
    Weimer v. Shelton.
    1. If a plea professes in its common cement to answer the whole cause of action, and afterwards answers only a part, the whole plea is bad on general demurrer.
    2. A general averment, in a plea of usury, that a certain sum was for usurious interest “ upon other and preceding transactions,” without specifying in what way that usurious interest accrued, does not comply with the moaning of the statute, which requires the “special facts” to bo stated.
    3. A security may avail himself of the defence of usury as well as the principal. An endorser for accommodation is regarded in the light of a security, and as such is entitled to avail himself of any defence which would have availed the maker.
    Appeal from the Circuit Court of St. Louis county.
    
      J. B. Bowlin for Appellant.
    
    The only question here is as to the validity of the plea,. ^ea s^ows au ainount °f us|iry that covers the whole' claimed, and avers the note void. The demurrer admits the usury, and so admitting avoids the note under the? statute- See R. C. page 333, sec. 4.
    O. D. Drake for Appellee.
    
    1st. That the record shows nothing to rebut the conclusion that evidence was given under the common counts, upon which the court below might properly have rendered the judgment it did. There should have been a bill of exceptions to show that no such evidence was given.
    2d. That the matters set forth in the defendant’s last plea constitute a defence personal to Call, the maker of the note, of which the defendant cannot avail himself, unless he shows himself to be an accommodation indorser for Call, without consideration, which the plea does not show; but, on the contrary, authorises the conclusion that he was indorser for value.
    3d. That an endorser for value cannot inquire into the consideration passing between the maker and the indorser, he not being privy to the matter.
    4th. That the plea is vague, uncertain and indefinite, in setting out the alleged usurious contract between Call and Shelton.
    5th. The plea prays a deduction from the note of #90, which by defendant’s own showing was not reserved as interest on the note sued on, but on other notes previously given.
    6th. That the plea alleges an inconsistency, in stating in one place the $90 to have been for usurious interest accrued, on other notes, and in another place designates it as a part of the usurious interest' agreed by Call to be paid for the forbearance of the sum of three hundred dollars.
   Opinion of the Court by

Napton, Judge.

John G. Shelton brought an action of assumpsit against Weimar, on a negotiable note drawn by one George W. ‘Cali lo the order of said Weimar, and endorsed by to the defandant in error. The note was for three dollars, payable in four months. The declaration contained a special count on the note and the common counts. The defendant, Weimar, pleaded, first, non-assumpsit; second,, set-off; third, payment; and lastly, a special plea in bar, setting forth a usurious transaction between Call and Shelton. This last plea commenced in the form usual when the plea is designed to answer the whole action; it averred that the note was given in pursuance of a usurious agreement between Call & Shelton, in which Shelton advanced to Call one hundred and fifty dollars, and took his note at four months, for three hundred dollars, sixty dollars of which was usurious interest upon the sum advanced, and ninety dollars was usurious interest upon other and preceding transactions; which preceding transactions are not set forth in the plea. The plea concludes as follows: “ wherefore the said defendant saith, that in pursuance of the statute aforesaid, he the said defendant is entitled to a deduction of the said sums of sixty and ninety dollars aforesaid, from the amount of said note in the said first count of the plaintiff’s declaration mentioned, and that the said plaintiff ought to be barred from having and recovering of him the said defendant, so much of the amount in said note specified, as amounts to the usurious interest so corruptly retained as aforesaid, all which he the said defendant is ready to verify, wherefore he prays judgment if the said plaintiff ought to have and maintain his action aforesaid against him.”

If tt plea professes in to ^an" swer the whole oause afterwards1101 answers^only whóle'plea is baden general demurrer.

To the first three pleas the plaintiff replied and took issue, and demurred to the fourth. The demurrer was sustained, and the defendant had leave to amend; afterwards ieave to amend was waived, and the remaining pleas were withdrawn, and judgment given by nil (Licit against the defendant. Weimar, relying on his fourth plea, brings the case here by appeal.

The objections to this plea are two-fold. The plea in r •> „ . . . , . iorm commences by professing to answer the whole action, and does not propose to answer a part only. The defendant says that “ the plaintiff ought not to have or maintain his aforesaid action thereof against him, because,” &c., pro-in its commencement to answer the whole cause of action, it only answers a part, and in conclusion prays judgment as though the whole cause of action were answered. The .whole plea was therefore bad on general demurrer. 1 Chitty on Plea. 555; Hallett v. Holmes, 10 Johns. R. 28 ; Nevins v. Keeler, 6 Johns. R. 64; 1 Saund. 28, No. 3;. Everard v. Patterson, 6 Taun. 646; Woodward v. Robinson 1 Str. 303.

A general averment, ry, that a oor-for"1 usurious interest “upon other preceding' eifying in thaf usurious interestae-cni6u docs not comply neaniog0 of the statute, quires r<thc “ special facts” to be stated.

A security himselfof the defence of usury as well as the princi-dorserfor commoda-edinthelight of a security, and as such is entitled to ofanydefenee •whieh would the maker.

The form of the plea is also objectionable in this: that tho transaction in which the ninety dollars of usurious interest accrued, is not set forth. The statute says it shall be lawful ^01’defendant to set forth the special fact in pleading, and a general averment that a certain sum was for usurious . , ._ . . . interest, without specifying in what way that usurious inter-accrued> does n°f comply with the meaning of the act.

It remains to be considered whether if the plea were ameaded in these particulars, it would constitute a good de-fence to the action. This question is not,necessarily inyolv- ^ * ed in the determination of this case, but a case between the same Parties, involving this question, having been remanded by the court at its present term, an opinion on the merits defence is deemed proper. The court are all of opinion that a security mav avail himself of the defence of usu- . . ‘. ‘ ry> as well as the principal. An endorser for accommodation is regarded in the light of a security, and as such is entitled to avail himself of any defence which would have availed the maker. As the act regulation interest stood at .... . ° ° the institution of this suit, the excess of the usurious interest rea^sutn of money advanced was adjudged against the lender, and it became a debt of record, upon which the PartJ’ setting up the usury could on motion have judgment, This provision presents a serious difficulty in allowing this , „ ■ ‘ J ° deience to be set up by a security, as it would seem to be intention of the legislature that the party whose necessities had been taken advantage of should alone be entitled to lhe benefit of this provision, But however this may be, and whatever would be the proper course when a case of this kind arises, it is clear that to construe the act so as to preclude securities from settingup its provisions as a fence, would enable usurers, by a very simple and easy device, to evade the law completely. Under the act as it was amended at the last session of our General Assembly, I apprehend this difficulty will not arise, defendant being by that act merely relieved from the payment of usurious interest, and the penalty imposed on the lender going to the common' school fund.

Judgment affirmed.  