Denton v. Butler & Stevens , 99 Ga. 264 ( 1896 )

Simmons, C. J.

1. A surety upou a promissory note secretly' tainted with, usury, of which fact he had no knowledge, is discharg.ed from liability if it contained a waiver of homestead. This is so because the usury made the waiver void and thus, rendered the surety’s risk greater than it would otherwise have-been. Lewis v. Brown, 89 Ga. 115; Harrington v. Findley, Id. 385; Howard v. Johnson, 91 Ga. 319.

2. In an action on such a note it is incumbent upon the plaintiff,, in order to hold the surety liable, to prove affirmatively that, he signed the note with knowledge of the usury.

Judgment r&wrsed.

■Leon A. Wilson>, for plaintiff in error. John C. McDonald, contra.