John Binney versus John Merchant.
To an action by an endorsee against the maker of a promissory note, the defendant avers that the note was made and endorsed in blank, and given to one L, T., to secure a sum of money borrowed of him by the defendant; and that L. T. has not assigned his interest, but is the real creditor in the action; and this he is ready to verify, &c. — He then proceeds with a regular plea of usury taken by L. T. on the note, and upon the loan to the defendant, and tenders his oath in proof thereof, when, &c. — Upon demurrer, the plaintiff had judgment.
Case on a promissory note subscribed by the defendant, payable in sixty days to one John Hunting, or order, endorsed by him to one Artemas Murdock, or order, and by him to the plaintiff.
The defendant pleads in bar, that the said note was drawn by him, and endorsed by Hunting and Murdock in blank, and given to one Levi Thaxter, of, &c., to secure a sum of money lent by him to the defendant, and the interest thereupon reserved and taken, and was at the commencement of this action, and now is, the property of the said Thaxter; that he hath not assigned his interest to the plaintiff; that the said Thaxter is the creditor on this demand, and the original writ in this suit was sued out in the name of the plaintiff, for and in behalf of Thaxter, and for the purpose of enabling him to recover and receive any sum of money that might or may be recovered upon the said note in this action, and not [ * 191 ] for the benefit, use or behoof * of the plaintiff; and this the said Merchant is ready to verify when, &c.
The defendant subscribes the plea here, and proceeds —
And the said Merchant further says that, by the same note, &c., there is taken, reserved, and secured, to said Thaxter, the creditor as aforesaid, in whose behalf, and for whose use, &c., the original writ was sued out in the name of the plaintiff, more than at the rate of six pounds in one hundred pounds, for the loan, &c., of the sum actually lent by said Thaxter, and shows how, &c., contrary to the form of the statute in that case made and provided ; and this ie is ready to verify, and to make oath in proof thereof, when and where the Court shall order; wherefore he prays judgment, &c.
*157The plaintiff demurs generally, and the defendant joins in demurrer.
At the July adjournment of the last March term, the cause coming on, Channing, of counsel for the defendant, being called on by the Court, confessed that he found no precedent in the books for this mode of pleading, and there being no statute provision against usury in England, similar to ours, sufficiently accounts for the want of such a precedent. The only mode of trial known in the English law, similar to this trial by the oath of the party, is that of wager of law, and that has been extended to actions brought by assignees of a bankrupt. The second section of the statute of 1788, c. 55, for restraining the taking of excessive usury, which gives the debtor this remedy by his own oath, speaks of debtor and creditor only, instead of plaintiff and defendant, as is the usual manner when treating of suits at law ; and as it has been settled that by these words in the statute are meant only the original parties to the contract, the defendant had no other means of availing himself of the statute provision, than that which he has adopted. The ob ject of the plea is to show to the Court who is the real creditor, xvho alone can be admitted to tender his oath in the case.
* But Channing, perceiving the Court inclining strongly [ * 192 ] against his plea, declined arguing further in support of it, observing only that he had bottomed it upon the replication in the case of Winch vs. Keely ;
which is strongly in point to show that the Court will see who the real parties are.
Richardson, for the plaintiff,
was stopped by the Court; and the action standing over to this term, the opinion of the Court was delivered by
Sewall, J.
The plaintiff’s action is as endorsee of a promissory note made by the defendant payable to Hunting, or his order, by him endorsed to Murdock, and by him to the plaintiff. In the plea or pleas of the defendant, (for his intentions in this respect remain in some uncertainty,) it is first averred that the note endorsed in blank by Hunting and Murdock xvas given to one Eevi Thaxter, to secure a sum of money borrovved of him by the defendant, and that Thaxter had not assigned his interest, but is the real creditor in this demand and action brought for his use and benefit; and after tendering a verification, but without praying a judgment upon these averments, the defendant proceeds in a regular plea of usury taken, reserved and secured by said Thaxter in the note, and upon his loan to the defendant. And this he is ready to verify, and to make oath in proof thereof, when, &c.; *158wherefore he prays judgment, &c. .The plaintiff demurs, and the defendant has joined in demurrer.
Considered as one plea, — and probably all the averments, and the plea of usury, are to be taken as one plea, upon the whole of which judgment is prayed, — this plea is unquestionably bad. It is not triable in the whole by the mode of trial to which the defendant refers himself, and which is only suitable to the plea of usury. And a plea is bad, if there is no lawful mode of trying it, or if it is referred to an improper tribunal; as where matters of record are pleaded, and the plea concludes to the country.
In a more general view, however, this plea may be considered as an attempt to answer an endorsee of a promissory [ * 193 ] * note by a plea of usury, and to hold him to the statute mode of trial.
The facts stated in the averments preceding, and in the distinct plea of usury objected to the note demanded, are all proper to be given in evidence to the jury, in a trial of this cause upon the general issue. But a trial by a jury of a part of a plea, or of averments essential to the ultimate defence; and if found for the defendant, then a trial of the substantial defence by his oath, according to the form of the statute, would be novel and wholly unprecedented.
This statute mode of trial, extraordinary in itself, and in derogation of the common law, is to be permitted in the particular case >nly, for which the legislature have provided it; that is, in a suit between the creditor and debtor; which has always been understood to mean the original creditor and debtor in the contract. They must be parties to the action ; and in the nature of the thing (hey only can attest to the circumstances, from which the controversy is supposed to arise, and to which the oath to be tendered, and to be taken, by one or both of them, refers.
The opinion of the Court is, that the plea is bad and insufficient, and that the plaintiff have judgment.