Watkins JANUARY 1830. tion, they were fair and bona fide contracts." The Court held the denial to be sufficient, under the statute to prevent the defendant from giving evidence on his own oath, and rejected him, to which the defendant excepted. The jury found for the plaintiff. v. Watkins. MARDIS, for the plaintiff in error, insisted that the denial was insufficient, and that the defendant below should have been permitted to prove the usury on his own oath. CLARKE, for the defendant in error. By JUDGE WHITE. Were it not that it might be deemed of some importance more extensively to make known the views of this Court, on a point of practice often occurring on the circuits, I should consider it unnecessary to file a written opinion in this case, as the only question raised by the assignment of errors, is embraced by previous adjudications. ses. It has been the general policy of civilized and commercial nations, to fix a certain rate of interest for the loan or use of money; and as this regulation has been considered of vital importance to society, to enforce the observance of the laws on the subject by penal sanctions, or threatened losBut the facility with which contracts can be made, importing on their face a fair consideration, puts it in the power of the usurer to evade the prohibitions of the law, if the contracts were subjected to none but the ordinary rules of evidence. Hence the necessity of the provision in our statute, that the borrower should be a witness to prove the usurious consideration of notes, bonds, &c. This, however, being a variation from the general principle, wholesome in itself, that no person shall testify in his own case, it became necessary to place it under certain restrictions, and not to allow the borrower to give testimony, "if the person against whom such evidence is offered to be given, will deny upon oath, to be administered in open Court, the truth of what such witness offers to prove against him." Now, to apply these express provisions of the statute to this case, neither the nominal nor beneficial plaintiff denied on oath the only material fact, which the defendant offered to prove against them; but the person for whose use the suit was brought, merely denied his knowledge of the facts stated. To permit such a denial as this to exclude the evidence of the borrower, would not only Watkins V, Watkins. be contrary to the plain words of the statute, but in many JANUARY 1830 cases would tend to defeat the very object of the law itself. For whenever the usurer should take a note or bond for the sum claimed, and transfer it to a third person, ignorant of the consideration, that person could safely swear that he did not know the contract was tainted with usury, and thereby deprive the defendant of his oath, which is often the only method of proving the facts in avoidance. This, however, the statute evidently intended to prevent. But as already intimated, this very question was decided by this Court, at the July term, 1827. We are therefore of opinion, that there is error, that the Judgment must be reversed, and the cause remanded. * KING V. DOUGHERTY. Where more than $50 is due on a contraet, the creditor may relinquish all over that amount, and sue for $50 in a justice's Court. E. KING held a note made by J. Dougherty, payable to On him for $51 64, due on the 4th of February, 1827. the 14th of March, 1827, King indorsed on the note the following words: "I relinquish all the within note that is over fifty dollars, E. King," and on the same day sued out a warrant before a justice of the peace of Shelby county, against Dougherty, returnable on the 24th of March, to recover on the note. The magistrate gave judgment against the defendant for $50, besides costs. Dougherty appealed to the County Court of Shelby county, which Court, on his motion, quashed the proceedings. From this judgment, King appealed to the Circuit Court of Shelby county, where, at the November term, 1827, the judgment of the County Court was affirmed. This decion of the Circuit Court, is now here assigned for error. MARDIS, for the plaintiff in error, submitted the cause, no counsel appearing for the defendant in error. See the case of Fariss & Powell v. King, 1 Stewart's Reports, 255. JANUARY 1830. v. By JUDGE CRENSHAW. The question arising from the record, is, had the plaintiff a right to relinquish King all his debt except fifty dollars, so as to bring the case Dougherty. within the jurisdiction of the magistrate? This question has been settled in the affirmative by a former adjudication of this Court. The judgment must therefore be reversed, and the proper judgment rendered here. In this opinion the Court are unanimous. JUDGE SAFFOLD not sitting. AVENT V. READ . 