Isaac W. Mitchell, Appellant, vs. Frederick R. Cotton, Executor of John W. Cotten, Appellee, 3 Fla. 134

LANCASTER, J. This cause was before this Court by writ of error, at the January term, 1848 — see Report of that year from page 136 to 158,-inclusive. It is now again here by appeal from Leon Circuit Court; but the questions raised by the bill of exceptions, which have been made part of the record in this cause, are very different from those then presented.

After this case went back to the Circuit Court, upon the production of the mandate of the Supreme Court, it was ordered by the Court, in pursuance of said mandate, that the judgment theretofore rendered by the Circuit Court in this cause be reversed and set aside, and that the cause be docketed, and such further proceedings be had therein, as are in conformity, &c.

After this cause was so docketed, and before trial, the defendant by his attorney moved the Court for leave to file two additional and amendatory pleas, to wit: A plea of the statute of limitations, and a plea averring that the promises and undertakings of John W. Cotten, defendant’s testator, and on which this suit was brought, were made as surety of one Henry Doggett, and alleging that, for a valuable consideration given by Doggett, the principal, to Mitchell, the plaintiff, time was given, or a credit extended, without the knowledge or consent of defendant’s testator, J. W. Cotten.

After argument, the pleas were allowed by the Court, and the plaintiff by his counsel excepted thereto. And it is assigned for error, that the Court erred in permitting defendant to amend his pleadings, by filing the pleas before mentioned. The act of November 23d, 1828, sec. 50, see Thompson’s Digest, 332, provides : “ The Court may, in its discretion, give leave to a party to amend his declaration, or other pleadings, at any time before the case is submitted to a jury;” but it must be done instanter, and if of substance, the adverse party has a right to a continuance.

The record shows, after leave given, the pleas were filed on the same day, to wit, instanter ; and the record does not show that any continuance was asked by plaintiff, by reason of the filing of said pleas. It was contended that the Court must, in any such case, exercise a sound discretion, in permitting the amended pleas to be filed — or, otherwise, it will be subject to reversal in this Court.

It might be a sufficient answer to this objection to say, the record does not state the circumstances or reasons on which the Court exercised its discretion of permitting the pleas, by way of amendment, to be filed, and in the absence of such reasons, this Court will presume the discretion of the Circuit Court was soundly exercised. But the question was considered by this Court, in the case of Stewart & Fontaine vs. Bennett, 1 Fla.

Reps., 446, and it was there held, that, after a “ new trial, the pleadings of both parties can be amended by leave of the Court.” Now, after the former judgment of the Circuit Court, in favor of defendant, was reversed and set aside, the case docketed, and further .proceedings ordered, it seems obvious that both parties could look to nothing but another, or new trial, and the -case stood, in all respects, precisely like one on which a new trial had been ordered. The parties, therefore, had a right, by leave of the Court, to amend their pleadings, unless the decision in the case of Stewart & Fontaine vs.

Bennett, is erroneous ; but, on looking into that decision, we are inclined to think it correct, and to regard it as authority. From what has been said, it will be perceived that this Court is disinclined to entertain or allow objections to the rulings of the Circuit Court, in matters appertaining to the pleadings, where a discretion is given them by law, and we might cite much authority for a similar practice in other Courts. We are, therefore, of opinion the exception we have been considering .was not well taken, and do overrule it.

The action in this case is founded on a promissory note, in the words following, to wit: “ On or before the 1st day of January next, we, or either of us, promise to pay Isaac W. Mitchell, or order, fifteen thousand nine ihundred and fifty-five dollars, with ten per cent, interest from date, for value received, this the 2d of January, 1841. (Signed,) “ H. DOGGETT, “ J. W. COTTEN.” The declaration of the plaintiff contains two counts — the first is a special count on the note above set forth, and the second contains the common money counts, and account stated.

To this declaration, there were at the original trial eight issues joined, two pleas having been demurred out — all which is fully stated in the report of that case in the year 1848, at page 136-7, and for brevity, is here referred to. At the late trial, and from which this appeal is had, all the issues of fact in the former trial, and the two others in this opinion before noticed, came on to be tried. At the trial, plaintiff, as appears by the bill of exceptions, offered in evidence the note herein before set forth — a letter from John W. Cotten to Dr.

Mitchell, the plaintiff,post-marked Tallahassee, Fla., Dec. 3, paid — 10 cents, and dated 25th November, 1844, and also the preecipe, showing the commencement of the original suit, to wit, January 8th, 1845. The defendant then offered sundry depositions and exhibits, and the testimony of sundry witnesses sworn to in Court, which may be referred to herein, but for brevity, will not be set out.

