Weldon v. Ayers

■Cobb, J. 1. A surety upon a promissory note, who signs the same in ignorance of the fact that the contract between the payee and. the maker is one providing for the payment of usury, is not, because this fact is concealed from him, dischai'ged altogether from liability on the note. By a proper plea of usury the surety may prevent a recovery against him of a sum greater than the principal of the debt and legal interest thereon. 2. In the absence of a proper plea of usury, setting forth the facts necessary to determine the exact amount of usury contracted to be paid, so that the same may be set off against the amount sued for, a judgment in favor of the plaintiff for the latter amount is not contrary to law. 3. The verdict rendered in favor of the plaintiff in the justice’s court was, under the facts appearing at the trial, the only proper verdict that could have been rendered; and the court did not err in overruling the certiorari, which complained merely that the verdict was contrary to law and the evidence. Judgment affirmed. All the Justices concurring, except Lewis, J., absent. 0. G. Brown, for plaintiffs in error, cited 27 Ga. 565:; 63 Ga, 31; 77 Ga. 343; 81 Ga. 691; 89 Ga. 115, 385; 91 Ga. 319. James H. Shelton, contra.