dissenting.
I regret that 1 cannot concur with the majority of the Court, in the judgment which has been rendered in this case.
Distrusting my own ability, as I always do when dissenting from my brethren, I will endeavor to express the grounds of my dissent.
This action was brought by Thomas F. Persons, Administrator tor of John Persons, on a promissory note, payable to the plaintiff’s intestate, one day after date, for the sum of $2660 83, against the defendant, Henry Hight. The defendant filed a plea of usury, in *501which he specially set forth the original sum loaned, the rate of interest, the renewals of the note, and the various transactions between the original contracting parties, with great precision and exactness, notice of which was duly served on the plaintiff, as required by the Act of 28th Decem. 1842. Before I proceed to notice the exceptions taken at the trial, I will give my views as to the proper construction of the Act of 1842. That Act was intended to be a remedial statute. “ There are three points,” says Black-' stone, “ to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy; that is, how the old law stood at the making the act; what the mischief was for which the Common Law did not provide ; and what remedy the Legislature hath provided to cure this mischief. And it is the business of the Judge so to construe the act as to suppress ike mischief and advance the remedy’’ 1 Bl. Com. 87.
How stood the old law in this State, prior to the Act of 1S42 ? In all cases of usury, where the knowledge of the usurious transaction was confined to the contracting parties, (which was usually the case,) the party pleading the usury was compelled to go into a Court of Equity, and file a bill of discovery tc obtain a disclosure of the facts stated in his plea, from his adversary. Before a Court of Equity would aid him to obtain a discovery, the party seeking such discovery was required to make a tender of the principal, and lawfiil interest due on the plaintiff’s demand.
What was the mischief which the Legislature intended to remedy ? Owing to the great pecuniary embarrassment of the country, it was extremely difficult, and in most instances impossible, for debtors to make a lawful tender, in gold or silver, of the principal debt and lawful interest, and the usurer obtained his judgment for the whole amount of his demand, and forced a sale of his debtor’s property, in satisfaction of his usurious claim. What is. the remedy which the Legislature intended to apply by the Act of 1842, to suppress and correct this evil? The Legislature intended that the plaintiff, when the plea of usury was filed, upon notice, should discover the truth or falsehood of the facts stated in such plea, in the same manner as he would have been required to do in a Court of Equity, had a bill been filed against him under the old law; and to relieve the defendant from going into a Court of Equity for such discovery, where he would be required to make a lawful tender of principal and interest. *502The caption of the Act discloses the intention of the Legislature. It is entitled “ An Act to compel parties plaintiffs in the several Courts of this State, where the plea of usury is filed, to discover on oath, the truth or falsehood of the facts stated in such plea, or to allow the defendant, in case of refusal by the plaintiff, to establish the facts contained in such plea, by his own oath, without a hill of discovery.” The plain object of the Act was to obtain a discovery from the plaintiff, of the truth or falsehood of the facts stated in the defendant’s plea, in the sume manner as he would have been required, in an answer to a bill of discovery in Equity, containing the same facts.
When a bill for discovery of usury was filed under the old law, on the Equity side of the Court, and the plaintiff at Law fully answered the bill, in other words, when he “ discovered, on oath, the truth or falsehood of the facts” stated in such bill, in relation to the usury charged therein, the defendant at Law, was remediless, if his witness disclosed, on oath, the falsehood of the facts charged in his bill in relation to the usury. If the plaintiff at Law disclosed the truth of the facts charged in the bill, in relation to the usury, then his answerwouldbenefitthe defendant at Law, but it did not follow, because the defendant at Law charged the transaction to have been usurious in his bill, that the plaintiff at Law was bound to disclose the facts to have been as the defendant charged, them. The plaintiff at Law was bound to answer every material allegation in the bill, in relation to the usury, according to the rules and practice of Courts of Equity; either disclosing the truth of the charges, or disclosing the falsehood of the same, and when he had done so, that was all a Court of Equity would have required of him.
