
    H. S. McFatridge v. Herod Gore.
    Evidence — Claim for Usurious Interest Established by Assignor Before Release from Original Debt.
    An assignee of a claim for usurious interest, who was also surety for the assignor upon the original debt out of which the claim for usury originated, cannot establish the fact of the usury 'by the evidence of his assignor only, until he shah have released the assignor from respsonsibility on che original liability for money paid as his surety to the original creditor.
    APPEAL EROM MERCER CIRCUIT COURT.
    May 29, 1868.
   Opinion oe the Court by

Judge Williams:

Gore having paid, as security of Morgan, the judgment debt in McFabridge’s favor and Morgan insisting that there was a large amount of usurious interest included transferred to Gore his claim therefor.

Gore sued McFatridge and without releasing Morgan and over the objections of McFatridge established his claim by Morgan’s evidence.

Although this was but an equitable assignment and perhaps the assignor could not be held responsible to the assignee on the assignment yet there is nothing to show that Gore had released Morgan from his original liability for money paid to his use on account of the suretyship, therefore, every dollar which Gore could recover of and collect from McFatridge would go to reduce Morgan’s liability to him, hence Morgan was as much interested in the recovery as if he had sued in his own name. Before Morgan can be competent he must be released from responsibility to Gore on the original liability for money paid to his use to McFatridge.

Hooe, for appellant.

Polk, for appellee.

For this error the judgment is reversed with directions for a new trial and further proceedings consistent herewith.  