1. A conveyance of lands, though not duly registered, if made bona fide, THIS was an action of trespass to try titles, brought in 1822, by John Read, in Madison Circuit Court, against Henry Avent, to recover possession of a quarter section of land, and damages for the detention of it. The cause was tried at the October term, 1827, of the Court, on the plea of not guilty. It appeared in evidence, that in March, 1820, one Gray had obtained a judgment against Avent; the land in dispute was levied on by the Sheriff on an execution under this judgment, in March, and sold in September, in the same year, as Avent's property, when Read became the purchaser. The defendant proved and read in evidence a deed executed by himself to one James Gaston, on the 20th of February, 1820, for the same land; which was recorded on the 28th of August following, more than six months after its date. This deed was made during the pendency of the suit against Avent. At the time of the sheriff's sale, Gaston gave notice that the land had been sold to him by the defendant, and that he was the owner of it. The Court, on this proof, instructed the jury that the failure of Gaston to prove and record his deed within the time prescribed by law, rendered it void and fraudulent as against Read, the purchaser at the sheriff's sale, although the consideration of the deed might have been bona fide paid; and though it might have been executed in good faith. To which the defendant excepted. The jury found for the plaintiff the land, and $5 damages. The JANUARY 1830 instructions given by the Court to the jury, are here as signed for error by Avent. CLAY & MCCLUNG, for the plaintiff in error. HOPKINS, for the defendant. By JUDGE COLLIER. The material inquiry, is, whether the registration of a deed conveying lands, be necessary to give to it validity against the creditors of the vendor. The negative of this inquiry is attempted to be sustained, by a reference to the second member of the second section of the statute of frauds, a so much of which as it is important to notice, is in these words: "And moreover, if any conveyance be of goods and chattels, and be not on consideration deemed valuable in the law, it shall be taken to be fraudulent within this act, unless the same be by will duly proved and recorded, or by deed in writing, acknowledged or proved. If the same deed include lands, also, in such manner as conveyances of lands are by law directed to be acknowledged or proved; or if it be of goods and chattels only, then acknowledged or proved by one or more witnesses in the Superior or County Court, wherein one of the parties lives; within twelve months af ter the execution thereof." This provision of the act, it is conceived, can have no influence upon the question; it is expressly restricted to deeds which are made without a valuable consideration; and in such cases only to those conveying goods and chattels, or goods and chattels and lands, and not to those which convey lands alone. Did this construction admit of a doubt, that doubt would be entirely removed by the third section of the same statute, which declares that it shall not extend to any estate in lands, which shall be upon good consideration, bona fide, lawfully conveyed. b Avent V. Read. a Laws of Ala. 244. 245. The act of 1811, only restrains the operation of deeds Laws of Ala. of land, for a failure to have them registered, against subsequent and bona fide purchasers, and mortgagees without notice, without saying any thing of creditors. In fact, in the multiplicity of legislation upon this subject, anterior to the date of the deed in question, registration by the vendee seems not to have been made necessary to give title as against the vendor's creditors. We are therefore of opinion that the creditor derives no advantage from the Avent V. Read. JANUARY 1830. Omission of the vendee of his debtor to register such a deed. We may consider the defendant as standing in the situation of Gray, the judgment creditor, or as a purchaser from the time he became such; and in either point of view the charge of the Court was erroneous. It should have been left to the jury to determine from the proof offered, whether the defendant, at the time of his purchase, had notice of the existence of the deed. Their inquiry on this point was foreclosed by the instruction given. If the proof professed to be set out in the bill of exceptions, could be considered as all that was offered, we would be prepared to affirm the judgment below, because no consideration appears for the conveyance from the plaintiff to Gaston; but there is nothing in the record which enables us to infer that other evidence was not adduced, and the language employed in the charge of the Court authorizes a different conclusion. We are accordingly of opinion, that the judgment must be reversed, and the cause remanded. JUDGE WHITE not sitting. 2s 490 111 118 JOHNSON V. KELLY & HUTCHISON. 1. If the judgment is for more damages than laid in the writ and declaration, it is error. 2. An admission by the defendant of the correctness of the plaintiffs demand, is sufficient evidence to recover, without proof of the original entries, or production of the account. KELLY & Hutchison, for the use of Wm. Leach, on 23d of April, 1827, commenced an action of assumpsit against W. B. Johnson, in Madison Circuit Court, to recover on an open account for services rendered. The damages were laid in the writ and declaration at $100. The plaintiffs proved on the trial, that the account, amounting to $90, was presented on behalf of Leach, by one Rogers, to the defendant, who admitted it to be correct, and agreed that if day was given from that time, the 31st May, 1827, till the 1st of January next afterwards, he would give his note for the amount, with G. W. Johnson as security; Rogers surrendered and receipted the account, and took a note for the amount, payable to Leach |