bearance, or discount of any money, goods, or things in action, than is prescribed by this act, he, she, or they shall forfeit and pay to the person suing for the same, three-fold the amount of the whole interest so contracted, to be reserved, discounted or taken: Provided, said suit be not commenced by either of the contracting parties; and if so, then the amount so recovered shall be paid into the county treasury of the county where such suit shall have been instituted.

SECT. 5. Every person, who for any such loan, discount, or forbearance, shall pay or deliver any greater sum or value than is above allowed to be received, and his personal representatives may recover in an action against the person who shall have taken or received the same, and his personal representatives, three-fold the amount of the money so paid, or value delivered above the rate aforesaid, either by an action of debt in any court having jurisdiction thereof, or by bill in chancery in the circuit court, which court is hereby authorized to try the same: Provided, said action shall be brought, or bill filed within two years from the time when the right thereto accrued.

SECT. 6. In the trial of any action wherein it shall appear by the pleadings that the fact of usury shall be put in issue, it shall be lawful for the debtor, the creditor being alive, to become a witness, and his testimony shall be received as evidence, and the creditor, if he shall offer his testimony, shall be received as a witness, together with any other legal evidence that may be introduced by either party.

SECT. 7. This act to take effect from and after the first day of April next.

Approved February 28th, 1833.

1. A defendant cannot avail himself of the statute against usury, unless the same be pleaded, and an application be made to the court where the cause is pending for the benefit of the act. Murray v. Crocker, 1 Scammon R. 212.

2. It is a well settled principle that the bona fide purchase of a note in a fair course of trade, at a greater discount than the rate of interest allowed by law, is not usurious when the original consideration was not tainted with usury. Raplee v. Morgan, 2 Scammon,

562.

SECTION XI.

INDIANA.

The act of 1831 authorized any rate of interest to be taken, provided the agreement for it was in writing, and signed by the party to be charged. Revised Code of 1831, page 290.

Present Statute of Indiana, 1838.

SECT. 1. Be it enacted by the General Assembly of the State of Indiana, That creditors shall be allowed to receive interest at the rate of six per centum per annum, for all moneys after they become due, on bond, bill, promissory note, or other instrument of writing; on any judgment recovered in any court of law, now or hereafter to be established in this state, or on any order or decree of a court of chancery or probate, for the payment of a specific sum of money, from the day of signing such judgment, order, or decree until effects be sold or satisfaction be made; likewise on money lent, on money for the forbearance of payment whereof an express promise has been made for the payment of interest; on money due on the settlement of accounts, from the day of liquidating the accounts between the parties, and ascertaining the balance; on money received to the use of another, and retained without the owner's knowledge, or retained after demand of payment; and on money withheld by any unreasonable or vexatious delay of payment.

SECT. 2. That no person or persons, body politic or corporate, shall on any contract, hereafter made, directly or indirectly, take or receive for the loan or use, or forbearance of money, or on any contract for the payment of money, above the rate or value of six dollars for the loan, use, or forbearance, or on the contract for the payment of one hundred dollars for one year, and so proportionably for any greater or less sum, and for any longer or shorter time; unless the stipulation to pay a higher rate of interest be made in writing and signed by the party to be charged. But in no case whatever, shall any person or persons, body politic or corporate, take or receive more than ten dollars for

any

such loan, use, or forbearance of money, or on any such contract for the payment of one hundred dollars for one year, and so proportionably for any longer or shorter time, or for any greater or less sum.

SECT. 3. If any person, either directly or indirectly, shall demand or receive any greater rate of interest than may be lawful for the use

of any sum of money, the person so offending shall, on conviction by indictment in the proper circuit court, pay a fine to the state of Indiana, for the use of the county treasury of the county in which the offence shall be committed, double the amount of the excess of interest so received above the amount by law allowed.

1. A debtor, in pursuance of a corrupt agreement to get time, gave his creditor an obligation, payable at a future period, for a sum including the debt and usurious interest at eight per cent. per annum from the time the debt accrued until the obligation was to be paid. Held, that the contract being usurious, the original debt without interest was all that could be moved. Held, also, that a plea setting forth the usury, and also a payment of part of the principal, was not bad for duplicity. 1 Blackford, 366.

2. The defendant, in an action on a usurious contract, not being able to prove the usury, had judgment against him. He afterwards filed a bill in chancery for discovery and relief Held, that the bill in such case, must show the principal and lawful interest to have been paid or tendered; and in the case of a tender, the money must be brought into court.

A usurious contract is not void by the statute of this state; no interest can be recovered, but the principal may. Crawford et al. v. Harvey, 1 Blackford, 382. See Roberts v. Gaff, 4 Barn. & Ald. 92.

