1825. calling the mortgagee to Kentucky in order to receive a tender.

De Wolf

V.

evidence Prentiss,

one

to the suit, was admissible.

In the effort to sustain his defence under the Johnson. laws of Rhode-Island, the defendants have inHow far the troduced into the cause the examination of their of co defendant, Prentiss, taken at the instance of of the parties themselves, and received in the Court below subject to legal exceptions. We are not informed whether the Court below actually recognised it as competent evidence, since the grounds on which that Court dismissed the bill are not spread upon the record. It is enough that it does not appear to be rejected; we are now called upon to pass an opinion upon it.

A certifica

or insolvent,

against whom

no relief can

a necessary

cannot be ex

witness in the

order has been

motion for that

purpose.

The only grounds upon which an argument ted bankrupt has been made in support of the admissibility an of Prentiss' deposition, have been, that the combe had, is not plainant avers him to be insolvent, which fact the party; but he testimony in the cause goes also far to establish; amined as a and that his deposition was taken before he was cause, until an in reality made a party by the service of a subobtained upon pœna. But, on no principle can his evidence be adjudged competent. It is true, that cases occur in which certificated bankrupts are struck out of a record and made witnesses; but if this was a case in which a motion to strike out could have been sustained, the motion should have been made, and the party's name expunged from the record. On no principle could he be made a witness while he was himself a party. He may have had little or no interest in the event of the suit, except as to the costs; but still, while a party to the record, he could not be examined. We

De Wolf

V.

Johnson.

know of no exception to this rule, whatever be 1825. the Court in which the question occurs, except it be in the administration of certain branches of the admiralty jurisdiction. From the views that we take of the case, however, we do not find it necessary to inquire whether there is sufficient evidence in the cause, after rejecting the evidence of Prentiss, to sustain the facts on which the defence rests. If, with the aid of that testimony, the defence cannot be sustained; a fortiori, it cannot be without it. And here it may be proper to premise, as was very correctly remarked in the argument, that there has not been, in fact, any contrariety of opinion expressed by the counsel on the law of usury. Usury is a mortal taint wherever it exists, and no subterfuge shall be permitted to conceal it from the eye of the law; this is the substance of all the eases, and they only vary as they follow the detours through which they have had to pursue the money lender. But one difficulty presents itself here of no ordinary kind. It is not very easy to discover how the taint of Rhode-Island usury can infuse itself into the veins of a Kentucky contract. The defence would not admit of a moment's reflection if it rested on the direct effects which laws against usury have upon contracts. Whatever sums may have been derived through the usurious contract of 1815, to the contract of 1817, they would not affect the latter with usury, unless introduced in violation or evasion of the laws of Kentucky, for the two contracts are governed by laws that have no connexion. But it makes very little differ

1825.

De Wolf

7. Johnson.

ence in this case, since, if the contract of 1817 is, either in whole or in part, unconscionable, this Court would not lend its aid to execute it as far as it was unconscionable, and the argument goes to show that it partakes of that character, because, admitting that the law of Rhode-Island did not render the contract of 1815 null and void for the principal sum loaned, yet the sum exhibited in that contract, as principal, and so transmitted to the latter contract, contained sundry items, which it is contended, were passed upon Prentiss at a great loss, and under circumstances calculated to serve as a disguise to usury.

And first, as to the shares in the Lexington Manufacturing Company; these were fifteen in number, and appear to have been taken by Prentiss on account of the 83,000 dollars, about 2,000 dollars a share. The whole of which, there is reason to think, was sunk in his hands, in the general wreck of the adventure.

It cannot be denied, that this is a suspicious item; it does not, in general, comport with a negotiation for a loan of money, that any thing should enter into the views of the parties but money, or those substitutes which, from their approximation to money, circulate with corresponding, if not equal facility. Still, however, like every other case, it is open to explanation, and the question always is, whether it was or was not a subterfuge to evade the laws against usury. And, here it is to be observed, that it is not every sale which, in a negotiation for a loan, will taint the transaction with usury; for it may

De Wolf

V.

Johnson.

comport perfectly with the general views of the 1825. borrower to make such a purchase, or to take the article even in preference to money. I would illustrate this by the case of a merchant who proposes to borrow a capital to adventure in trade, and who, instead of money, receives an assortment, at a fair price, adapted to that trade. There would be no ground for attributing to such a transaction a design to evade the statute. But in what does the present case vary from that? Prentiss had embarked in a manufactory, of the prospects of which he entertained the highest hopes. He either believed, or endeavoured to / persuade others, that it would yield fifty per cent. The De Wolfs had embarked, on his representations, 30,000 dollars in the enterprise. No experiments had been yet made from which any doubts could be excited, nor is there any proof that the stock was falling. Under these circumstances, he proposes to take back the shares if he could procure money to complete the establishment. The connexion between the actual loan, and taking the shares as part of the loan, was easy and natural, and the interest of twelve per cent., with other incidental advantages held out for the loan, may well be estimated as the actual inducement, without supposing that De Wolf was conscious of passing this item upon Prentiss at an inflated price. Prentiss had himself put a value upon these shares but a short time before, in the sale to De Wolf, at nearly the same price, and De Wolf was either his dupe, or the shares were resold at their value. Prentiss's continuing

D. Wolf

V.

Johnson.

1825. confidence in their value is positively deduced from the efforts he made to complete, at every hazard and sacrifice, the establishment to which those shares appertained. He still thought it a profitable investment, and so had De Wolf thought it, or he would not have made so large an investment without an atom of security but what was to be found in his anticipations from the establishment itself. It is conclusive, that this was no heterogeneous disconnected article forced into the negotiation, but intimately connected with, if not the primary object of, the loan; that the price, however inflated, was that which both parties had, by previous unequivocal acts, set upon it; and if it could be said to have a market value, there is no evidence that it was above its market value; and, finally, that it was an actual transfer of interest with a view to acquire the article, and not merely to throw it upon the market in order to raise money. It was a real transaction, and not a subterfuge.

On the subject of the treasury notes and bills drawn on Philadelphia, we can perceive nothing usurious, or even unconscionable, in this part of the transaction. As to treasury notes, they were thrown into circulation as money, and it is an historical fact, that they were worth all they purported to be worth, notwithstanding the casual depreciation which the embarrassments of the country, and the scarcity of gold and silver, may have produced; and as to the bills on Philadelphia, we are induced to believe that payment in that form was a benefit conferred on the borrower.