| Vt. | Jan 15, 1829
delivered the .opinion of the court. The general principles, that must govern this case, will be found in the case of the Bank of Burlington vs. Jireh Durkee et al. (See page 399 of this Vol.) 'There a new trial was granted, because the testimony offered by the defendants to prove the usury, was • excluded ; and the circumstances which both parties seemed to suppose existed, with regard to the general custom of doing business at the banks,were not in the case; and it was not permitted the court to decide what the jury would have found, in relation to a corrupt agreement, had the testimony been admitted. Here ■the parties have -agreed upon a.statement of facts, upon which the >court are to decide the cause.
The plaintiffs have established a good cause of action upon, their note, unless defeated by the defence of usury. This defence, in order to .prevail, must consist of the taking or securing, by the .plaintiff, more than six por cent, interest, andthe doing that intentionally against the provisions of the statute. The case shows the taking of about -eight cents too much, for the -interest of $600, for 64 days ; but it shows this to -be according to the uniform course' ■of business at the bank. From these facts merely, and as heavy as the penalty of the statute is, creating a forfeiture of the whole debt, we cannot decide this a corrupt agreement in violation of the 'statute. The sum is so small, that every presumption is against its being taken as an intentional violation of the statute. It’s being an invariable rule of the bank, and uniformly and publicly followed, to cast interest in this way, affords a strong presumption that the plaintiffs thought this perfectly conformable to the statute. If they acted honestly, but mistook in their construction of the statute, with regard to the fractions of a year, their debt must not be lost by this. There are many ways of-casting interest, adopted by courts in the different'states, and even in the same state at different periods, all varying in their results more than this computation differs from the
This falls within the first clause of the statute, that1 no more than six per'cent.shall be taken; and the eight cents extra must b.e deducted from the amount in making up judgment. And we w’isli it fully understood,that the bank must change their mode in future; .or they will act with their eyes open.
Let judgment be entered for the plaintiffs for the amount of the nóte, deducting the eight cents, and casting interest from the time the sixty-four days expired.