Briggs v. Sholes

15 N.H. 52

Opinion

Parker, C. J.

The replication is bad, for the third cause set forth in the demurrer. In a real action the defendant may allege that the plaintiff’s title is by mortgage only, and then plead usury. The plaintiff may file a counter allegation or averment, denying that his title is by mortgage; in which case the plea of usury will be rejected, and the defendant put to plead to the action as an ordinary real action. The plaintiff in such case will be estopped by his counter allegation from recovering as of mortgage, and if he have no other title the defendant will be entitled to judgment.

If the plaintiff admits his title to be in mortgage, as alleged by the defendant, he may object to the reception of the plea for any cause which would be sufficient in case the action was upon a note, and the plea may be rejected on sufficient proof. If no cause exist for rejecting the plea, the plaintiff can either admit the defendant to verify his plea, and let judgment be entered accordingly, or ho may reply to it. If he replies, his replication must be single. If he have several answers, either of which appears alone to be sufficient, he cannot join them all in the same replication, hut must elect between thorn. Ho may reply that a different sum was taken as usury, and offer to verify by the oath of the indorsee.

So the plaintiff may reply to the allegation, that his title is by mortgage only, and that the mortgage is foreclosed; and an issue may he framed on that. If the plaintiff fail in establishing the foreclosure, ho admits the usury, and the defendant will have such judgment entered as the plea may entitle Mm to, unless the plaintiff shall obtain leave to reply to the plea.

There seems to be an objection also to the plea. Simple interest paid upon usury is ordinarily paid for the forbearance of the usury, and not for the forbearance of the principal. It is not usury therefor, and no forfeiture is incurred by its reception, unless it was part of the corrupt agreement that the payment of the usury might be delayed and interest paid upon it, in which case the whole may he regarded as so much agreed to be paid for the forbearance of the principal.

Leave to amend.