Bush's adm'x v. Bush

23 Ky. 53 | Ky. Ct. App. | 1828

Judge Miles

delivered the Opinion of the Court.

Absent-Chief Justice Bibb.

The plaintiff in error brought her petition and summons, on a note executed to her intestate, in the following words:

“ On or before the 10th of May next, I promise to pay John V. Bush, one hundred and fifty round silver dollars, for value received, this 19th day of March, 1817. [Signed,] Will. T. Bush.

Teste, Will. T. Christie.

I will pay fifteen per cent on the above note until paid. ' [Signed,] William T. Bush.

The defendant craved oyer and demurred — the plaintiff joined in demurrer, and the court gave judgment on the demurrer for the defendant, and the plaintiff has prosecuted her writ of error.

We conceive the court below erred. For although this note was given, when the act of assembly, then in force, declared all usurious contracts void, yefi there is no way on the face of the instrument, of ar-riving at the conclusion that the contract is usurious, even if wc admit the memorandum at the hot-.tom to be part of'the note, and as constituting part of the demand for which the plaintiff craves judgment in her petition. The question of borrowing or lending, or a promise of extraordinary interest for forbearance, is that on which the question of' usury rests, and there is nothing on the face of the-writing which proves that the fifteen per cent was promised, in consideration of forbearance, oc-forsome other consideration, and if it was based on any other legal consideration, the stipulation was valid. It was, therefore, by plea to fact alone, that the defendant could avail himself of the usury, if it exists.

Tbe usury must be pleaded. Wickliffe and Hanson, for plaintiff; Crittenden, for defendant.

Judgment reversed, with costs, and cause remanded, with directions to enter judgment for plaintiff, unless the defendant shall apply for, and obtain leave to withdraw the demurrer and plead to the merits of the action.