[1.] The Act of 1842 requires the plaintiff, in my judgment, to make just such a discovery in relation to “ the truth or falsehood of the facts stated in the defendant’s plea, ’ as he would have been required to make to a bill of discovery on the Equity side of the Court, and no other. The discovery, required by the Act of 1842, in relation to the facts stated in the defendant’s plea, is a substitute for the discovery required by the old law on the Equity side of the Court, the place and manner of obtaining the discovery is changed by the Statute. Under the old law, if the charges in the bill as to the usury, were fully answered, and their truth denied, the defendant at Law had obtained a fill discovery as to the facts *503charged, although such discovery did not benefit him. So, under the Act of 1842, if the plaintiff fully and explicitly answers the ■several allegations in the defendant’s plea, as to the usury, and denies them, all, the defendant cannot read his affidavit, because the plain tiff has discovered, on oath, thefalsehood of the facts stated in the defendant’s plea ; in other woi ds, the defendant has obtained a full discovery from the plaintiff, touching the allegations in his plea as to the usury, in as ample manner as if he had been in a Court of Equity with his bill for discovery, and that was all the Act of 1842 intended to give him. But if the plaintiff shall refuse to answer at all, or pretending to answer, fails or omits to answer fully as to the truth or falsehood of the several allegations made in the defendant’s plea as to the usury, or answers the same evasively, then the Court will treat it__as no ayiswer, and will allow the defendant to read his plea, verified by his affidavit.
The Statute gives the plaintiff the right to make the discovery, and he is bound to make a full zxi&fair disclosure of all the facts charged, in the same manner as he would be required to do in a Court of Equity, at his peril, or the defendant will be permitted to read his affidavit; and 1 would hold, even at the trial, on exceptions taken to the sufficiency of the plaintiff’s answer, he should be permitted to make it full, so as to exclude the affidavit of the defendant, for the Statute evidently contemplates the plaintiff shall make the discovery if he is willing to do so.
[2.] I concur in opinion with my brethren, that suits brought by administrators are. within the provisions of the Statute.
On the trial of this cause, the plaintiff offered in evidence the following affidavit, as a compliance with the Act of 1842, in answer to the various allegations in the plea of the defendant as to the usury : “Personally came before me, Thomas F. Persons, administrator and plaintiff in the above stated case, who, being duly sworn, deposeth, and saith on oath, that the facts set forth in defendant’s plea as to the usury, are not true, and that the contract sued upon is not usurious, according to the best of his knowledge.” The record discloses that the Court below, at this stage of the case, ruled that the foregoing affidavit was in compliance with the Statute, and ordered the same to be read to the Jury. Afterwards, the defendant offered in evidence his plea, verified by affidavit, to establish the usury. The plaintiff objected, on the ground that it was not competent for the defendant to *504support his plea by his affidavit, after the plaintiff’s affidavit had been produced and read to the Jury. The Court overruled the objections, and decided the affidavit should be read in evidence in support of the defendant’s plea of usury; whereupon the counsel for the plaintiff excepted. The counsel for the plaintiff then requested the Couit to charge the Jury: 1st. That the jdea and affidavit of the defendant is not evidence before them that there' was usury in the note, the subject matter of dispute between the parties, the plaintiff having filed and given in evidence his affidavit in compliance with the provisions of the Statute. 2d. The defendant having introduced no evidence to sustain his plea of usury, the plaintiff is entitled to recover the amount of his note and interest —which instruction the Court refused to give, hut instructed the Jury, that the Act of 1842 was, to his apprehension, crude, and difficult of construction, “ but it is my opinion, that when the plaintiff, on the requisition of the defendant, makes his affidavit as to the matter of the plea, and fails to make any disclosure as to the facts stated in the plea, but is merely negative in its character, it is competent for the defendant to read his affidavit as to the facts; that it is admissible evidence to be submitted to the Jury, like other evidence in the case, and of course the credibility of that evidence is exclusively for the consideration of the Jury.”
