Barnett v. Troutman , 9 Ga. 36 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] In Winkler vs. Scudder, (1 Kelly, 108,) this Court held, that the maker of a note, who is released, is a competent witness to prove usury in its consideration, in a suit by an indorsee against an indorser. Here, the action is by the payee against the security. Of course there can be no distinction in principle between the two cases.

In Starkweather vs. Mathews and others, (2 Hill's N. Y. Reps. 131,) this identical question is decided. The Supreme Court of New York there held, that in an action against the maker,of a note, and his accommodation indorsers, to which the defence was usury, that the former, upon being.released from all costs and charges on account of the suit, was a competent witness for the latter.

In the case before us — the maker not being sued, of at any rate, served — we are inclined to think that he was competent, even without a release. If the defence failed, he would be answerable to the security for the amount of the note; and if it prevailed, he would still be liable, as maker to the plaintiff. His interest was balanced. At any rate, there can be no doubt of his competency with the release.