Opinion
(June Term, 1866.)
A bill had been filed to obtain a discovery in aid of a plea of usury, and the defendant demurred thereto; afterwards, the Act of 1865-'6, c. 24, repealing the former act upon usury, and the Act of 1865-'6, c. 43, upon the subject of evidence, was passed: Held, that the bill should be dismissed with costs.
ORIGINAL BILL, for a discovery in aid of a defense at law upon the plea of usury, filed to Spring Term, 1861, of COLUMBUS. At Spring Term, 1862, the cause was set down for argument upon bill and demurrer, and transferred to this court.
No statement of the contents of the pleading is necessary.
Strange, for the complainants.
Person and Leitch, for the defendant.
This is a bill for a discovery to aid the defense on a plea of usury to a suit at law upon a bond for the payment of money. The defendant demurred to the bill, and assigned as causes therefor that the discovery would expose him, first, to a forfeiture of the land upon which the suit at law is brought, and, secondly, to a penalty (17) of double the amount loaned. In reply, the counsel for the complainants admitting that the demurrer would be good but for a late Act of 1865-66, ch. 24, which repeals the act concerning "Usury" in the Rev. Code, ch. 114, and takes away both the forfeiture and the penalty, insists that the grounds of the demurrer are thereby removed. On the contrary, the counsel for the defendant contends that, supposing that were so, which he does not admit, another late act has made the bill for the discovery unnecessary, by giving the complainants a right to examine the defendant as a witness upon the trial of the suit at law. Laws 1865-66, ch. 43.
We are of opinion that the demurrer was good when it was put in, and ought to have been sustained; and that if the late acts, referred to by the counsel respectively, have any effect upon the case at all, it is to render the discovery sought by the bill unnecessary, because the plaintiffs have a much better remedy by the power given to them of examining the defendant on the trial at law.
The demurrer must be sustained, and the bill.
PER CURIAM. Dismissed with costs.
(18)