Palmer v. Severance

8 Ala. 53

• Court: Supreme Court of Alabama
• Decided: January 15, 1845
• Status: Published

Opinion

ORMOND, J.

When the defendant is offered as a witness, under the statute to prove usury, he is competent to prove any fact which tends to establish the usury. He cannot be confined in his testimony, to the instrument upon which the suit is brought, but may prove other transactions connected with it; as that other notes existed, which have been cancelled, and the consideration of which entered into, and formed a part of the note sued upon.

From the ambiguous manner in which the facts are stated in the bill of exceptions, we are at some loss to know, what the point was, intended to be raised by the first charge. Presuming the fact to be, that the plaintiff acquired the note without knowledge of the usury, and that the defendants executed another note in lieu of it, the case of Cameron and Johnson v. Nall, 3 Ala. Rep. 158, is an authority in point, to show, that the substituted note, would not be affected by the original usurious consideration, but that the principal, and legal interest, might be recovered.

So in regard to the facts upon which the last charge of the Court is prayed. Understanding the bill of exceptions to state, that the promise of the defendant to pay principal and interest, if the holder would wait until the end of the year, was made to one who had acquired the note, by purchase, or otherwise, and not to the original payee,' the delay would be a sufficient consideration to entitle the holder to recover; as he might ^thereby lose his recourse upon the person from whom he obtained the note.

Such a promise, made to the person with whom the usurious contract was made, would not be binding on the promissor, as it would be without consideration.

From the interpretation we put upon the bill of exceptions, the Court erred in both the charges given to the jury, and its judgment is therefore reversed and the cause remanded.