Polkinghorne v. Hendricks

Campbell, C. J., delivered the opinion of the court. The legal import of the act of the appellant in writing his name on the back of the note payable to the appellee before its delivery to her, and to enable the maker to get the money from the payee, was to render him liable as an original promisor and co-maker of the note. He was a surety for the maker, Noonan, but the extension of time given upon pre-payment of interest, without the assent of the appellant, did not discharge him, because of the usury, which caused a forfeiture of all interest. Wherefore the forbearance was without consideration or legal obligation. Roberts v. Stewart, 31 Miss. 664. The case of Brown v. Rrophit, 53 Miss. 649, is not applicable because of the change in the statute as to interest. At the date of the transaction between the appellee and Noonan, taking more than ten per cent, interest per annum caused a forfeiture of all interest. [372] Code of 1880, § 1141. A result of this is that the interest paid in advance by Noonan was a payment of the-principal to that extent. That a special plea amounting to the general issue was formerly a ground for a special demurrer, but “ no pleading shall be deemed insufficient for any defect which could heretofore be objected to only by special demurrer.” Code of 1880, §1567; Acts of 1878,. 190; Code of 1857, 496, Art. 116. It was therefore error to sustain the.demurrer to the special pleas as amounting to the general issue, but the error is immaterial in view of the defense made-under the general issue as to the matter set up in the special pleas. The judgment is excessive. The plaintiff below attempted to cure-this error by a remittitur, but it was not for enough, as the calculation filed shows. Judgment reversed because of the error in amount, and judgment may be entered here for the sum due.