
    W. S. Nicholls v. Thomas C. Wright.
    It is usury to take two and a half per cent, commission, besides the usual bank discount on a draft at forty-five days to renew a like draft which had been discounted by the plaintiff at the same rate, and which had been drawn to raise money upon, and had become payable to the plaintiff.
    The drawer of an inland bill of exchange, is not a competent witness in an action against the acceptor, to prove that it was given for an usurious consideration.
    Assumpsit against the acceptor of a draft for $200, dated January 11,1834, payable forty-five days after date, drawn by Richard Wright, payable to his own order, and by him indorsed, in blank. Defence, usury.
    
      Mr. Redm, for the defendant,
    offered to examine Richard Wright, the drawer and indorser of the draft, to prove the usury ; and cited Gaither v. Lee, in this Court, at June term, 1820, (2 Cranch, C. C. 205.)
    
      Messrs. Key and Dunlop, for the plaintiff,
    objected that a party to an instrument, cannot be a witness to invalidate it. The Supreme Court of the United States in the Bank of the United States v. Dunn, 6 Peters, 51, overruled the doctrine of Jordaine v. Lashbook, 7 T. R. 601, and set up that of Walton v. Shelley, 1 Id. 296. •
   The Court

(Thruston, J., absent,)

rejected the witness, upon the authority of the Bank of the United States v. Dunn.

The evidence was, that this draft was given to take up a like draft at sixty days, which had been drawn and indorsed by the said Richard Wright, and accepted by the defendant to raise money upon, and which the plaintiff had discounted, by retaining the usual bank discount for sixty-four days, and a commission of two and a half per cent.', and paying to R. Wright $192,87. When that draft became payable, the plaintiff agreed to discount this new draft at forty-five days, upon the same terms, namely, the usual bank discount, and a commission of two and a half per cent., and refused to allow more favorable terms; the drawer agreed to them, and it was accordingly discounted by the plaintiff on those terms.

The Court, (Thruston, J., absent,) on the prayer of the defendant’s counsel, instructed the jury, in effect, that if they found the facts to be so, the transaction was usurious, and the plaintiff could not recover thereupon.

Verdict for the defendant.  