Swinney v. Dorman , 25 Ala. 433 ( 1854 )

CHILTON, C. J. —

The circuit judge committed an error in refusing to allow the defendants, as a means of making out their plea of usury, to prove that payments had been made upon the notes which were cancelled when the note sued on was executed, these cancelled notes forming the consideration of the one in suit. The rule established by this court in Palmer v. Severance, 8 Ala. 53, allows the defendant, when offered as a witness to prove usury, to go on and prove any fact which tends to establish the usury. He is not confined to the note in suit, but may go behind it, aiid show other transactions connected with it; as that the original debt was for such a sum, — that so much was paid, and new notes given for the residue, and so trace the transactions down to the note declared on. Were the law otherwise, the statute, in many cases, would fail of its object. This was done in the case just cited : for the statement shows that the Circuit Court permitted the defendants “to prove the entire consideration, embracing payments made by them before their notes were given, which were but the renewal of other notes given for borrowed money and the correctness of this ruling was substantially affirmed by the decision of this court. — See, also, 6 Ala. 753; 13 ib. 127.

2. The defendants below moved to reject the answer of the plaintiff made to interrogatories exhibited to him under the statute. The grounds of the motion were, that the answers were evasive, irresponsive, and contained improper matter.— The objection, it will be observed, goes to the whole answer, and nothing specific is shown as a reason for holding all or any of the answers insufficient. We have often decided, in respect of depositions, that the court was not bound to regard vague and general objections, devolving upon it the duty of sifting the whole deposition to ascertain what particular portions should be excluded. The counsel must specify the answers excepted to, and the particular ground of objection.— A motion to exclude the whole of the answers, when a portion of them are full and correctly made, should be overruled.

3. We are of opinion, that the court also erred in refusing to permit the defendant Palmer to prove the usury in the transaction. The bill of exceptions states, that he had been jointly bound with the other defendant for the debt since its first creation ; that is, as we understand the bill of exceptions, Palmer was an original party with his co-defendant Swinney to the usurious transaction, and they both borrowed the money for the benefit of Swinney. The fact that as between the defendants themselves one occupies the relation of principal to the other, cannot prevent the other, when sued, from proving the usury pnder the statute. He is a party to the usurious bond or contract, and as such comes within the letter as well as the spirit of the statute. — Clay's Digest, p. 590, § 5. In the case of Paul v. Meek, 6 Ala. 753, the defendant was the endorse.r, and was held not to be a competent witness, as he was not a party to the original undertaking. The drawer of the bill, it was said, was, after being released, a competent witness; and the case was supposed not to fall within the mischief intended to be remedied by the statute. It is clear that that case does not at all conflict with the views here expressed. Here, two parties borrow money, or negotiate upon usury for the benefit of one. They are both parties to the contract, and competent to prove the usury under the statute.

Let the judgment be reversed, and the cause remanded.