
    Causey vs. Yeates.
    1 Where a party sues on a contract which exhibits a reservation of usury, no recovery can be had. Where the usury does not appear by the contract, but is declared by plea, the plaintiff shall recover his debt and legal interest, by virtue of the act of 3835, ch. 50.
    2. Where a person had borrowed money at usurious interest, but which the contract did not exhibit, and gave a pledge for its repayment, he could not treat such contract as void, and sue for the recovery of the pledge without a tender of the money actu“ ally due, and legal interest thereupon.
    Trover in the criminal and commercial court at Memphis, for a promissory note, by Causey against Yates. Plea not guilty, and issue.
    The case was heard by judge King and a jury, at the April term 1848, and a verdict being found for the defendant, and judgment rendered thereupon. The plaintiff appealed. The evidence and the charge of the presiding judge, is sufficiently-set out in the opinion of the court.
    
      H. W. Anderson, for the defendant.
    There was no demand, and consequently no conversion of the note, the original taking not being tortious. 29 Com. L. R. 13; 20 do. 60; 6 do. 357; 16 Wend. 243.
    2. The contract was void for the excess only, not in toto: act of 1835, ch. 50;Meigs, 80; 6 Hum. 277; 5 Yerg. 199.
    2. There,was no tender of the sum actually due, and interest. This'was necessary to maintain an action.
    Wickersham, for the plaintiff.
    A contract which is usurious ■ is void, 6 Humph. 277 — and trover for a pledge, to secure the payment of such a loan, will lie without payment or tender of the debt. 20 Eng. Com. L. R. 60.
    Trover will lie for a pledge as soon as the debt due is. tendered, 5 Yer R. 199. And it is not necessary to pay the money into court; such a proposition is legally impossible. Money cannot be paid jnto court on a case, before the case is in court; nor can the suit be brought before the caiise of action is complete. Bringing the suit and paying the money into court, would each be a condition precedent to the other.
   Green, J.,

delivered the opinion of the court.

This is an action of trover, to recover back a promissory note on R. Topp and W. L. Vance, payable to the plaintiff, and which he had pledged to the defendant, as collateral security for money loaned on a usurious contract.

On the trial the plaintiff proved the pledge of the note, and that when the money w,as loaned by the defendant, usurious interest was reserved. The plaintiff also proved by W. H. Kerr, that he was agent for the plaintiff, and as such went to the defendant, about the last of April, 1846, and told him he had come to settle the matter between him and Causey — and produced the paper containing their contract, and read it to him. Yeates, the defendant, replied, he had rather see Mr. Causey and settle with him — that he believed he had disposed of the note, or was about to do so. Witness had the money, but did not offer it, nor exhibit it, because he thought from what Yeates said, he would not receive it. The court charged the jury,' that to entitle the plaintiff to recover, the money actually due on the contract, must be tendered, — :and that it must also appéar that said money was brought into court, and ready to be paid to the defendant. The jury found .a verdict for the defendant — and the plaintiff appealed to this court.

The first question is, whether a tender of the money advanced to the plaintiff, and legal interest thereon,. should not have been made in order to entitle the plaintiff to recover? Our statute, (act 1835, ch. 50, sec. 3, 4 & 5,) provides that when a greater sum than six per cent, per annum is reserved, and suit is brought for. the same, the defendant may avoid the excess over legal interest, by plea on oath, setting forth the usury — and when the plaintiff admits the usury, or it shall be shown by proof, it shall be deducted from the claim, and judgment shall be given for the balance. .Although the, statute declares that it shall be unlawful to receive more than six per cent, per annum, and the party guilty of taking usury, is indictable — yet when the usurious nature of the contract is disclosed by the plea of the defendant only — in such case, the contract is not void in toto — but is valid for the sum actually due, and legal interest thereon. Meigs Rep. 80. If a plaintiff sue upon a contract usurious upon its face, and in stating his case, the usury is made to appear, this court has held that he cannot recover, even the sum actually advanced. Isler vs. Brunson, 6 Hump. R. 277. The reason is, that his contract is illegal, for which he may be indicted, and he is repelled, upon the well settled principle, that the courts will not lend their aid for the enforcement of a contract, which is in violation of the law of the land. But when the usury is made to appear by the plea of the defendant only, the contract is held to be good for'the sum due, and interest. It follows from these principles, that in this case the plaintiff could not treat the contract with the defendant as being void, and maintain trover for the pledge, without a tender, by him, of the sum due on the contract after ^deducting the usury. The case referred to in 20 Eng. Com. L. R. 60, is not analagous to the one before us, because, the British statute declares that an usurious contract shall be void. In reference to that statute, the case referred to, is decided correctly. But here, whenever the party to whom money is advanced upon an usurious contract, is the actor, and discloses the usury, he can only avoid the excess over the legal interest.

'The court erred, in stating to the jury that the plaintiff must prove that the money was in court, ready to be paid to the defendant. • After a tender had been made, and arefusal to receive the sum actually due, the plaintiff’s cause of action would have been complete — and of course he would be entitled to recover, without performing any subsequent act: 5 Yerg. 199. But in this case there was no evidence that the note sued for had been demanded — and consequently, there was no proof of a conversion. A tender of the money due would have been equivalent to a demand, but no tender was made. The witness says he told the defendant that he had come to settle the matter; but in what Avay he proposed to settle, he did' not state. He said nothing about paying the money due. It may have been his intention, so far as the defendant knew,- to insist that the contract was wholly void, and that the pledge should he delivered up. The error therefore, of his honor, could not effect the result of the case. Affirm the judgment.  