*118The opinion of the court was delivered by
Redfield, J.A witness may be compelled to testify to facts, which will have such a tendency, in regard to the determination of the case, as, by consequence, to subject the w}tnegg to pecuniary loss. Such has long been the settled practice in this state. The better opinion is, that this was the rule at common law. A majority of the judges so determined, in the case of Lord Melville, on the question being proposed by the House of Lords ; but some of the judges being of a contrary opinion, the statute of 46 Geo. III. ch. 37, was passed, to put the matter at rest, which may be regarded but as an affirmance of the common law.
In regard to the right of the defendants to the application sought, there can be no doubt. Payments made in pursuance of an usurious contract, to an amount within the debt and legal interest, are to be regarded as payments, generally, and in a bill to foreclose a mortgage, founded upon such contract, may be insisted on.by way of answer. Lord Mansfield, in Smith v. Bromley, reported in note to Douglass, 197, in commenting upon Tompkins v. Bennet, 1 Salk. 22, fully recognizes this rule, in regard to the effect of such payments. See, also, Dey v. Dunham, 2 Johns. Ch. R. 182-191.
The orator claiming as assignee of the mortgagee, will not justify her in requiring the defendants to bring a cross bill, in order to join the executrix of the mortgagee. If there is any importance in joining the mortgagee in such case, it is for the security of the assignee, and he should see to that, in the progress of the cause in the court of chancery, and cannot take advantage of his own neglect in that particular.
The decree of the chancellor is reversed,, and the cause remanded, with directions to deduct the payments made on account of usurious, interest, and also to deduct the amount of the defendant’s costs in this court, from the orator’s costs in the court of chancery.