Gaillard v. Le Seigneur

Curia, per

Butler,, J.
The note upon which this action was brought, was given entirely for usurious interest, and both by the Act of 1177 and 1831,(a) was absolutely void, as well in the hands of an innocent holder, as between the original parties to it. Like every other naked contract without consideration, it created no legal obligation. In this point of view, the defence of usury was properly allowed to be given in evidence, under the general issue. But it is contended that the principal witness to prove the usury, was not competent, as he was the husband of the party intended to be bound by the contract. It is true, that at common law, the wife and husband cannot be allowed to testify for each other, on an issue in which they are directly interested. Neither can a party be a witness in his own cause. By the terms of the statute of 1777, the common law is so far altered as to permit a party to a usurious contract to be a witness for himself. The great object of the statute was to reach the usury, by getting rid of all common law disabilities of the witness to the contract. It was said, however, that by the terras of the statute, this privilege must be limited to the party really in interest, and for whose benefit the money was borrowed, and that as the money was borrowed upon the note of E. Le' Roy, the wife, and for her use, she alone could be the witness. This is a technical exception, and if allowed to prevail, would go far to defeat the object of the statute. This might be obviated by the law which requires the husband to be joined for conformity sake, in all actions brought on the contracts of a feme sole *trader. Their identity by a fiction is presupposed ; and the fictions of law may sometimes be resorted to, to preserve'its symmetry and justice. Why, then in mere legal contemplation, should the husband not be regarded as a party to this contract ? He is a party to the record, for conformity, and let the same fictitious conformity extend to the contract, and all objections would be removed. But I do not wish to rest the judgment of the Court on such a ground. The provisions of the statute must not be evaded by a technical construction of it, inconsistent with the clearly expressed purpose and obvious meaning of the Legislature.

The plenitude of the remedy ought not to be impaired, but maintained, by the Courts. The usurer is entitled to no sympathy or protection, in his efforts to gratify his own cupidity, by making victims of the weak and necessitous. E. Le Roy was not present when her husband, under a power which he may have abused, gave this note, and if the right to testify was restricted to her alone, this would be the result, that the party who may have been ignorant of the contract, in its inception, would be the witness contemplated by the statute, whilst the party who really *150made it, and was cognizant of all the facts, would be excluded. Such cannot be the operation of a statute which it has been said could not be evaded by the wit of man. Crafty contrivance is less to be tolerated than an open attempt to violate law. The second section of the Act of 1771, (4 Stat. at Large, 364,) recites, by way of preamble, that as transactions against the Act “will be generally carried on only when the borrower and lender are present together,” be it enacted, Ac., “that the borrower or party to such usurious bond, specialty, contract or promise, Ac., shall be, and is hereby declared to be, good and sufficient witness in law, to give evidence of such offence against the Act, Ac.” Now, what party was here meant, but the party that was present, as stated in the recital ? The party that, in fact, borrowed the money and made the contract. The object of the Act was to make a witness of the person that was engaged in, and consequently acquainted with, the transaction. Although E. Le Roy was a party to the note, N. Le Roy was the actual borrower, and present when the contract was made. Had he been an indifferent agent, he would have been a good witness, without the statute, for he would not have been interested. The aim *°f the statute was to make witnesses of all the parties interested in the case, who could give such information as would expose and detect the usury. We think the evidence of N. Le Roy was properly received on the trial below. Motion refused.

Gantt, O’Neall, Evans and Earle, JJ., concurred.

4 Stat. 364; 6 Stat. 409. An.

Richardson, J.,
dissented, and delivered the following opinion :

The terms of the Act are “ that in all cases,” Ac., “ where any suit or action shall be brought,” Ac., “ touching any usurious bond, specialty, contract, promise or agreement, or taking of usury,” Ac., Ac., “the borrower or party to such usurious bond,” Ac., “shall be, and is hereby declared to be a good and sufficient witness in law, to give evidence,” Ac., P. L. 284. The terms borrower and party to such bond, Ac., arc synonymous. We usually say party to a bond — borrower by parol. Both terms signify the person that received the money on his own credit and responsibility, and has been sued for it. No other person can be the borrower or party sued for the money lent. The proposition of the Act is then plainly this : Whoever is sued at law for money borrowed on usury, is made a competent witness. Now, is N. Le Roy such a person. Is he sued at law touching any usurious bond, Ac., or promise ? Is he borrower or party to any such ? Is he in any way liable for the money he obtained as agent of Emma Le Roy, and for which he gave her own note — not his ? It ought to be enough to answer that N Le Roy has been sued with his wife, the sole trader, merely for conformity ; that it is not pretended he is liable for the money. But I admit that the case is to be decided as if his name did not appear on the record; although the Act does clearly contemplate the parly or borrower as sued at law before he can be a competent witness. These three propositions are, I presume, granted. If not, they arc all proved by the fact that N. Le Roy was the mere agent of the responsible party and borrower. Emma Le Roy, and is sued with her for legal conformity only. If N. Le Roy were not the husband of Emma Le Roy, both now, and at the *151time of borrowing the money, the error of calling him the borrower

