Thomas v. Catheral , 5 G. & J. 23 ( 1832 )

Buchanan, Ch. J.,

delivered the opinion of the court.

Without a sufficient release it is superfluous to say, that Sarah Gorham, the wife of the maker of the note, was not a competent witness; and the paper stated to have been executed to Gorham as a release, and delivered to his wife, upon which she was admitted as a witness, not appearing in the record, we have nothing before us to show, that the objection to her competency was removed, and are therefore constrained to say, that for any thing appearing in the case, her testimony should not have been received.

' As to tbe second exception, whether in point of fact, usury was committed or not, was a question for the jury, upon the whole of the evidence submitted to them; and whether there was an usurious agreement or not, entered into between the parties, at the time of making the note, or of the endorsement on the back of it, by the defendant, yet if the note was made and endorsed, in execution of a previous usurious agreement, it was tainted with usury; and that was a matter proper to be left to the jury. And there being no evidence in the record opposed to that of Sarah Gorham, the court did right in refusing both of the prayers contained in that exception, neither of them having any connexion with the question of her competency. But as the court did wrong in admitting her testimony, which formed the subject of the first exception, the judgment must be reversed.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.