27 Tenn. 605 | Tenn. | 1848
delivered the opinion of the court.
This is an action of trover, to recover back a promissory note on R. Topp and W. L. Vance, payable to the plaintiff, and which he had pledged to the defendant, as collateral security for money loaned on a usurious contract.
On the trial the plaintiff proved the pledge of the note, and that when the money w,as loaned by the defendant, usurious
The first question is, whether a tender of the money advanced to the plaintiff, and legal interest thereon,. should not have been made in order to entitle the plaintiff to recover? Our statute, (act 1835, ch. 50, sec. 3, 4 & 5,) provides that when a greater sum than six per cent, per annum is reserved, and suit is brought for. the same, the defendant may avoid the excess over legal interest, by plea on oath, setting forth the usury — and when the plaintiff admits the usury, or it shall be shown by proof, it shall be deducted from the claim, and judgment shall be given for the balance. .Although the, statute declares that it shall be unlawful to receive more than six per cent, per annum, and the party guilty of taking usury, is indictable — yet when the usurious nature of the contract is disclosed by the plea of the defendant only — in such case, the contract is not void in toto — but is valid for the sum actually due, and legal interest thereon. Meigs Rep. 80. If a plaintiff sue upon a contract usurious upon its face, and in stating
'The court erred, in stating to the jury that the plaintiff must prove that the money was in court, ready to be paid to the defendant. • After a tender had been made, and arefusal to receive the sum actually due, the plaintiff’s cause of action would have been complete — and of course he would be entitled to recover, without performing any subsequent act: 5 Yerg. 199. But in this case there was no evidence that the note sued for had been demanded — and consequently, there was no proof of a conversion. A tender of the money due would have been equivalent to a demand, but no tender was made. The witness says he told the defendant that he had come to settle the matter; but in what Avay he proposed to settle, he did' not state. He said nothing about paying the money due. It may have been his intention, so far as the defendant knew,- to insist that the