
    DURNFORD vs. BARITEAU.
    East'n District.
    May, 1818.
    APPEAL from the court of the first district.
    The plaintiff obtained a writ of seizure on a notarial instrument, executed by the defendant, who had a provisional injunction, on a plea ci paynient. The parties proceeded to trial, and there was jud~nient for the plaintiff-the defendant appealed.
    The whole evidence caine up with the record, and consisted only of the deposition of a witness. lie deposed that, about two years ago, the plaintiff desired him to call on the defendant for the principal of the claim in suit; hit the defendant always put him off&emdash;that he. knows the the defendant paid the interest, at the rate of two per cent, per month, during the last four months-that he has given a receipt, dated April 7, 1817, for two months of that interest&emdash;that the plaintiff told the witness the defendant owed him for some syrup&emdash;that he knows the three endorse-merits on tbe~ notes produced to be in the proper handwriting of the plaintiff&emdash;that the plaintiff never spoke to him of the interest paid by the defendant&emdash;that he never received any uote for the plaintiff from the defendant&emdash;that the plaintiff negociated his own affairs with the defendant-all which he knows, having frequently seen the defendant at the plaintiff's.
    
      If illegal in terest has been paid, the difference between five per Cent. and the rate at which it has been paid, must be imputed on the principal.
    
      The notes produced were of the defendant to the plaintiff endorsed, in blank, by the latter; one of December 31, 1816, for $449 16, payable February 4, following-another, of February 19, 1817, for $467 79, payable on the 4th of April, 1817-the last of the 4th of April, 1817, for $472 34. payable one month after date.
    At the trial, the defendant offered to prove, by a person who had been agent for the plaintiff for the three last years, that the plaintiff is a noted usurer. and did no other business but to lend money at an illegal interest, and to shew what interest the plaintiff is in the habit of taking, in his transactions with the people. The court refused to examine the witness, and the defendant excepted to its opinion in this respect.
    Morel, for the defendant,
    The defendant has paid the plaintiff interest above the legal rate, and therefore, in conformity with the civil law, is entitled to a credit on the notes for the amount thus paid beyond the legal interest, Les interets pages an dessus du taux legal sont sujets a repetition (par imputation sur le cap-tal qui est encor du.) Dictionnaire da Digeste 100, verbo condicto indebiti, n. 10. Justin. digest, 12, 6, 26, with the commentary of Godefroy, Porthier Pandectae Justinianeau, 22, 1 n. 36. Voet in Pandictis, 12, 6, n . 13. 1, Clef des Lois Romaines, 507, verbo, Interest, 5 Rodriguez Digesto Teorico Practico, 126, 7 Promptuani Mullesi, 703, n. 11. The amount paid is proved by the receipt of the plaintiff’s agent, and by the notes of the defendant in favor of the plaintiff, which have been paid, and are now in the hands of the defendant. And as there was no written convention or other account of the interest, it must be reduced to the legal rate, five per cent, per annum.
    If the defendant be entitled to credit, on the principal, for the excess of interest he has paid, he had a right to shew the ordinary rate, at which the plaintiff lent his money to others, and the judge erred in rejecting the witnesses offered for that purpose.
    
      Hennen, for the plaintiff.
    Whatever payment of interest has been made to the plaintiff, above the legal rate, was for the forbearance of exercising a legal right of enforcing payment ; and that being a valid consideration founded in equity, the defendant has no right to recall that payment: volenti non fit injuria. At all events, the interest can be reduced only 10 per cent per annum, as there is written evidence between the parties of an agreement to pay more than the legal rate. The notes offered in evidence by the defendant, cannot be considered as a payment of the present demand : they carry on the face a consideration, and unless proof be produced that they were given in payment of this claim, the court is bound to consider them as the payment of some other debt.
    The judge did not err, in rejecting witnesses offered to prove what interest the plaintiff may have received in other cases. On the plea of payment by the defendant, the plaintiff could not imagine that it was necessary for him to be provided with testimony to contradict the witnesses offered. Indeed if usury had been pleaded, the testimony could not have been received.
   Martin, J.

delivered the opinion of the court. We are of opinion that the district court did not err in rejecting the evidence thus offered. The defendant has relied on no other plea than that of payment. This plea may give the plaintiff sufficient warning, that the defendant contends that he has received something which ought to go to the discharge or reduction of the claim ; but it cannot so far put him on his guard as to induce him to come prepared to defend his general conduct, or to meet any charge, in respect to his transactions with other people.

The defendant contends that the court below erred in refusing to consider three notes which he introduced, as payment of monies in discharge of the hood, and in refusing to allow a deduction for the, excess of interest, or illegal rate of it, proven by the witness.

We cannot see on what grounds it can be ascertained or presumed, that the notes were given in part payment of the plaintiff’s claim. A note is prima facie evidence of a new debt; if its object he the payment of a former one, that circumstance must be proven.

Tne defendant having proven payment of interest at the rate of eight per cent, for four mouths, (two per cent, per month,) while the legal interest during that period, (at five per cent, a year,) is only one and two-thirds per cent.-the excess, six and one-third per cent is a payment which ought to he deducted from the principal. We cannot agree that the previous interest being presumed or proven to have been paid, must he presumed to have been so, at the rate of two per cent, per month. Neither can we think, with the plaintiff’s counsel, that the defendant cannot avail himself, under the plea of payment or what, in the opinion of the counsel, is hardly available on the plea of usury. Under a plea of payment, the defendant may give evidence of any money paid by him to the plaintiff, and the court will deem it to have been paid in discharge of the debt, if the plaintiff cannot shew that he has a right to apply it otherwise.

Neither can we allow conventional interest, at any rate between five and ten per cent, a year, because conventional interest must be fixed in writing. Civ. Code, 408, art. 32.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed : and this court doth further order, adjudge and decree, that the defendant be allowed the payment of two hundred and six dollars and sixty-six cents and two-thirds-and that this sum, being deducted from three thousand one hundred dollars, the plaintiff do recover from the defendant the balance, viz. two thousand eight hundred and ninety-three dollars and thirty-nine cents and one-third, with costs in the inferior court, and interest on the said balance, at five per cent, from the institution of the suit till paid-and That the plaintiff and appellee pay the costs of the appeal.  