It is contended “ in limine,” by defendant’s counsel in this Court,that the note of 1841 (before set-forth) and the special count of the declaration thereon, are not longer to be considered as constituting' a ground of recovery for plaintiff, because (as he says) of a waiver and abandonment of that note and count on the former trial, and by' the leading counsel at the last trial.

The only matter on the record touching a waiver by the plaintiff’s attorney, will be found in the-note appended to the bill of exceptions at the request of defendant’s' counsel, also signed by the Judge, and made part: of (the record'and excepted to by defendant’s counsel. On the former trial, by reference to that record, it appears the-Court instructed the jury, that the counsel for the plaintiff did not ask-a recovery on the special count on'the note, having conceded he-could not recover thereon. And this, we apprehend, .is as much as= he at any time intended to admit.

It was his intention, which Kehas followed with unwavering fidelity, to recover on the commom counts, and whether he really entertained the opinion, he could not recover on the note and special count, or whether he desired to avoid. that note, the interest of which by the testimony, he knew to be tainted with usury, and by recovering the consideration for which the note was given, on the common counts, to have interest divested of. usury, from the date of that consideration, up to the time of judgment, it is perhaps not material to inquire; but, admitting that counsel thought and conceded he could not recover on the special count, and the plaintiff’s other counsel thought he could, and insisted on such recovery before the jury, to which insisting defendant’s counsel were permitted to reply, and one of them did reply, ought such an admission to discharge and defeat any legal liability or obligation of the defendant, if plaintiff’s counsel was mistaken in point of law, as to his client’s rights ?

In the case of Colledge vs. Horn, 3 Bingham, 199, where it was sought to introduce proof of an admission by plaintiff’s counsel, and the testimony had been ruled out: Best, C. J., says, “ the question is one of great difficulty, and I avoid saying any thing on it until we have all the facts before us.

At present, it does not appear whether or not the plaintiff was in hearing of the statement made by the counsel, or how far that statement was authorized.” In the same case, Burroughs, J., says: “ parties are every day bound by the acts and declarations of their counsel; if the plaintiff was in Court, heard what his counsel said and made no objection, I think he was bound.” The other two Judges gave no opinion, but if we are to collect the law from this authority, which was cited by defendant, it seems that admissions made by the counsel, of a party, to bind that party, must be made in his presence and without objection.

In the case of Young vs. Wright, 1 Campbell’s N. P. C., 140, Lord Ellenboro said, “ if a fact is admitted by the attorney on the record, with intent to obviate the necessity of proving it, he must be supposed to have authority for this purpose, and his client will be bound by the admission, but it is clear that whatever the attorney says in the course of conversation is not evidence in the cause.” And Greenleaf on Evidence, as referred to, is to the same effect.

The attempt here is not to bind the plaintiff by any admission of fact made by his attorney, to obviate the necessity of proof; but to bind him by his admission of law, wherein he concedes he could not recover on the note sued on and special count in his declaration.

Whether he could recover on that count, is a question of law, and we presume it will not be seriously contended that admissions of counsel of the law, where^t.here happens to be an error in the admission, can make the’jaw^ The'record abundantly shows, notwithstanding the admissiohr made, mat the note sued on was read in evidence before the jury, that one of plaintiff’s counsel maintained his right to recover on that note, and under the circumstances, the Court permitted plaintiff to claim before the jury on either and on both counts, extending permission to defendant’s counsel to argue again before the jury, which one of them actually did.

These occurrences do not, this Court is of opinion, amount to any waiver or abandonment of any legal right of recovery by the plaintiff, and ought not to bind him, as by one of his counsel he was still asserting his right to recover on the note of the second January, 1841. We shall next inquire whether that note was and is good and valid in law, and whether plaintiff is entitled to recovery thereon. For these questions are raised by the record and exceptions sent here for review. The note is the joint and several note of John W.

Cotten and Henry Dogget, and is expressed to be for value received ; and no question is raised on the record touching its execution, but every where in the record it is treated as the note of Henry Doggett and John W. Cotten, so far at least as their signatures to it are concerned. Suit was brought on that note by plaintiff, Mitchell, vs. H. Doggett and John W. Cotten, on the 8th of January, 1845, as appears by the praecipe in evidence in this suit, and as appears by the statement of that case in 1 Flor.

