Engler v. Collins

16 Ind. 189, 1861 Ind. LEXIS 75

• Court: Indiana Supreme Court
• Decided: May 31, 1861
• Status: Published

Opinion

Davison, J.

Collins, who was the plaintiff, sued David Engler and Jacob Bush, upon a promissory note for the payment of $210. Defendants’ answer, contains four paragraphs. The first, second, and fourth led to issues of fact; to the third there was a demurrer sustained.

The action of the Court in sustaining the demurrer raises the only question in the case.

The third paragraph alleges that “ the note, when it was given, contained the sum of $50, illegal and usurious interest, which the plaintiff took and received from the defendants on said note; wherefore they demand judgment for $50, for said illegal interest, and other relief,” &c. This defense is fatally defective, because it is couched in general language; not specifying the particulars of the contract upon which the usurious interest was included in the note. 1 Yan Santvoord’s PI. 468-469; Fay v. Gumsteed, 10 Barbour, 321. The demurrer was therefore well taken.

M. M. Bay and T. McFarland, for the appellants. J. Harrison, for the appellee. 5 1 r

Per Curiam.

The judgment is affirmed, with 5 per cent. damages and costs.