
    Carman’s ex'r. vs. White et als.
    
    A party to anote who was sued on it and afterwards obtained his discharge under the •bankrupt law, is a competent witness after such discharge to prove the note usurious.
    Carman’s executor commenced suit in the Circuit Court of Wilson county, against Burton, Price, J. White, Ed. White, and L. White. Ed. White and J. White pleaded their discharge by virtue of a decree in bankruptcy, and a judgment was rendered in their favor. The other defendants pleaded usury, and introduced Ed. and J. White as witnesses to prove that the note sued on was usurious. The competency of the testimony was objected to, but was' overruled by the presiding Judge; and the plea being sustained by their testimony, a verdict, and judgmentwere rendered in their favor, from which the plaintiffs appealed.
    
      McDonald cited 1 Phillips’s Ev. 3; 2 Starkie, 581; Green-leaf’s Ev. 378; Walton, vs. Shelly, 2 Term, 296; 6 Peters, 51; 8 Peters, 12; 11 Peters, 86, 95; 12 Peters, 149; 2 Sumner, 235; 4 Mass. 156; 16 Mass. 118; 17 Mass. 122; 1 Metcalf, 416; 2 N. H. 212; 5 do. 187; 4Greenleaf, 191; 5 Greenleáf, 374; 6 Watts, 498; 10 Martin,' 18.
    
      Jordan Stolces, for defendants.
    The main, if not the only, question presented for the decision of the court in the record, is whether Edward A. White and John W. White, who were two of the makers of the note, and who had been discharged by the bankrupt law prior to the trial, were competent witnesses to prove that there was usurious interest included in.the note.
    1. Interest is the ground on'which their competency is attempted to be impeached. The general rule of evidence is thus laid down: “Will the witness either gain or lose by the direct legal operation and effect of the judgment, or will the record be legal evidence for or against him in some action.” Green, on Evi. 434.
    The interest must also be a direct, present, certain and vested interest, and not an interest uncertain, remote or contingent. Here the witnesses had no such interest. The certificate of discharge, by the provisions of the law operated as a full and complete extinguishment of their liability on the note, and hence they had not the remotest interest in the event of the suit.
    2. In cases somewhat analagous, it has been determined that the maker of a note, who has been released by the defendant, the payee and first endorser, is an admissible witness to prove the note usurious in its inception; Stump vs. Napier, 2 Yerg. Rép. 35; and that one joint maker of a note, who has confessed a judgment and been released by the other maker, is a competent witness to prove an usurious consideration. Tilford vs. Hayes, 2 Yer. Rep. 89. The release in these cases did not more effectually restore the competency of the witnesses, than does a decree and certificate in bankruptcy.
    3. But it has been well settled, that where the liability or interest, which would have rendered the witness incompetent, has been discharged .by the operation of law, as for example, by the bankrupt law or insolvent law, or by the statute of limitations, his competency is restored. Green, on Ev.4-77; 6 Cow. R. 484; 2 Sergt. & R. Rep. 119; 4 Hay’s Rep. 121; 3 H. & I. 249; 2 Hay. Rep. 290; 9 Eng. Com.L. R. 177; 22 do. 321,319, 290.
   Green, J.

delivered the opinion of the court.

The only question in this case, is, whether a party to a note may be a witness to prove the contract to have been usurious, after he has been discharged in bankruptcy.

The authorities cited for the defendants in error, establish beyond doubt, that such party is a competent witness; and if there had been no authority, this court would have had no doubt as to the correctness of the judgment of the Circuit Court.

“The rules and principles of evidence are founded in a peculiar degree upon practical good sense.” Carroll vs. State, 3 Hump. R. 321.

These witnesses could not possibly have any interest in the event of the suit, as it regarded the other parties, after they had pleaded their bankruptcy, and had a verdict in their favor.

And the technical objection to their competency, on the ground that, they were parties, to the action, did not apply, because after the verdict and judgment .in their favor, they ceased to be parties.

Affirm the judgment.  