19 Tenn. 80 | Tenn. | 1838
delivered the opinion of the court.
This is an action of debt to which the defendant has pleaded in bar, that the contract on which it is founded is usurious for the sum of thirty-three dollars twenty-five cents.
This plea it is contended is bad upon general demurrer, and we think correctly. A usurious contract is not void in loto, but only for the excess of usurious interest. The matter of the plea then is not a bar to the whole cause of action, but only to so much as is usurious. That a plea is bad upon general demurrer, which purports to answer the whole cause of action, but can by law only be an answer to a part, is too plain a proposition to be discussed.
The form of this plea is a bar to the whole cause of action, the commencement is, “for plea in this behalf says,” and the conclusion is, “wherefore he prays judgment, if the plaintiff his action shall have and maintain.” If issue had been joined upon this plea, and it had been found for the defendant, the plaintiff could not have had judgment for this debt with legal interest.
The form of the plea should have been “for plea as to the sum of $33 25 cents, a part of the plaintiff’s cause of action says,” and in the conclusion, “wherefore he prays judgment if the plaintiff,his action aforesaid for the said sum of $32 25 cents, shall have and maintain.” To a plea' in this' form the plaintiff might have replied and taken issue upon' the' question of usury and have had judgment by nil dial for his debt with legal interest.
We therefore think there is nó error in this case, and affirm' the judgment of the court below.
