Olcott v. Alden

Richardson, 0. J, delivered the opinion of the court. It is a good answer to a plea like this, that the note was bona fide, transferred to the plaintiff, before it was discredited, for a good consideration, without notice of any usury in it. 3 N. H. Rep. 119, Forbes v. Marsh. So it is a good answer to such a plea that the payee is dead or insane. 5 N. H. Rep. 556, Plumer v. Drake. But in this case it is only alleged that the payee is out of the state, in parts unknown to the plaintiff. There is no allegation, on the part of the plaintiff, that he is the bona fide holder of the note, for a full consideration, by him paid, without notice of the usury. Notwithstanding anything which appears in this case, Dole may still be the owner of the note and the suit be brought in the name of this plaintiff for Dole’s benefit. For this reason the replication must be adjudged insufficient, unless the plea is also defective. We must then examine the plea. In pleas of this kind it is not necessary to set out the corrupt agreement particularly, but it must be alleged that the excess was reserved, or received under a corrupt agreement in order to bring the case within the statute. 3 N. H. Rep. 116, Copeland v. Jones. [518] Whenever the defendant prays a deduction of three times the amount of the unlawful interest, he must show in his plea how the money sued for is connected with the unlawful interest. For the deduction can be made only from the money on which the unlawful interest has been reserved, or from the interest of that money. 3 N. H. Rep. 185, Gibson v. Stearns. He must also state the amount of the unlawful interest reserved or taken. And enough must be stated, in the plea, to enable the court to find wtiar sum is lawfully due on the contract sued. For as the deduction is to be made from that sum, until that sum is ascertained, it cannot be known what judgment ought to be rendered. In this case it is alleged that the sum of $108,19 above lawful interest, has been received andera corrupt agreement, for the forbearance of the money sued for in this case. The plea admits that the amount of the note and interest is lawfully due, and from that sum the deduction, if any, is to be made, lithe plea is true, there seems to be no doubt that the deduction for which the defendant contends, ought to be made.