The Earl of Suffolk v Green et Al'
| Jurisdiction | England & Wales |
| Judgment Date | 09 August 1739 |
| Date | 09 August 1739 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 286
HIGH COURT OF CHANCERY
[450] Case 207.-The earl of suffolk v. gkeen et aF. August the 9th, 1739. S. C. 2 Eq. Cas. Abr. 79, pi. 14. Bill brought to perpetuate the testimony of witnesses to a bond charged to be usurious, and alledging that the defendant Green, whom the plaintiff wanted to examine, was very aged and infirm. Green, who was a nominee only in the bond, demurred, as the bill sought to subject him to a penalty, and also as plaintiff does not offer to pay what is really due. If demurrer had stopt at the first part, it would have been good, but as it goes to the perpetuating the testimony, it is bad, and over-ruled, but without prejudice to the defendant's insisting on the same thing by way of answer. The plaintiff brought his bill to perpetuate the testimony of witnesses to a bond, entered into by the plaintiff's ancestor, charging that the defendant Green, whom the plaintiff wanted to examine, was very aged and infirm, and insisted in his bill, that the bond was entered into on an usurious contract, the defendant being to have 10 per cent. The defendant demurred, for that the bill sought to subject him to a penalty, and that, on the plaintiff's own shewing, there was a great sum really lent, but the plaintiff does not offer to pay what is really due to the defendant. For the plaintiff was cited the case of Shirley v. Earl Ferrers, 3 Wms. 77, where a bill was brought to perpetuate the testimony of a witness, for fear he should die during a long vacation, and he was ordered to be examined de bene esse, where the thing examined into lay only in the knowledge of the witness, and was a matter of great importance, tho' the witness was not proved to be old and infirm. The defendant Green was only a nominee in the bond, and the beneficial interest in one Peers. Lord Chancellor. So far as the present bill prays the defendant to put in an answer, so far it is a bill of discovery, for the answer must necessarily go to the usury charged in the bill. The defendants have demurred to so much of the bill as seeks any discovery, and to perpetuate the testimony. As to the first part, that it would subject the defendants to a penalty, the demurrer is proper, and if it had gone no further, must have been allowed as an usual case. For as to the objection,that the defendant Green will lose nothing by the discovery, as he has no interest; a trustee has as much the benefit of the pleading of...
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