The opinion of the Court was delivered by
Williams, C. J.In this case the court are all agreed that the deposition of Portus Baxter was inadmissible. Although his interest in the note was released by him, yet, if the plain*-, tiff failed, the cost of prosecuting the suit, as well as the cost which would be paid to the defendant, would constitute a good charge against the estate of Wh1* JJaxter^ and would, in the end, be paid by the heirs. To make him a witness it was necessary, in addition to the release executed by lfim, that the plaintiff should have discharged him from a]] plaim for cost. As the case will be remanded for trial, if may be proper to decide the other points, which have been argued.
We do not discover that there was such an agreement to delay or give time to the principal, as would discharge the surety. The evidence does not disclose a case withjn the principle repeatedly decided, where the sureties are discharged by giving time to the debtor.
On the question of usury it appears to us extremely doubtful whether the testimony of Bingham establishes the fact, that interest on both notes was included, or that any thing more than lawful interest was reserved, but if it was otherwise the note for the usurious interest was taken by Portus Baxter, without the consent or knowledge of the plaintiff, find, inasmuch as there was a bona fide indebtedness to the estate, of which the plaintiff was administratrix, and the note, received by the plaintiff, was only for the just amount due, *554The note in suit would not be void, if Portus Baxter, without her consent, received a note to himself for any further Sum"
On the other question, whether the plaintiff can maintain this action, declaring as on a note payable to the intestate, the court are not agreed, and must leave it undecided, although we are all agreed that she might maintain an action on the note, in her character as administratrix, declaring on it as a note payable to bearer. It is assets in her hands, and, as such, if she parted with funds belonging to the estate, and received this note therefor, she may as bearer recover thereon, declaring in her representative capacity. Whether the plaintift will venture to sustain the present declaration, or by an amendment obviate the difficulty alluded to, is for her to determine.
The judgment of the county court must be reversed, for the cause first mentioned.