Reps., 365. “ Cotten, dying before trial, the suit abated as to him, but continued as to Doggett.” In the decision of the case of Mitchell vs. Doggett, 1 Flor. Rep., 373, the question of usury being raised, this Court said “ by the letter and spirit of the statute, whenever illegal interest is taken or contracted for, the whole interest is void.” The 3d

section of the Act of February 12th, 1833, Duval’s Laws, 79, on which this decision was given, is in these words: “ That when any note, notes, bond or bonds, shall or may be upon, or on account of any usurious contract, the interest on the same shall be void, and the obligor or obligors forever exonerated from paying the same.” It is worthy of remark as distinguishing this statute from almost all others in other States or countries, that while others declare a usurious contract wholly void, this provides and declares the interest only shall be void, carefully abstaining from any provision declaring the contract for the principal sum void on which served.

The decision of the point 1 ■Supreme Court in that case, was str and therefore sound. These views were again sustained by this Court at January term, 1848, in the case of Mitchell vs. Cotten. The learned counsel for defendant, in their argument of this case, seem to have lost sight of the manifest distinction between other statutes of usury, where it is provided that the whole contract shall be void, and our’s in which it is only provided the interest shall be void..

Now a provision which, for usury, makes the interest void, excludes-the idea of making the principal void, for expressio unius exclusio est' alterius. But counsel for defendant, in this case, now and in 1848,. and in the former case of Mitchell vs. Doggett, gave the same construction to the statute of usury, we now seek to establish, by contending that the note of the 2d of January, 1841, given by Doggett and Cotten to Mitchell, and on which the-special count in the declaration in this case is founded, is good as against Doggett, the principal, but void as to Cotten, the security.

Now if our statute made the whole contract void, the note as against Doggett, would be void,, and consequently void as against the surety also.

But it is not denied in this case, that at the time of taking the note of 1841, although on the face of it, it was payable on or before the first of January next thereafter, with ten per cent interest from date, (which at the time of the contract was lawful) there was at the time of making said note • a contract made by Mitchell and Doggett, that over and above the-interest mentioned in the note, Mitchell was to have the further rate of two and a half per cent, additional interest, which was usurious,. and that on the same- day Doggett executed another note to Mitchell for $398 87 — 100, being the interest on the principal sum for twelve months at two and a half per cent.

Doggett says, however, and it is nowhere controverted, that the usury in his contracts with Mitchell began when he executed the note declared on in this suit, and gave the note for $398 87c., above mentioned. It seems that the sum of fifteen thousand nine hundred and fifty-five dollars, mentioned in the note declared on, was due to the plaintiff' by defendant on account of a prior indebtedness, at the day of the-execution of that note, free from usury, if the uncontroverted testimony of Doggett, one of the obligors, is to be relied on.

Upon which-, state of case, under the statute of usury, we have no hesitation to decide that both obligors as such, became at the time of executing the note declared on, jointly and severally legally bound to the plaintiff,. Mitchell, for the principal sum named in said note, but for no interest whatever if the interest reserved (which seems to be admitted) was usurious.

The question is raised in this case, that upon the note sued on, Cotten was only a surety for Doggett, the principal, (which from the testimony of Doggett and the course of the argument, we think appears manifest was the fact,) and as such surety his rights were different from those of his principal, and that a concealment from him of the terms of the principal contract prevents any obligation arising 'from the engagement as surety, and renders the engagement a nullity.

Upon reference to Story’s Equity Jur., 329, referred to by defendant’s counsel, we find the doctrine laid down thus: “ Any concealment of material facts, or any express or implied misrepresentation of such facts, or any undue advantage taken of the surety by the creditor, either by surprise or by withholding proper information, will undoubtedly furnish sufficient ground to invalidate the contract.” And at page 330, sec. 225, same book, the doctrine is stated in a more general form, thus, “ that if a creditor does any act injurious to the surety, or inconsistent with his rights, or omits to do any act when required by the surety which his duty enjoins him to do, and the omission proves injurious to the surety, in all such cases the latter will be discharged.” The distinction between the position of defendant’s counsel, and the authority of Justice Story, just cited, is a plain one.

The counsel says “ the concealment of any of the terms of the principal contract.” The authority referred to, in substance says, the concealment of material facts by which the surety may be injured, will furnish sufficient ground to invalidate the contract, and we think in reason as well as authority, the doctrine as laid down by Justice Story, should prevail. Why should a surety in matters between his co-obligor and his obligee which cannot possibly injuriously affect his interest and his obligation, insist on being informed ?

