22 Wis. 147 | Wis. | 1867
The case of Platt v. Robinson, 10 Wis., 133, and others following, cited by counsel for respondents, stood upon the peculiar phraseology of the statute, sec. 2, chap. 55, Laws of 1856. The repeal of that section, and the substitution of sec. 6, chap. 160, Laws of 1859, evinced an intention on the part of the legislature to change the rule. Section 6, last cited, was adopted from New York, in which state it had received a well settled judicial construction, which was, that the remedy given by it was limited to the person actually borrowing the money, etc., and to those standing in his place in a representative capacity, as heirs-at-law, sureties, devisees, executors and administrators. Any other person seeking to avoid the contract on the ground of usury, could do so only by paying, or offering to pay, the sum actually loaned, with lawful interest; and if such person filed his bill in equity for relief against the contract, he must aver such payment or offer to pay according to the
The motion to dissolve the injunction for insufficiency of the complaint, should have been granted.
By the Gourt. — Order reversed. '