
    John Harmon v. Joseph R. Arthur.
    Columbia,
    May, 1828.
    In an action upon a promissory note against a surety, the principal, being released by the surety, is a competent witness, at common law, to prove the note usurious.
    Tried before Mr. Justice Gaillard, at Columbia, Spring Term, 1828.
    This was an action of assumpsit on a promissory note, payable to plaintiff, made by Daniel Morgan, and signed by defendant as his surety. The defendant offered Morgan as a witness to prove the note usurious, proposing to release him from his liability over: He also offered to shew, that Morgan had made an assignment, under the prison bounds act, of his whole estate for the benefit of, his creditors, and that he was utterly insolvent. The presiding Judge held, that Morgan’s incompetency, as a common law-witness, was not removed by the release, nor by the assignment and proof of his insolvency; and the plaintiff being admitted under the act of 1777, and denying the usury on oath, Morgan’s testimony was altogether excluded. After verdict for plaintiff the defendant moved for a new trial, on the ground, that Morgan was a competent witness at common law, independently of the usury act; and that his testimony was improperly rejected.
    Gregg, for the motion,
    cited 2 Stark. Ev. 4 part, 298, note 2.. Am. Ed. Bayley on Bills, 371. Knight?;. Packard, 3 M‘C. 71. Motte v. Dorrell, 1 Id. 350. Bent v. Baker, 3 T. R. 32. Carter v. Pearce, 1 Id. 163. Riddle v. Moss, 7 Cranch, 206.
    p_ y 285.
    Preston, contra.
    
   Nott, J.

delivered the opinion of the Court.

It does not appear upon what ground the witness in this case was rejected. If it was upon the ground, that he could not be permitted to invalidate an instrument which he had subscribed ; that doctrine has been so often considered, and so long exploded, both in this country, and in England, that it would be a waste of time to refer to the cases oh the subject. If it was upon the score of interest, I do not see where the interest lies. He was released by his principal,' so that there could be no recourse to him from that quarter. The result of this ease could not affect ^ 0f f,he witness to the plaintiff on the note. I am of opinion, therefore, that the objection went only to the credit of the witness, and not to his competency; and that a new trial , , , \ must be granted. ¶

Motion granted.  