the law gave him. It is, perhaps, his misfortune, that, (as it sometimes happens in other cases,) the testimony of his witness is against him. Upon the assumption that the plaintiff swears truly, what more could he say ? How could he amend his affidavit, so as to make it more satisfactory to the defendant, and still swear to the truth? Either the plaintiff has sworn truly or falsely. If truly, he has nothing more to say, consistent with truth. If falsely, then he is guilty of perjury, and liable to be convicted and punished. The idea insisted on by the counsel for the defendant, that this affidavit ought to be amended and made more explicit, to bring it within the requirements of the Statute, it seems to me, involves a necessity on the plaintiff, of stating what is not true, at the peril of subjecting him to the admission of the testimony of the defendant in his own favor. It does not seem to me that it is liable to exception. If the defendant has doubt of the bona jides of the plaintiff, he is entitled to the privilege of as searching a cross-examination, as his ingenuity or that of his counsel, can bring to bear upon him. And this right of cross-examination destroys the analogy between the procedure under this Statute, and the practice of a Court of Chancery. It is given, in lieu of the exceptions in Courts of Equity, to the defendant’s answer. Ifthe defendant may except to the plaintiff’s answer, as the complainant may to the defendant in Chancery, where is the necessity of cross-examination ? The right to amend his affidavit, when ruled insufficient by the Court, does, not grow out of the privilege of the defendant to except; it is his privilege, in order to avoid the admission of the affidavit of the defendant.
It is said that the Legislature intended to give this defence at Law, instead of the more tedious and expensive mode of redress against usury in Equity; and therefore, it is the duty of the Court to give to it the same efficiency that the remedy in Equity has. And that, inasmuch as the affidavit of the plaintiff would be held insufficient as an answer in Equity, it is not sufficient here. It doubtless was the intention of the Legislature to give a remedy, so far as it goes, like that which a defendant has in Equity. But it is still a remedy at Law, to be pursued, so far as the Statute gives directions, according to its provisions, and so far as those di*500rections are imperfect, according to the course of the Common Law. If any of the rules in Equity, which govern this subject matter there, are to be imported into a Court of Law, why not import all? If the plaintiff is to be held to that strictness in his affidavit, which characterizes an answer m Chancery, by what authority is the defendant exempt from that strictness to which he would be held as a complainant in Equity ? Why not, for example, before allowing him the benefit of this new rule of evidence at Law, require him, as in Equity, to pay or tender the principal and lawful interest of the debt! If we are to convert a Court of Law into a Court of Chancery, we must do in whole and not in part. We must deal out Equity to both sides. The truth is, that innumerable difficulties spring out of this blending of the two jurisdictions. It is expedient, in my view of the matter, that they be kept distinct. The proper administration of jrfstice requires it. The rights of the people before our tribunals require it. Nothing is more painful to me, than this marring of the beauty of the law — this destruction of its symmetry and order — this confounding of jurisdictions; because, I think 1 see in it, ultimate injury to rights —rights which are better protected by the time-honored usages of the science, than by the simplifying processes of a recent day. 1 cannot believe that the Legislature intended, in this instance, to clothe our Courts of Law with any more piowers than they have, in the Statute, expressly granted. To them, I am disposed to hold them, believing that the affidavit of the plaintiff-was in compliance with the requirements of the Statute, I am satisfied that the Circuit Judge erred in admitting the affidavit of the defendant.