We have looked into a number of authorities cited to see if the above principle has been at all extended to favor sureties. In Pidcock vs. Bishop, 3 Barn. & C., 606 : One Tickell applied to plaintiff, John Pidcock, to supply him with pig iron on credit in the usual way, and agreed if the plaintiff would supply him he would pay them the market price and ten shillings per ton extra, in liquidation of an old debt due the plaintiff, John Pidcock. John Pidcock said he must consult his partners, but he thought they would require a guarantee.

John Pidcock afterwards agreed the iron should be supplied, Tickell paying the company the market price and ten shillings extra to himself on his private debt, and requiring a guarantee for the price of the iron. Tickell furnished the guarantee of the defendant to be responsible for £200 value of pig iron to be delivered to Tickell, but the agreement of Tickell to pay John Pidcock ten shillings per ton, extra, on his private debt, was not communicated to the guarantor. In this state of case, Abbott, C.

J., says, “ I am of opinion, a party giving a guarantee, ought to be informed of any private bargain ipade between vendor and vendee, which may have the effect of varying the degree of his responsibility.” “ The effect (in this case) would be to compel the vendee to appropriate to the payment of the old debt a portion of those funds which the surety might reasonably suppose would go towards defraying the debt, for the payment of which he made himself collaterally responsible.

That being so, I am of opinion that the withholding the knowledge of the bargain from the defendant was a fraud upon him and vitiated the contract.” The other Justices concurred. But they all proceed on the ground that the contract as between vendor and vendee was valid, and increased the liability of the surety, which was a fraud on him. In the case of Jackson vs.

Duchain, 3 D. & East., 553, Ashurst, J., said: “ It is clear, both on the principles of law and equity, that when any friend advances money, to relieve another person from the pressure of his necessities, and the parties interested enter into a. private agreement, over and beyond that with which the friend is acquainted, such agreement is void in law, as being a fraud on such friend.” Here it is to be observed, that Welsh, who was desirous of benefiting his friend, agreed to advance £70, which he understood to be the full purchase money, (for certain goods,) for such was the representation made to him, and £70 is expressed in the bill of sale to be the consideration.

But now it turns out that the defendant was to give two promissory notes for a further sum, under a private agreement between her and the plaintiff, to which Welch was not a privy, and which, if he had known, he would not probably have advanced his money. This, therefore, was a fraud on him ; and the principles of analogous cases go to show that this private agreement between plaintiff and defendant cannot be enforced,”— The other judges concurred.

To apply the decision of this case to the one under consideration, it would make Doggett’s extra note for $398 87 fraudulent as to Cotten, if he was not privy to it, and, therefore, as between Doggett and Mitchell, it could not be enforced. But our statute goes further, and declares that if that note was given for usurious interest, the whole interest shall be void, which diminishes Cotten’s liability. It is worthy of note here, the advancement made by Welch, the principal, is not declared fraudulent, or void, but only the secret contract, to which he was not privy.

The next case to be considered is the United States vs. Robert Tillotson, 1 Parris C. C. R., from 306 to 335. The case in substance is this : One Hopkins had contracted with an agent of the United States to construct a fortification in the vicinity of Mobile Point, according to the terms, conditions and stipulations of a written contract, reference to which was to be had — and he dying, the right of performing his contract was assigned to his legal representative, one Hawkins.

Whereupon Hawkins, with the defendant, Tillotson, and one Nicholas Gouverneur, as his sureties, entered into bond to the United States for $150,000 penalty, with the following condition : “ That if the said Hawkins shall well and truly perform, or cause to be performed, all the covenants, undertakings and engagements contained in the said contract, so made as aforesaid, by the said Benjamin W.

Hopkins in his life-time, for the construction of the said fort, which remains to be fulfilled, and shall also faithfully and well account to the War Department of the United States, for all sums of money heretofore advanced by the said United States, under and in virtue of the last mentioned contract, and also for such further advances as may be hereafter made to facilitate the execution of said contract, then this obligation to be void,” &c.

About seven months after the foregoing bond was made, Hawkins, the contractor, entered into a new contract with the United States, (without the privity of the defendants, his sureties,) as the Court says, materially changing the terms of the contract of Hawkins, for which they were bound, which new contract is set out in the report of the case, at page 312 to 316 ; and it is only necessary to read the case, to see that the terms of the contract, for which the sureties were bound, were so materially variant, that, if the new contract was executed, the other could not be.