3. The payee of a note, who has sued the makers, cannot demur to a bill in chancery filed by the latter, because it charges the note to be usurious, and prays a discovery, if the complainants have brought the principal and legal interest into court. Harvey v. Crawford, 2 Blackford 43.

4. To an action of debt on a promissory note, for the payment of $150 at a future time, the defendant pleaded as to $50 of the amount, that the consideration of the note was a previous debt of $100, and a promise to delay its collection, and was, therefore, as to $50, usurious. Held, that the promise for forbearance, as shown by the plea, being in writing, and signed by the defendant, was valid under the statute of 1831. Taylor v. Mick, 4 Blackford, 388.

SECTION XII.

KENTUCKY.

An act to alter and amend the law concerning usury. Approved February 6th, 1819.

SECTION 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That no person shall hereafter, upon any contract, take, directly or indirectly, for loan of any money, wares, and merchandize, or other commodity, above the value of six pounds for the forbearance of one hundred pounds for a year, and after that rate for a greater or lesser sum, or for a longer or shorter time. All bonds, contracts, covenants, conveyances, or assurances, hereafter to be made, for payment or delivery of any money or goods so to be lent, on which a higher interest is reserved or taken than is hereby allowed, shall be utterly void, so far as relates to usurious interest; but the amount so loaned, with lawful interest thereon, he, she, or they shall be entitled to recover: Provided, nevertheless, that if the lender shall refuse to receive the principal, with lawful interest, on a tender thereof previous to the institution of suit for recovery, he, she, or they so refusing shall pay the costs of said suit; but in no case, either at common law or in chancery, or in any other way, shall the lender be prevented from recovering the debt, with lawful interest thereon.

SECT. 2. All acts or parts of acts coming within the purview of this act, shall be, and the same are hereby repealed. Provided, that nothing in this act contained shall be so construed as to affect any contracts heretofore made.

1. If one lend money and take a mortgage upon a negro as security, and contract to have, for the interest of the money, the use of the negro, which greatly exceeds the legal interest, the contract is usurious. Richardson's Adm'rs v. Brown, 3 Bibb, 207.

2. But if the agreement to set off the hire of the negro against the use of the money were subsequent to the contract of loan, the original contract will not be affected with the usury, but the latter agreement only. Read v. Lansdale, 6 Hardin.

3. A contract, to be usurious, must substantially be a lending and borrowing. If so, no shift or contrivance will enable the parties to evade the law. But if the contract be really not for borrowing and lending, it cannot be brought within the statute. If the contract for

illegal interest be for forbearing, and not upon the loaning of money, it is still usury within the meaning of all the statutes, from that of Anne to that of 1819. 5 Little R. 88.

4. In a contract for the purchase of property, the parties may stipulate for the damages to be paid in case of failure, and the court and jury will be bound by these damages thus ascertained, though they exceed the legal interest on the value of the property which ought to have been delivered. Tardeveau v. Smith, Hardin, 175.

5. A covenant to pay $150, in negroes, in six months, for the sum of $100, is usurious. 1 Bibb, 333.

6. T, having a replevin bond on K, received several sums of money for forbearance, from time to time, greatly exceeding the legal rate of interest; and then assigned the bond; the assignee and T were made parties to a bill for relief. The assignee being a bona fide purchaser, without notice of the usury, and being induced to purchase the bond by the express promise of K to pay, is entitled to have the amount on the replevin bond. But against T the complainant is entitled to relief and decree for the amount paid on the usurious dealing. Kenry v. Talbot, 4 Bibb, 39.

7. An evasive answer on the subject of usury, shall be taken as an admission of the usury. 4 Bibb, 319. 7 Monroe, 382.

8. An answer that does not meet the charge of usury directly, is liable to be assailed by weak proof. Pierce v. Hedrick, 3 Little, 113.

9. It seems that where facts amounting to usury are charged in a bill to be within the knowledge of the defendant, and he❝ cannot recollect, &c.," they shall be taken as true. Lawless v. Black, 4 Monroe, 488. 10. The service unexplained in an answer is only another name for usury. The "large sum of money" and the "hay and corn," without specification of the amounts, evince a disposition to evade a direct and explicit answer, therefore are an admission in effect of the allegation of the bill. Brackenbridge v. Churchill, 3 J. J. Marsh. 11.

11. An obligation void in its origin on account of usury cannot be made valid by any subsequent transaction between the parties. Saller v. Duman, 7 Monroe, 382.

12. II loaned $250 to M, to be paid in one year; H to have instead of interest the use of a negro, whose hire greatly exceeded the interest, took from M an absolute bill of sale of the negro; but gave M a writing, specifying that if he returned the money in one year he might redeem the negro. H kept the negro several years. The contract was usurious. H shall account for the hire of the slave, to