
    No. 279
    ALSTON, Assignee v. AMERICAN MTGE. CO.
    No. 20323.
    Supreme Court
    On motion to certify.
    Dock. 2-11-27,
    5 Abs 105.
    631. INTEREST & USURY — Can defense of usury be interposed when it is not shown that interest was fixed at a rate per cent; but that the mortgage was in excess of the actual amount borrowed?
   A petition was filed in the Butler. Common Pleas by Elbert Alston, the Assignee, to selL the real estate of the Assignor, the Hamilton Arcade Company, a corporation; and The American Mortgage Company, one of the defendants, filed a cross petition setting up two Teal estate. To this cross petition the plaintiff ffinterposed the defesse of usury. The case was submitted upon these two pleadings, the cross petition and the amended answer of the plaintiff thereto

Attorneys — Andrews & Rogers and Giffen & Haines for Alston; E. A. Belden for Mfg. Co.; all of Hamilton.

The Court of Appeals held that the defense of usury could not be made by a corporation or its Assignee by reason of the act of April 29, 1921, 109 O. L. 231.

The claim of the plaintiff in error is that the terms of said act were not complied with, in the failure to state the rate of interest reserved on the two loans made to The Hamilton Arcade Company, and that after specifying in the notes a rate of seven per cent, included as a part of the principal a large amount in excess of the money loaned, and that therefore The American Mortgage Co. is not entitled to the benefit of the last clause of said act denying the defense of usury by a corporation or any one in its behalf.

Note — Motion, to certify allowed, 5 Abs. 154.  