To the refusal of the Court to charge as requested, and to the charge of the Court as given to the Jury, the counsel for the plaintiff excepted, and now assigns the same for error here. The Jury allowed the plea of usury by their verdict, and the question is, whether there ought to he a new trial granted for error in law, appearing on the face of the bill of exceptions, and transcript of the record. If the affidavit of the plaintiff, containing a general and sweeping denial of the usury, without even pretending to answer one solitary specific charge, contained in the defendant’s plea, (covering about six pages, in giving a minute and precise history of the original loan, the rate of interest taken, and the various renewals of notes, from time to time,) is in compliance with the Statute, then there is error in the charge of the Court to the Jury, and also in admitting the defendant’s affidavit; but if the affidavit of the plaintiff is not a sufficient answer to the truth or falsehood of the many facts stated in the defendant’s plea, or if the plaintiff, in the language of the second section of the Statute, has failed or refused to make a discovery, as provided in the first sec*505tion of the Act, whether the various facts set forth in the plea are true or false as to the usury charged therein, then there is no error in the record, and the affidavit of the defendant was properly read in evidence to the Jury. I have endeavored to show that the discovery sought from the plaintiff, was a substitute for a hill of discovery in Equity, and that the plaintiff would be required to answer the allegations in the plea, ss fully as if the same allegations had been embodied in a bill in Equity ; certainly, the Legislature, in passing this remedial Statute, did not intend to adopt a less stringent remedy as to the discovery in the answer of the plaintiff, than had been required by Courts of Equity. What is the rule, in Courts of Equity, which has been adopted and expressly sanctioned by this Court in a usury case, in which a discovery of the usury was sought ? This Court held, “ an answer must be full and perfect to all the material allegations in the bill; it must state facts, and not arguments. It is not sufficient that it contains a general denial of the matter charged, but there must be an answer to the sifting inquiries upon the general subject. It should also be certain in its allegations, as far as practicable. To so much of the bill as it is necessary and material for the defendant to answer, he must speak directly, and without evasion, and he must confess or traverse the substance of each charge. And where there are particular, precise charges, they must be answered particularly and precisely, and not in a general manner, though the general answer may amount to a full denial of the charges.” Walker's Ex’r. vs. Walker, 3 Kelly, 309. The rule is founded in good sense. The particular and precise facts charged in the plea, -may not, in the opinion of the plaintiff, constitute usury ; yet the defendant is entitled to have them answered, in order that the Court may judge whether they constitute usury in the eye-of the law. Will it be pretended that if the special allegations contained in this.plea, had been incorporated into a bill for discovery on the Equity side of the Court, that the answer of the plaintiff’, as exhibited by the record before us, would have been considered sufficient 1 There is not a Chancellor in the country but would have, considered such an answer as a vñlful and shameless evasion of the charges contained in a bill for discovery of material facts. To consider such an answer as a sufficient compliance with the requisitions of the Statute, enacted to compel a discovery of the truth or falsehood of the facts stated in the defendant’s plea, would, *506in my judgment, operate as a total repeal of the wise provisions of that Act. It was said the plaintiff was an administrator, and the facts stated in the plea could not be presumed to he within his knowledge. The papers oí the intestate would naturally fall into his hands, and he might very reasonably have some information and belief as to the facts charged. Mr. Justice Story states the rule to be, as to facts which have not happened within the defendant’s own knowledge, that he must answer as to his information and belief and not to his information merely, without stating any belief, either one way or the other. Story’s Eq. Pleading, 656, Seetion 854. The answer of the plaintiff not being a sufficient compliance with the Statute, the Court below was right in treating it as no answer, and admitting the affidavit of the defendant ;. for we have the authority of Lord Eldon, in Gregor vs. Lord Arundel, (8 Vesey, 88,) in saying that “ the general doctrine certainly is, that an answer that is not sufficient, cannot be said in a correct sense, to be an answer.” But it is said, the Court below ruled this answer of the plaintiff was a compliance with the Statute, and permitted it to be read to the Jury ; and afterwards allowed the defendant to read his affidavit as evidence. The record does so state, but the same record also shows, that the Court, in the progress of the trial, became convinced of its error, and corrected it, as we are bound to infer, from the charge of the Court to the Jury, and from the fact that the Court admitted the defendant’s affidavit in evidence; for if the Court had continued of the opinion that the plaintiff’s affidavit was a compliance with the law, it would not have admitted the affidavit of the defendant to have been read in evidence. I also