On this branch of the subject, Thompson, J. says : “ But whether 'this alteration was for the benefit, or to the prejudice of Hawkins, (the principal,) cannot enter into the question — this was a matter upon which the sureties had a right to judge for themselves, and it was not in the power of the plaintiffs to transfer the suretyship from •one contract to another, without the consent of the sureties.

The first contract became functus officio, so far as it was altered by the second“ but, admitting the first contract in part to remain in full force, the second was an essential alteration or modification of it, and cannot be binding on the sureties in this new shape ; such a rule would be placing it in the power of the principal to draw his sureties into responsibilities they never assumed, contrary to the law in relation 'to principals and sureties.” Again, at page 320, it is said — “ Sureties cannot be made responsible beyond the scope of their engagement.

Any agreement between the creditor and principal, which varies essentially the terms of the contract, without the ■consent of the sureties, will exonerate them from their responsibility; any new debt incurred, or the demand enlarged, or any act done to ■the injury and prejudice of the surety, will discharge him from all liability.” Again, at page 333, the same Judge says : “ The law is particularly watchful over the rights of sureties, and will not countenance any transaction between the parties that shall lessen the •ability of the principal to comply with his contract, or that shall alter the rights of the parties, or enlarge the demand, to the prejudice of the sureties.” The principles to be deduced from these authorities and the others referred to, which have been examined, but to avoid prolixity, will ■not be further mentioned, are not variant from those on this point extracted from Mr.

J. Story’s Eq. Jur. In all the cases it is fairly collectible, that the contract between the principal parties, of which ■a surety without privity can avail himself for his discharge, as between ■the principals, must be a valid contract. In the case before us, the surety, if) indeed, not privy, seeks relief from a contract which, as between the principals, was not valid ; and he seeks to make that invalid contract the ground of discharging him from the payment of a sum of money, which he validly bound himself to pay.

By the usurious contract for interest, which was illegal, Doggett, the principal, did not lessen his ability to comply with his obligation to pay that which was legal; neither are the rights of the parties altered or enlarged, to the prejudice of the surety, but to his benefit, for thereby he is discharged from the payment of all interest until judgment.

As to the surety, it is not different from what it would have been, had a release of all the interest been given by the-plaintiff to Doggett, one of the obligors — for the other would, as surety, be entitled to the benefit of it but it would be monstrous to say,, that such a release being given, without the privity of the surety, (the other obligor,) or a partial payment made, without his knowledge, would defeat his liability as surety, or obligor; every partial payment alters the rights of the parties, but not to the prejudice of' the surety — and whether he is a privy to it or not, as his liability is thereby diminished, his consent will be presumed.

Even in the case-we are considering, the consent of Cotten, the security, to the usurious transaction,.between his co-obligor and Mitchell, the plaintiff,, is to be presumed, as he thereby saves several thousand' dollars in interest he had contracted to pay. His counsel, however, place him-in the attitude of refusing to consent, because they insist on a release from his entire obligation; but failing of this, it is presumed they will insist on, as well as consent to, the other — as the simple interest to the 2d January this present year, will alone amount to $14,-359 30, at the rate specified in the notes.

The statute before recited provides, “ that, on any usurious contract, the interest shall be void, and the obligor or obligors forever exonerated from the payment of the same” — the penalty in this act extends as well to the one obligor as to the other, and enures to the benefit of both; but it-is the measure of redress for both. The argument has proceeded upon the assumption, that the contract of Mitchell and Doggett for usurious interest was concealed from Cotten.

Doggett testifies that there was a secret undertaking between himself and Mitchell for usurious interest, which was not made known to Cotten, but there was no bargain between witness- and Mitchell to keep it from his knowledge ; and to a cross interrogatory, he says Cotten may or may not have known of the secret stipulation of witness to Mitchell — did not learn it from witness, nor does he recollect ever to have- conversed with Cotten upon the subject — from which it is inferable, if Cotten did not know of the stipulation, it was rather inadvertent than intentional, as-nothing passed between the parties, manifesting a design to keep it from him.

We close our review of the point under consideration, by reference to our decision in the case between the same parties at the January term, 1848, see Report p. 148 — “ The rule undoubtedly is, that a surety is not to be held beyond the precise terms of his contract; that the creditor has no right to increase his risk without his consent. But in Tudor vs. Goodloe, 1st B.

