The opinion of the court was read by the Chief Justice at the following November term, as drawn up by

That a party to a negotiable instrument shall not be received as a witness to prove the same to have been originally usurious and void, in an action brought upon such instrument, is a rule which has for a long time been so uniformly adhered to and practised upon, in this State and in Massachusetts, that we cannot suppose it to have been the intention of the .counsel for the defendant to call it in question, in the case before us. The point now raised is founded on the assumption, that the rule is applicable only where the action is brought upon the negotiable instrument itself. But we do not find upon examination, that the rule can be considered as thus qualified. In all the cases cited to this point, from the Massachusetts reports, the proposition appears to be laid down in general and unqualified terms, that the party to a negotiable instrument, is not a competent witness to prove it to have been originally void. These were, it is true, actions brought upon the instruments themselves ; and the rule will generally be applied in practice-to cases of this class. The decisions in Massachusetts are deduced from the case of Walton & al. assignees of Sutton v. Shelley, 1 D. & E. 296, which is not distinguishable in principle from the one under consideration.

It was an action upon a bond, given by the defendant to Sutton; to which there was a plea of usury. It was proved that the bond was given in consideration of delivering up two promissory notes, made by Mrs. Perry to Birch or order, the one indorsed by Birch and Sed ley, the other by Birch Corbin ml Sedley to Sutton, Sed-*194ley was called to prove the consideration of the notes usurious, and rejected. The action was not on the notes, but it was the notes which the defendant attempted to prove usurious. Here the maker of the note, collaterally secured by the mortgage now in suit, was offered to-prove that it was given on an usurious consideration. In both cases, the question whether the deeds-were or were not tainted with usury, depended upon the consideration of the notes. From the cases cited from the Massachusetts reports, it appears that the case of Walton v. Shelley was adopted with approbation here ; and, notwithstanding the vacillation of the English courts, in regard to the rule, it has been adhered to in Massachusetts and in this State, with this qualification,that it is negotiable instruments only, which a party to them shall not be permitted to prove originally void. But if the rule had been thus limited in Walton v. Shelley, the result would have been the same. Sedley, the witness rejected, was no party to the deed in suit, but to the negotiable notes, the giving up;’of which was the consideration of the deed. This question was examined and illustrated by the late C. J. Parsons, in delivering the opinion of the court in Churchill v. Suter, cited in the argument; and the subsequent cases refer to this,.as settling the law upon the subject. All the reasons of public policy, which are there so lucidly exhibited as the foundation of the rule, apply with equal force to the case before us.

The mortgage deed is incident and collateral to the note, which, as the principal, is chiefly to be regarded. When that-is paid* the incident has no longer any .binding efficacy. It is for the purpose of enforcing payment of the note, or of holding the land as a substitute, which will be payment, if of sufficient value, that the present action is brought.

It was urged that the direct object of the defendant, in calling the witness, was, not to prove the note void, but the deed void and usurious, to which the rule does not apply. This distinction seems too refined for practical application, if we regard the spirit of the rule ; and was not even suggested in the case of Walton v. Shelley. Besides, in the case before us, the plea alleges the note to have been usurious and void, to secure which the mort*195gage deed vtjas given ; and it was «pon a traverse of this averment, that Usue was joined. Whether the note was or was not infected with usury, was therefore the question directly before the jury.

In the case of Loker v. Haynes, cited and relied upon by the counsel for the defendant, the grantors in certain deeds of conveyance were held to be admissible witnesses to prove the same to have been fraudulent and void. But it does not appear that they had any connexion whatever with any negotiable instruments; and it is only where questions arise in relation to these, that the rule is here understood to apply.

The opinion of a majority of the court is, that the witness ought not to have been admitted to prove the facts, for which he was called. The verdict is therefore set aside, and a

JYeu> trial granted.