Darling v. Homer

16 Mass. 288

Opinion

Per Curiam.

The statute contemplates two distinct reasons or causes, whereby a defendant may avoid his contract. The one, where usurious interest is reserved or secured by the contract; the other, where such interest has been received. The word “ and,” in the clause of the statute, relied upon by the defendants, is to be taken distributively. In the case before us, the defendant has pleaded that unlawful interest was reserved and secured by the note sued. The plaintiff, in his replication, has met and denied all that the defendants have alleged. If they relied on the other branch, they should have framed their plea upon it; and the plaintiff must have answered it, or have failed in his suit. Perhaps the defendants might have pleaded both the causes, and the plaintiff might have been held to reply to both. As it is, he has covered the whole plea, and the replication is adjudged sufficient.