23 Ind. 119 | Ind. | 1864
The appellant brought his action in the court below to recover the sum of $600, charged to be due upon a promissory note, executed by the appellees on the 22d day of 'September, 1859, and due one year thereafter. The appellees filed answer to the first and second paragraphs, to which the appellant demurred separately. The court overruled the demurrers; to which rulings the proper exceptions -were taken, and issues were formed and the cause tried, resulting in a finding and judgment for appellees. The only questions presented in this case are as to correctness of the action of the court upon the demurrers. The appellees averred, in the first paragraph of their answer, that on the 29th day of November, 1854, the appellant held four certain promissory notes, executed by said Fleming, (copies of which were filed,) and that appellant computed interest thereon from their respective dates to said time, at the rate of sixteen per cent, per annum,
The second -paragraph of the answer was a plea of set-off “for money paid to the plaintiff (appellant) for the use and forbearance of payment of said sums,” etc. This paragraph is defective in not having charged that the money paid, and which the plea tendered as a set-off, was for usurious interest. The demurrers should have been sustained to the first and second paragraphs of the answer.
Judgment reversed, and cause remanded.