infer that the Court changed its opinion in the progress of the trial, from the fact of its refusing the instructions prayed by the plaintiff’s counsel to the Jury, and charging them, “that where the plaintiff, on the requisition of the defendant, makes his affidavit as to the matter of the plea, and fails to make any disclosure as to the facts stated in the plea, but is merely negative in its character, it is competent for the defendant to read his affidavit as to the facts.” This charge of the Court to the Jury certainly does not look much like a recognition of the sufficiency of the plaintiff’s answer, if I can understand the plain import of the words used by the Court in that charge; for although the affidavit had been read in evidence in behalf of the plaintiff, yet the Court, very properly, in my judgment, instructs *507the Jury, in effect, that it is no ansioer, and so the Jury must have considered it. Perhaps it would have been more regular to have rejected the affidavit from the Jury; hut it was rendered entirely harmless by the charge of the Court to the Jury, and even if the Court clid err in admitting it in evidence, that error was in favor of the plaintiff in error here, who has no cause of complaint on that account. This Court held, in Peek vs. Land, 2 Kel. y, 17, that it would not grant a new trial, although the Court below did commit error in favor of the 'plaintiff in error, when '¿the verdict was not contrary to law; and why should it 1 The plaintiff in error here has not been injured by the reading in evidence his own affidavit, improperly, in Ms own favor. The fair construction, which I think, ought to be given to the action of the Court below, is, that when the plaintiff’s affidavit was first offered-in evidence, the Court was of opinion it was a compliance with the Statute, but during the further progress of the cause, the Court came to the conclusion it was not in compliance with the Jaw; and instructed the Jury to that effect, and in my judgment, the verdict was right upon the law and facts of the case, as presented by the entire record. Something was said, in relation to the right of cross examining the plaintiff, where his affidavit was not full. The answer to that view of the question is, that the plaintiff.cannot be cross examined until he files a good and sufficient answer as to the facts stated, in the plea. The second section of the Act declares, that if the plaintiff shall fail or refuse to make the discovery, the defendant may make his affidavit as to the truth of the facts in his plea, and the same may be read in evidence; then, the defendant would be the party to be cross examined. To entitle the plaintiff to read his affidavit as to the truth or falsehood of the facts stated in the defendant’s plea, and be cross examined, he must first make afull and complete answer to all the allegations in the plea in regard to the usury. Until he has done so, his affidavit cannot be read, nor he cross examined; to permit it, would deprive the defendant of a right which the Statute gives to him, when the plaintifffails or refuses to make the discovery required.
My construction of the Act of 1842, then, is, that it was intended to compel a discovery from the plaintiff, in the language of the first section, as to whether or not, the contract upon which the suit is brought, was usurious, and also, whether the^aci or facts, set forth in the defendant’s plea, are true or false, as to the usury, *508in as full and ample manner as he would be required to do in a Court of Equity ; that when the plaintiff shall have made such a discovery, then the defendant cannot read his affidavit to the Jury, although the plaintiff denies the contract was usurious, and also denies all thefacts set forth in the defendant’s plea, as to the usury, for the reason the plaintiff has made a full discovery, and the legal presumption is, that he has told the truth, being the defendant’s witness under the Statute; that if the plaintiff shall fail or refuse to discover, whether or not the contract sued on is usurious ; or shall fail or r<fuse to discover, whether the fact or facts set forth in the defendant's plea, are true or false, as to the usury, in as Jull and ample manner as required on the Equity side of the Court; then, the defendant is entitled to read in evidence, his affidavit, as to the truth of his plea; and that in this case, the discovery made by the plaintiff, in his answer to the many specific allegations, as to the usury stated in the defendant’s plea, would not, in a Court of Equity, be held a sufficient answer, and would in that Court be treated as no answer to a bill of discovery, containing similar allegations — and that he has failed and refused to make such a discovery, in relation to the alleged usurious contract sued on, and in relation to the facts stated in the defendant’s plea, as to the-usury, as is required by the first section of the Act; and that the Court below did not err in permitting the affidavit of the defendant to be road in evidence, nor in its charge to the Jury, as to the insufficiency of the plaintiif’s answer; and that if the Court did err, in allowing the plaintiff’s affidavit to be read in evidence, during the progress of the trial, it was an error in favor of the plaintiff in error here, of which he has no cause of complaint, as was ruled in Peck vs. Land, and in my judgment, properly so ruled, both upon principle and authority. In every view which I have been able to take of this case, as presented by the record, I am of the opinion the judgment of the Court below should be affirmed.