atkins case the earl of suffolk v green et all August the that SC Eq Cas Abr  pl bill bring to perpetuate the testimony of witness to a bind charge to be  usurious and allege that the defendant green who the plaintiff want to examine  be very age and infirm green who be a nominee only in the bind demurrer as the  bill seek to subject he to a penalty and also as plaintiff do not offer to pay  what be real due if demurrer have stop at the first part it will have be good  but as it go to the perpetuate the testimony it be bad and overrule but  without prejudice to the defendant insist on the same thing by way of answer  the plaintiff bring his bill to perpetuate the testimony of witness to a bind  enter into by the plaintiff ancestor charge that the defendant green who the  plaintiff want to examine be very age and infirm and insist in his bill that  the bind be enter into on a usurious contract the defendant be to have pound  per cent the defendant demurrer for that the bill seek to subject he to a  penalty and that on the plaintiff own show there be a great sum real lend but  the plaintiff do not offer to pay what be real due to the defendant for the  plaintiff be cite the case of Shirley v earl Ferrer wms where a bill be bring  to perpetuate the testimony of a witness for fear he shall die during a long  vacation and he be order to be examine de bene be where the thing examine into  lie only in the knowledge of the witness and be a matter of great importance  though the witness be not prove to be old and infirm the defendant green be  only a nominee in the bind and the beneficial interest in one peer Lord  chancellor so far as the present bill pray the defendant to put in a answer so  far it be a bill of discovery for the answer must necessary go to the usury  charge in the bill the defendant have demurrer to so much of the bill as seek  any discovery and to perpetuate the testimony as to the first part that it  will subject the defendant to a penalty the demurrer be proper and if it have  go no further must have be allow as a usual case for as to the objection that  the defendant green will lose nothing by the discovery as he have no interest  a trustee have as much the benefit of the plead of this court as he that have  the equitable interest nay the cestuique trust be entitle to have the  privilege maintain by the trustee atkins but as to the other part of  perpetuate the testimony the demurrer be bad for the plaintiff be entitle to  perpetuate testimony notwithstanding his not offer to pay and there be no  certain distinction lie down where a man be forbid to perpetuatete testimony  as to personal demand against himself so far as this if prove relate to the  loss of the debt so far it may be call a penalty but a man may bring a bill to  perpetuate testimony in many case where he can bring a bill for relief without  wave the penalty as in waste or in the case of a forge deed or in the case of  insurance after commission to examine witness beyond sea as to fraudulent loss  and yet in many case fraudulent loss be subject to a penalty even sometime  felonious this bill be to perpetuate testimony to a plain fact what the  consequence of that fact be be of another consideration this demurrer be bad  in part must be overrule for it be not like a plea which may be allow in part  but a demurrer bad in part be void in toto Huggins v the York building company  post vol baker v Pritchard post vol dorm v fortescue post vol earl of Derby v  duke of Athol Ves Metcalfe v Harvey ibidem bishop of sodor and man v earl of  Derby Ves note there can be two demurrer to the same bill Bancroft v Wardour  bro Charles Rep nor can there be a save of any thing on a demurrer Gregor v  Molesworth Ves and can be separate his lordship therefore hold the demurrer to  be insufficient and order the same to be over rule but without prejudice to  the defendant insist by way of answer atkins er p against make any discovery  touch the usurious contract charge and suggest by the bill anon Eq Abr pl  Chauncy v Tahourden post vol Harrison v Southcote post