18 La. 346 | La. | 1841
delivered the opinion of the court.
The' defendant is appellant from a judgment dissolving an injunction which he had obtained to stay the execution of an order of seizure and sale, on the ground that the note secured by the mortgage was partly given on an usurious consideration ; and that the order of seizure and sale charged him with interest from the date of the note, while according to the contract he was only liable to pay interest from its maturity.
The defendant obtained a commission to take the testimony of witnesses with a view of "'establishing usury. He was ruled to trial before the return of the commission, and offered witnesses for the same purpose, who were rejected; whereupon he took a bill of exception; the court being of opinion that parol evi-dence was inadmissible, and usury could'only be proved by a counter letter or other written testimony, when the payment is acknowledged by an authentic act. The article 2234 of the Louisiana Code was relied on. It relates only to the old exception de non numerata pecunia. The courtyn our opinion, erred. The plea of usury would be hardly available in any case if those who rely on it, were bound to prove it by a counter letter or other written evidence. ,
The note does not bear interest on its face, but it is stipulated in the act of mortgage that ten per cent, interest will be paid from the time of its maturity. For this excess of interest, the injunction ought to have been perpetuated, which is obvious
jt jg therefore ordered, adjudged and decreed that the judgment of the District Court he annulled, avoided and reversed ; and proceeding to give such judgment as, in our opinion, should have been rendered in the court below, it is ordered, adjudged and decreed that the injunction be made perpetual for the excess of interest; that for the balance it be provisionally reinstated; and the case remanded for further proceedings, with directions to the judge to allow testimonial proof of the usury; the defendant and appellee, paying the costs of the appeal.