Munroe’s Reports, 324, as cited in 2d Vesey Jur., 540, in note by Charles Sumner, it was held, that “ a promise by the principal to pay usurious interest in future, (the precise case before us,) is void, and does not operate to exonerate the surety, and this is in accordance with general principles.” And see further same case, p, 149, “ Where a surety which is given on a loan of money is valid at its creation, no subsequent agreement of the borrower to pay usurious interest or premium for the further forbearance of the loan will invalidate the original security, but the subsequent usurious interest will be void.” Crane vs.

Hubbell, 7 Paige’s Reps., 413. Mitchell vs. Doggett, 1 Fla. Rep., 374, 376, 377. We have been thus particular in giving, in a more extended manner, our views of the circumstances under which a surety will be discharged from his liability, because, although this Court at the former trial of this cause, in January term, 1848, expressed clearly and substantially, the same views and opinions we now assert, and again in the case of Mitchell vs. Doggett, above referred to; yet these views and opinions appear to have escaped the attention of the learned Judge before whom this cause was tried in the Circuit Court.

And that Judge gave the following instruction, number thirteen, which was excepted to by plaintiff’s counsel: “ If you shall be of opinion from the evidence, that at the time of entering into the note sued upon for $15,965, of January, 1841, signed by H. Doggett and J. W. Cotten, that J. W.

Cotten, was only security, and not primarily liable for the debt, by having received part of the consideration, another note was given by the principal for the sum of $ for past interest of said note, as part of the contract, but extending the same two and a half per cent, further, unknown to and without any communication with the security, so that he remained wholly ignorant that two and a half per cent, interest was in fact to be paid by his principal, instead of ten per cent., as agreed by the note executed by the two, that this in law is a fraud on the security, invalidates his note under agreement, and plaintiff has not a right to recover thereon.” The position assumed in the foregoing instructions, as law, are directly contrary to what is asserted in this opinion, as law, and to what, according to our best information and judgment, we believe the law to be.

We hold, therefore, the exception well taken, and that the opinion of the Court giving said instruction, must be reversed and set aside. There were other instructions asked by plaintiff and refused by the Court, and others not asked which were given by the Court, numbered 10, 12, 14, 15, 16, and the rulings of the Court thereon were excepted to by plaintiff’s counsel. These exceptions were elaborately discussed before this Court, but the decision of them is not deemed material to this cause.

At the trial of this case in the Circuit Court at November term, 1849, the jury returned the following verdict: “ We, the jury, find verdict for the defendantand the defendant’s counsel insists, this is evidence that all the issues were found for the defendant. At the trial of this case in the Circuit Court, the instruction, No. 13, above set forth, and there given, precluded the jury from finding a verdict for the plaintiff on the first or special count ofhis declaration.

Here there is a bill of exceptions made a part of the record, in which the whole testimony is embodied, together with the rulings of the Court, in which respect it is entirely unlike the case of Mitchell vs. Chaires, Ex’r., 2 Flor. R., 22. And we can have no difficulty in perceiving with the instructions as given, the jury without particular inquiiy as to the proof of any plea, felt bound to render the verdict they gave; nor can we suppose, with the evidence before them, they would ever have consented to the truth of some or most of the pleas pleaded in bar, but for the instruction given.

We think if an instruction was given to the jury as follows -; “ If, from the testimony, you are of opinion the note declared on in the first count of plaintiff’s declaration was executed by the defendant’s testator, as co-obligor and surety, and that an agreement was entered into between his co-obligor and principal, Henry Doggett, for usurious interest with the plaintiff Mitchell, on the note sued on, without his knowledge, the Court charges that such agreement for usurious interest, was a void contract, and from the day of such agreement made void all interest on the note sued upon, but did not injuriously affect Cotten, the surety, nor in any manner increase his liability to Mitchell, the plaintiff, nor diminish the means of his principal, Doggett, to pay and discharge said-note declared on, and said note remained' and remains a valid subsisting obligation, as well against Cotten, the security, as againstDoggett, the principal, for the principal sum named therein, but for no interest whatever.

And if you find the matters stated in the first part of this instruction, you will find a verdict for the plaintiff on the first count of the declaration for the principal sum named in the note, but for no interest.” Such an instruction,.for the reasons contained in this opinion, would, we think, be'lawful and right to be given.

It is therefore considered by this Court, and it is hereby ordered and adjudged, that the decision given herein* by the Circuit Court, and from which this appeal was taken, be reversed and set aside, that this cause be remanded for a new trial, and that proceedings be had thereon in conformity with the opinions- and principles in this opinion contained.