*or party, would strike us at a glance. If he had been only the clerk of Emma Le Roy, and had negotiated the usurious loan for her, none would call him the party or borrower of the money, and he would not have been sued. Now, then, follow out that supposition. As such a clerk to Mrs. Le Iloy, he would not have been sued, and would be a good witness at common law ; but is not made so by the Act of im.

Go a step further, aud suppose the clerk, N. Le Roy, had afterwards married his principal, Emma Le Roy. It would then follow that he could no longer be a witness for or against her, at common law, and the only remaining question would be, can he then, by virtue of the Act, be made the borrower or party to the original loan, on usury, so as to be made a witness under the Act ? The answer would be this : the true character and parties to the transaction, cannot be changed by the act of Mrs. Le Roy and her clerk. “ Quod ab inilio non valet, Iractu temporis non convalescere potest.” She cannot make him the borrower. And if Mrs. Le Roy, the party and borrower, has thus chosen to render her clerk an incompetent witness, it is no more than law to allow her free agency. She took him for better for worse, which includes the legal consequence, that her former clerk can be no longer a witness for or against her, as he might before the marriage have been at common law ; and there is no alchemy in the Act to transmute the character and position he held at the time the money was borrowed. He is still no borrower or party to the loan, and always will be none. But have we not described the precise situation of Mr. LeRoy himself? He was the clerk or other agent of Mrs. LeRoy, and negotiated the loan for her, but was not credited or responsible for the money himself, and therefore not the party and borrower ; yet he was and is the husband of the true party and borrower. But whether he was the clerk .and husband at the time she borrowed the money, or was then clerk and now her husband, can make no difference in the question upon his competency as a witness by virtue of the Act.

The Act makes it depend altogether upon two facts, his being the borrower, and being sued for the money; neither of which appears in the case, but the converse. The test and condition required by the Act, is then wanting, and the case *stands clearly at common law, which forbids the husband being his wife’s witness when on or off the record.

Why is it said in some of the English cases that the husband cannot be the agent of his feme sole trader ? It cannot be that she would not be bound by his acts adopted by herself, though done by him. But because her husband cannot verify or deny her acts, on oath, and he might through their moral union destroy her lawful free agency in sole trading, &c., in which he cannot be a partaker legally. In law'they are incorporated and become as one person ; yet, by law, she may be a sole trader. And to this limited extent, they are as two separate persons, and she a free trader. Our Act, by requiring the husband to be sued with the wife “for conformity only,” illustrates well this principle; upon which the whole argument turns. But if we suffer the form to perplex and alter the doctrine, we shall soon have irresponsible husbands trading *152under the name of their wives, as well as husbands, clerks, swearing to usury for their wives, in cases where the husband was only agent to the wife, and not the borrower of the money under the Act, nor in any way liable for the loan. But quite a different argument was also urged, though I cannot think it was relied upon, as to the odium of usury. Usury is to be put dowD. Assuredly it is, in whatever shape we discover it, lurking in a contract of borrowing. But we are to come at, point out, and prove “ such offence,” as the Act calls it, by competent and lawful testimony ; and the odious loan must be first made to appear before it can be punished. But in a case of express contract, as a note, or of vested rights, we are not at liberty, as this argument assumes, to conceive that there is something wrong, and therefore extend the strict provision of the Act, in order to destroy the contract. The odium of usury may be just. But the evidence of it, is as of strict law, as belongs to any other case ; and there can be no odium before the charge is so proved. This argument then does not apply to the true question. I cannot, therefore, support the decision that held Mr. Le Roy a competent witness.

See 2 Rich. 2. An.