Harvey v. Ellithorpe

Breese, J. We do not deem either of the errors assigned on this record as well taken. The plea of the general issue having been withdrawn by leave of the court, there remained only an affirmative plea, throwing the burden of proof on the defendant, and necessarily giving him the opening and conclusion before the jury. This is the uniform practice, and is consonant to sound principle. He who affirms a fact, is bound to prove it— he is the actor, and entitled to all the privileges of that position. Wilson was the payee and assignor of the note sued on. Usury was set up as a defense. Our statute providing that the debtor and creditor may be witnesses evidently means those who occupied that relation, at the time the illegal contract was made, and if such creditor assigns the usurious note, it cannot deprive the maker of the benefit of his testimony. If it did, the law would' be rendered nugatory. However the general rule may be, disqualifying the assignor, it cannot apply when usury is pleaded. In this case the entire note was usurious —it was given for usurious interest, and the plaintiff knew it when he took it. The judgment is affirmed. Judgment affirmed.