
    George Chur v. George Keckeley.
    Charleston,
    March 1830.
    A verdict manifestly against evidence will be set aside; and even in doubtful cases, the discretion of the Court, as to refusing a new trial, will be controlled by the decided opinion of the Circuit J udge, that the verdict was against the evidence.
    The maker of a promissory note is not a competent witness for the indorser, in an action against him by the holder, when the note was indorsed for the accommodation of the maker. He is liable over to the indorser for costs, and therefore does not stand indifferent between the parties.
    Although the introduction of improper evidence is not a ground for a new trial, in behalf ofthe party who introduces it; yet where the party, confiding in the. strength of the evidence admitted by the Court, may have neglected to introduce other competent evidence of the same facts, which was in his power, the Court will not deny him an opportunity of repairing the error.
    Tried before Mr. Justice Richardson, at Charleston, May Term, 1829.
    Assumpsit asainst the indorser of a promissory note: de-fence, usury. Several witnesses were examined, who testified to usury in the inception of several notes of the same makef, tj)e defendant as indorser, and which were afterwards found bi l^le bands of the present plaintiff, none of which however were perfectly identified with the note now in suit. Samuel 1 ** Wharton, the maker, was examined by commission. The plaintiff objected to the reading of his depositions, on the ground, that be was liable over to the defendant for costs, and therefore interested. The presiding Judge overruled the objection, as the witness had been decided to be competent by the Court of Appeals, on an appeal from a former verdict in this very case. See 4 M'C. 397. The witness stated in his depositions, that the note now in question, was the last of several successive renewals of an original note, which the defendant had indorsed for his accommodation, and to enable him to raise money on it. This note he had negotiated at an usurious discount, and when it became due, he found it in the hands of the plaintiff. The plaintiff permitted him to renew it several times, requiring each time a payment on account of the principal, and $10, premium for renewing, in addition to the legal interest. When the present note became due, witness offered to renew it, but refused to pay the $10, premium ; and the plaintiff had it protested and put in suit.
    The plaintiff called no witnesses, and the presiding Júdge instructed the jury, that under the evidence the defendant was intitled to a verdict. They found, however, for the plaintiff; and the defendant now moved to set aside the verdict as contrary to law, and against the weight of evidence.
    Pepoon, for the motion.
    Rice, contra.
    
   Johnson, J.

delivered the opinion of the Court.

There can be no question, that exacting $10, in addition to the legal interest, as a premium for renewing a note, is in the very teeth of the statute against usury ; and if we take the evidence, as it is reported to us, it makes a very strong, and very clear case against the plaintiff: for there is not only a preponderance against him, but it strikes me, to use the language'of the brief, to be all on that side; and the decided opinion of the presiding Judge, that the verdict is against the evidence, would contml the discretion of this Court, even if the facts were more doubtful. On this ground alone, a new trial must be granted.

4 397.

iSut it has been objected, that Wharton was an incompetent Witness ; and that it would be no more than justice to the plaintiff, that the Court should strike out his testimony, in balancing the scales of the evidence, which would leave but a very slight presumption against the plaintiff.

On a former occasion the Court laid down the rule, in this identical case, that the maker was a competent witness, fit common law, to prove usury in the original concoctiou of a note, in an action against the indorser. But that was in reference to a supposed business transaction, and upon the ground, that the maker would not be liable over to the indorser, for the costs of the suit against him. It appears, however, that this was a mere' accommodation note, and that the defendant indorsed it, to enable the maker, Wharton, to raise money on it. No one ever consents to be bound for another, without the expectation of being indemnified, to the whole extent of the loss which he may sustain in consequence of it. From the nature of the contract between them, the principal is bound to anticipate loss to his surety in performing the obligation, which the contract, by which they became bound, imposes; and I can conceive of no case to which it would more aptly apply than between the maker and indorser of an accommodation note. The cases cited at thd bar clearly warrant such an application. See Jones v. Brooke, 4 Taunt. 464, Riddle v. Moss, 7 Cranch, 206, Hubbly v. Brown and Nichols, 16 Johns. 70, 3 M‘C. 78, note. Wharton had then a direct interest in the event of this suit, to the extent of the costs, and for that reason was clearly incompetent.

This conclusion does not, however, in my view, furnish any reason for refusing the new trial. I agree, that the introduction of improper evidence is not t^fepd ground for a new trial, in behalf of the party who introduces it: but here the defendant, confiding in the strength oljjMdence admitted by the Court, as competent, might have thd^pit it unnecessary to have adduced other evidence of the same facts, which might have been in his power; and to refuse him an opportunity of doing so, would be ' to suffer the error of the Judge, in a matter of law, to work ari injury. The motion in this case must therefore be granted.

Motion granted.  