
    * Isaac Thompson, Executor, versus Jacob Thompson.
    Where at the making a promissory note bearing legal interest from its date, an extra premium was also paid, the note was held to be usurious and void.
    Assumpsit upon a promissory note, made by the defendant to Solomon Thompson or order, and endorsed to the plaintiff’s testator, William Bennett.
    
    The cause was tried upon the general issue, before Parsons, C. J., at an adjournment of the last October term in this county, and a verdict taken for the plaintiff by consent, subject to the following facts contained in the chief justice’s report: —
    On the third of October, 1807, one Theodore Mitchell was justly indebted to Bennett, the testator, in the sum of 190 dollars 73 cents, and at the same time the defendant was justly indebted to the said Mitchell in the same or a greater sum. On the request of Mitchell, the testator agreed to discharge his debt, upon the defendant’s giving a note for that sum, with an endorser, payable in one year with interest, and also paying to the testator, on the delivery of the note, a sum of money equal to three per centum upon the amount of the principal debt. Pursuant to this agreement, the defendant made and delivered the note declared on, being for the debt justly due, the said Solomon Thompson being only a surety, and at the same time paid the further sum of three per centum to the said testator, who thereupon discharged Mitchell. If the said note, in the opinion of the Court, be void, as against the statute of usury, the verdict was agreed to be set aside, and a general verdict entered for the defendant; otherwise the verdict to stand, and judgment to be entered upon it.
   The action being continued nisi for the decision of the whole Court, their opinion was delivered to the following effect, at an adjournment of the last March term in Suffolk, Parsons, C. J., Sewall and Parker, Justices, being present:

By the statute of 1783, c. 55, for the restraining the taking of excessive usury, it is enacted that all contracts and assurances whatsoever, made for the payment of any principal or money lent, upon or for usury, whereupon or whereby there shall be reserved or taken above the rate of six pounds in the hundred, shall be utterly void.

*In the case at bar, besides the,legal interest of six per cent, per annum, reserved in the note, there was paid another sum, equal to three per cent, of the principal. There was. then, more than legal interest reserved by the note, and it thus became usurious and void by the statute. The case of Fisher qui tam vs. Beasley is an authority in point. This was a prosecution for the penalty, the facts being similar to those in the case before us ; and the argument was that the usury was complete on the extra payment made at the time of giving the security, and that the action was therefore barred by the statute of 31 Eliz. c. 5, 5, limiting popular actions to a year after the offence committed. The Court were unanimously of opinion, that the bond given was void. — The verdict must be set aside, and a general verdict entered for the defendant, and judgment accordingly. 
      
      
        Doug. 235.
     