Webb v. Deitch

17 Ind. 340, 1861 Ind. LEXIS 434

• Court: Indiana Supreme Court
• Decided: December 9, 1861
• Status: Published

Opinion

Worden, J.

Suit by the appellees against the appellants upon a promissory note given by the defendants to the plaintiffs, for $406.55.

The defendants answered, among oilier things, as follows, viz., “And for further answer, hei in defendants say that they admit the execution of the note sued on, but say that $100 of the consideration of the note was for usurious and illegal interest; wherefore defendíais demand judgment.”

T. IV. Woollen and C. F. MJNutt, for the appellants. Overstreet and Hunter for the appellees.

A demurrer was sustained to this paragraph of the answer, and this ruling is the only error complained of.

We need not decide whether the objection to the answer, that it does not set out the usurious contract, or allege the facts constituting the usury, can be reached by demurrer. The answer is radically defective in another particular. It sets up matter which, at most, could only be a bar to $100, arid the interest and costs, in bar of the entire note. This is bad pleading, and the defect is reached, under the code, by demurrer. Brown v. Perry, 14 Ind. 32, and cases there cited.

Per Curiam.- — The judgment is affirmed, with 5 per cent, damages and costs.