Usury is a matter of intention, and to avoid a contract on that ground it must appear that the lender knew the facts and acted with a view of evading the law. Otto v. Durege, 14 Wis., 574, and cases cited. There is no evidence that Merrill knew anything about the deduction of the 8 per cent, by Fay, or ever assented to it. The contract was, therefore, valid in the hands of Merrill; and being valid in his hands, it is also valid in the hands of his assignee, Fay. Fay acted as the agent of Lovejoy in procuring the loan, retained the three per cent, in his own hands, and then wrote Lovejoy that it had been deducted by Merrill. This was a deception on the part of Fay, for which Lovejoy might have been allowed in this action the sum detained, with interest, if the facts had been stated in his answer; but it did not make the contract with Merrill usurious.
By the Court. — Judgment affirmed.