
    DENTON v. BUTLER & STEVENS.
    July 20, 1896. By two Justices.
    Complaint on note. Before Judge Sweat. Ware superior court. November term, 1895.
    A promissory for $1,000, dated November 17, 1893, and due at thirty days, containing a waiver of homestead, etc., was executed by Spence & Co. to the South Georgia-Bank of Waycross, and was indorsed by W. M. Denton. After it fell due it was assigned by the bank to the plaintiffs without recourse. Suit upon it was defended by Den-ton, on the ground that he was a surety and was discharged, by usury having been taken by the bank. . The court directed a verdict for the plaintiffs, and overruled Denton’smotion for a new trial.
    The member of the firm of Spence & Co. who signed the-note testified: The indorsement was an accommodation indorsement. The makers discounted the note, and paid ten per cent, discount. No one was present at the time except the cashier and myself. Denton was not present, and I am not positive that he knew I was paying ten per cent, to-discount it. I prepared the note, took it to Denton and had him to indorse it as an accommodation indorser, and did not tell him wihat discount I proposed to- allow tbe bank. I do not know whether or not he had notice of the fact that we were paying ten per cent. I believe he knew we were doing business with, tbe bank. I do not know that be knew wbat tbe bank’s rates were. I don’t tbink I ever beard bim say. I don’t remember ewer fo bay© discussed with, bim our arrangements about raising money at tbe bank. I am not prepared to swear that be did not know that w© were going to discount it and pay ten per cent, interest.
   Simmons, C. J.

1. A surety upou a promissory note secretly' tainted with, usury, of which fact he had no knowledge, is discharg.ed from liability if it contained a waiver of homestead. This is so because the usury made the waiver void and thus, rendered the surety’s risk greater than it would otherwise have-been. Lewis v. Brown, 89 Ga. 115; Harrington v. Findley, Id. 385; Howard v. Johnson, 91 Ga. 319.

2. In an action on such a note it is incumbent upon the plaintiff,, in order to hold the surety liable, to prove affirmatively that, he signed the note with knowledge of the usury.

Judgment r&wrsed.

■Leon A. Wilson>, for plaintiff in error.

John C. McDonald, contra.  