Kimball v. Abbott

5 N.H. 394

• Court: Superior Court of New Hampshire
• Decided: May 15, 1831
• Status: Published

Opinion

I7m-w.: . :m, (J. u

The síAihc ng dmi usury in sub-'-ter.ee y\ v: hr. that \.nien sky pmau,. •£ sued upon any ct>iifrv:u er ...MiiWrm v . fo _j>i i,,• ;-'yin:fo n <. wrr¿ or othw per-wfo r bbe, wh, rece, c ’ -, bcifroy unlawful wicrcm fo J i.jc-a fomm or :: urn ed, If ;be bolder will of-frriomfoe cfoh, and T rom.frfo, v •madly rwc.v, fofo hewe .browsed by . rfo c >. rw t r • _ , v we, move iiii.ii fowh I fofo-red -fo í 'o fr> bv...i w if fo ' for:?, or that the cic;Ii' a hr be m ■ - ’o i! ’ : IvsT 'bomb for the roir;. ■ . ewer 1 • p ;fr a - a'-, the ,- hi ‘ :-"'vgibt, U’Ca Lb > cm b ?b 'r;f; 1 here lb; ; r.¡ I >’ ffi - due upo ■ j in ’ • refo. fo, w r. ■. :: in _ b veal f.f fa rnb ' f f ' ' ’v , u.d , •bw’” '-’fob nvcv t!i*at bo Is; ; ix', rvefofo rob fry 1 w:w ' v, v b.mw c~ cored, car vfr v? ir, '".re d'y, r’os time ’ ml b "frNN. for ghh • ’ey of ; ye. -iv fo b.e avey c, mh;r . foag dcmandecl.

It is settled, that nothing is subject to a deduction on account of usury, under the statute, except the money, or other tiling’, for which the suit is brought, and for the forbearance of which the illegal interest has been reserved or taken. Gibson v. Stearns, 3 N. H. Rep. 185.

Nothing’ is, in express terms, said in the statute, as to what is to be clone with the unlawful interest reserved in the instrument, on which the suit is founded. But the practice is always to reject it as illegal. It is never recovered. The sum justly due is ascertained by rejecting all the unlawful interest, and then from that sum three times the amount of the unlawful interest is deducted, and judgment rendered for the balance, if any tbipir Fcrrirun.

1 r , foe yh mm ' ' r ’ fo i ^ t d awful ifoei" i ¡ j d c w j- t-tl'l Ifo ' * > v a , r w ' i „ dm v the envy .. >y w 7 ’ , ’ f ’ . Trp. <5.

j. e T r i e ""i w lv e a de-bí N r ' Ci b-w l\r 1 ' Gv’’ ;m oj q \ fo c )j ci foe1 1 ⅜ ’r > cfo1' ’ b. i- 1be de-8 u n Ui\ iv mi1 ( < v 1 i t mm j v ¡b >eb ed in bar in the common mode, and the facts admitted by a demurrer, or found by a jury.

The question now is, whether, when the demand sued is all unlawful interest, and the defendant pleads the usury, lie may, under the statute, tender his oath in support of his plea ? It seems to us that if we adhere to the decisions which have already been made, this plea must be sustained. For in every case where illegal interest is included in the same note with the principal, and the Usury is pleaded in the manner prescribed by the statute, we hold the plea not only to be a bar to the recovery of the illegal interest, but to entitle the defendant to a deduction of three times the amount of the unlawful interest, from the principal. If a plea which has such an operation may conclude with a tender of the oath of the defendant, it is difficult to imagine a reason why a pico., which is only a bar to the recovery of the unlawful interest, may not be so concluded.

We are of opinion, that this plea is a good answer to the action.