
    Stephen P. Gardner versus Josiah Flagg.
    Where more than legal interest has been taken on a loan of money, the mortgage or other security for such loan is not therefore void, unless the same was originally reserved thereon; although the party may be liable to an indict ment, or an action for the forfeiture ¿fiven by the statute.
    
      This was a writ of entry to foreclose a mortgage, originally made by the tenant to William, Stedman and Caleb Moore, executors of the last will of James Richardson, deceased, and by them assigned to the demandant.
    * The tenant pleaded five several pleas in bar. The three first resulted in issues to the country. The fourth alleged that the mortgagees had taken and received of the mortgagor more than the rate of six per cent, for the loan and forbearance of the mortgage money for the year 1800, viz., 135 dollars for the loan of 750 dollars. The fifth plea alleged the taking and receiving the sum of 90 dollars for the loan of the same sum for the year 1801. To both these pleas the demandant demurred generally; and the tenant joined in demurrer.
    
      Lincoln in support of the demurrer.
    The statute  does not make the security void, where usurious interest has been received upon it, unless the same was originally reserved by the contract. The receiver may be liable to a penalty under the statute, by indictment or by an action of the case, but the contract is not avoided. Such has been the construction of the English statutes,  the language of which is similar to ours, and the same opinion is said to have been held in our own courts, although we have no reports of the cases.
    
      Bigelow for the tenant.
    The statute is express that all mortgages, &c., whereon there shall be taken more than at the rate of six per cent., shall be utterly void. The provision in the second section of the statute for the debtor’s swearing is not found in the English statutes ; and the effect of the debtor’s oath being to avoid the contract absolutely, it should seem that another construction ought to be given to similar words used in the same statute. The expression in the first section, upon which the pleas in the case at bar were formed, is “ reserved or taken; ” and in the second section the words are “ taken, reserved, or secured.”
    
      
       1783, c. 55.
    
    
      
       1 Saund. 295. — T. Raym. 196, S. C. —1 Mod. 69.—1 Vent. 38.
    
   By the Court.

The security is not void, although an indictment, or an action of the case, may lie for receiving the usury. Let the demandant have judgment on his demurrer.  