
    Reed vs. Moore, et. al.
    
    jpjLiSA'Dris’Gr. Pled in bar must answer ilie whole gravamen. A plea in bar; pleaded to the whole declaration, must contain a sufficient answer in law fo the whole gravamen, or cause of action: otherwise it is ill for the whole; and the plaintiff is entitled to recover for the whole. Gould’s PI. c. 6, § 98, and authorities there cited.
    Same. When ptea answers only part how to except to it. Where matter, pleaded as an answer to the whole* is in law a good answer to apart only, the proper mode of excepting to it is by demurrer* Id. Ibid. § 104, subsec 1; 1 Saund. 28. (n. 3).
    Same. Same — usury. Therefore as a usurious contract is not void in totoT but only for the excess of usurious interest; if a defendant, who is sued on such contract, plead the usury as an answer to the whole demand, it is bad on, general demurrer, and the plaintiff will be entitled to judgment for the whole.
    Charles and Solomon Reed, on the 15th of April, 1820, executed their bill single to Joseph Hurley, of whom the defendants in error were administrators, for the payment, three days after the date, of seventy dollars and seventy-five cents for value received. The defendants in error sued Solomon Reed upon this hill in Greene circuit court, on the 29th of August, 1836. He craved oyer of the bill, and of certain payments endorsed, and then “for plea in this behalf said, that he executed the said note as the security of said Charles Reed; that the consideration given and paid to the said Charles was the sum of thirty-seven dollars and fifty cents, and no more, by way of loan, from the said Joseph Hurley to the said Charles; and that upon such advance and loan, said Hurley corruptly took and exacted usuriously of and from said Charles, the sum of thirty-three dollars twenty-five cents, by way of interest, and for forbearance for three days of payment of said sum of $37 50 c., which said sum was included in said note. And so said defendant says the said contract was usurious for the sum of $33 25 c., part of said $ 70 75 c., included in said note. All which he is ready to verify; wherefore he prays judgment, if plaintiffs their action shall have and maintain.” The plaintiffs demurred to this plea, and defendant joined in demurrer.
    At November term, 1837, his Honor Judge Powell, of the first circuit, sustained the demurrer, and the defendant not asking leave to amend, gave judgment for the whole debt '«f $70 75 cents, and interest and costs, from which judgment the defendant appealed in error.
    June 7.
    Arnold, for plaintiff in error.
    R. J. McKinney, for defendant in error.
   Turley, J.

delivered the opinion of the court.

This is an action of debt to which the defendant has pleaded in bar, that the contract on which it is founded is usurious for the sum of thirty-three dollars twenty-five cents.

This plea it is contended is bad upon general demurrer, and we think correctly. A usurious contract is not void in loto, but only for the excess of usurious interest. The matter of the plea then is not a bar to the whole cause of action, but only to so much as is usurious. That a plea is bad upon general demurrer, which purports to answer the whole cause of action, but can by law only be an answer to a part, is too plain a proposition to be discussed.

The form of this plea is a bar to the whole cause of action, the commencement is, “for plea in this behalf says,” and the conclusion is, “wherefore he prays judgment, if the plaintiff his action shall have and maintain.” If issue had been joined upon this plea, and it had been found for the defendant, the plaintiff could not have had judgment for this debt with legal interest.

The form of the plea should have been “for plea as to the sum of $33 25 cents, a part of the plaintiff’s cause of action says,” and in the conclusion, “wherefore he prays judgment if the plaintiff,his action aforesaid for the said sum of $32 25 cents, shall have and maintain.” To a plea' in this' form the plaintiff might have replied and taken issue upon' the' question of usury and have had judgment by nil dial for his debt with legal interest.

We therefore think there is nó error in this case, and affirm' the judgment of the court below.  