| NY | Nov 5, 1847
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *85 There is another ground, besides those mentioned by the Supreme Court, on which Chapman was privileged from answering the questions put to him. It was one branch of the defence that the witness, being the teller of the bank, discounted the note after it had, with his knowledge, been offered for discount to the directors, and been refused by them. If this fact could be established, Chapman would not only forfeit twice the amount of the loan which he made, (1 R.S. 595, § 28,) but he would forfeit the debt itself. As the discounting of the note was expressly forbidden by the statute, there can be no doubt that the security would be void. A witness must speak, though the answer may establish that he owes a debt, or is otherwise subject to a civil suit; but he is not bound to speak where the answer may subject him to a forfeiture, or any thing in the nature of a forfeiture of his estate or interest. (2 R.S. 405, § 71; 1Phil. ev. 278; Mitf. Plead. 197, ed. of' 33; Livingston vs. Tompkins, 4 John. Chan. 432; Livingston vs. Harris, 3Paige 533, and 11 Wendell 329, S.C. in error.) As the answer of the witness might tend to establish facts which would work a forfeiture of the debt, he was not obliged to testify. This ground is of itself sufficient to establish the privilege of the witness; and as to this, the statute of limitations has no application.
The grounds on which the privilege of the witness was put by the Supreme Court are equally conclusive, unless a prosecution under the usury law, and a suit under the bank law for twice the amount of the loan, had been barred by the statute of limitations; and there is nothing in the case to show that *87 a prosecution, or a suit, or both of them, had not been commenced in due time. In all the cases where it has been held that the running of the statute took away the privilege of the witness, it expressly appeared, not only that the time for sueing or prosecuting had elapsed, but that no suit or prosecution had been commenced, or if one had been commenced, that it had been discontinued. Here the statute was not even mentioned on the trial. It may not have been necessary for the defendant to prove the negative fact that no suit or prosecution had been commenced. But if he intended to rely on the statute, he was at least bound to say so; and then the witness might have answered, that proceedings against him had already been commenced.
The witness claimed his privilege, and there was a primafacie case for allowing it. If there was any answer to that case, the defendant should have mentioned it, for the double purpose of allowing the truth of the supposed answer to be examined at the proper time, and of dealing fairly with his adversary and the Circuit Judge. A party is not at liberty to start a question, on a motion for a new trial, or in a Court of Review, which, had it been mentioned on the trial, might have received a satisfactory answer. This is a principle of every-day application, and there is nothing in this case which should induce a departure from it.
Concurrence Opinion
A president, director, cashier, clerk, agent, or any person in any way interested or concerned in the management of the concerns of any banking corporation, is prohibited by statute from discounting, or directly or indirectly making any loan upon any note, bill, or other evidence of debt, which shall have been offered to the directors of such banking corporation for discount; and every note, bill, or other evidence of debt, so discounted, or upon which any loan shall have been made by any of the persons aforesaid, knowing that such note has been so offered and refused, shall be utterly void. (1 R.S. 604, § 10.) The statute declaring the act of discount or loan unlawful, the note or bill would also be *88 void upon general principles. It is a settled doctrine that a contract prohibited by statute is void.
The defendants' counsel, among other things, stated to the jury, in opening the defence, that the note in question had been presented in the first instance to the Bank of Salina for discount; that the bank refused to discount it; that this was known to Elisha Chapman, who was at that time the teller of the bank; that the note was subsequently presented to the said Elisha Chapman, who, with full knowledge that the same had been presented at the bank and refused, discounted the note, and in so doing, deducted $10 from the face thereof under a corrupt and usurious agreement between him and the defendant, Pierce. Chapman was then called as a witness, and both under the plea of the general issue, as a mere witness, and under the notice annexed to and served with the plea, as plaintiff in interest, refused to answer any of the several questions put to him, urging, amongst other grounds, that such answers might form a link in the chain of testimony tending to expose him to a penalty or forfeiture.
Without discussing the questions whether Chapman, when called as a mere witness, and not as plaintiff under the usury law of 1837, was protected by that statute, or whether when called under the notice annexed to the plea of the general issue, as plaintiff in interest, before he can be compelled to answer and criminate himself, it must first appear that he is the plaintiff in interest; or whether for the reason that the statute of limitations had run both against the criminal offence of usury, and the forfeiture of twice the amount of the loan, under 1 R.S. 595, § 28, he was protected against the consequences of his testimony, I am of the opinion that the witness was privileged from testifying. Any one of the questions propounded might have formed one link in a chain of testimony tending to bring him within the statutory prohibition as to the discounting of notes by bank officers, and showing him guilty of an unlawful act, one of the consequences of which was an utter forfeiture and loss of the note. And this was a consequence from which the statute of limitations could *89 not save him. The rule is well settled that a witness is not required to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose him to any penalty or forfeiture; or when, by answering, a link may be added to a chain of testimony tending to such a result. The defendants proposed to shew a state of facts, in which Chapman was the guilty actor, rendering the note utterly void. They were therefore called upon to shew it without his aid. The act of 1837, authorizes the calling and examination of the plaintifffor the purpose of proving the usury, and excuses him from criminal prosecution; but I cannot agree to the doctrine advanced by the counsel for the defendants, that when called under that act, whether the interrogations propounded tend to subject him to a penalty or forfeiture, distinct from the question of usury or not, he is bound to answer.
The judgment of the Supreme Court should be affirmed.
GRAY, J. delivered a written opinion in favor of reversing the judgment.
All the other Judges were for affirming the judgment upon the ground taken in the opinion of WRIGHT, J., and first considered in the opinion of BRONSON, J., but without considering or passing upon the other questions presented.
Judgment affirmed. *90