
    * Ebenezer Thompson, Administrator of Eleazer Putnam, versus William Woodbridge.
    Where usurious interest is not originally contracted for, though it be afterwards received, the security is not avoided, though the receiver may be subject to the penalty provided by the statute.
    Assumpsit on a promissory note made by the defendant, and dated January 14th, 1797, by which he promised to pay to the said Eleazer, then living, four hundred dollars on demand with interest.
    At the trial on the general issue, the defence was, that the note declared on was a usurious contract. A verdict was taken by consent for the plaintiff, subject to the opinion of the court, on the following facts, agreed by the parties, viz.: —
    On the 11th of January, 1796, the defendant made to the said 
      Eleazer a promissory note for the payment of one thousand dollars within six months, with interest after that period. On the 14th of July, in the same year, the defendant paid the said Eleazer one hundred dollars in part, which was endorsed. On the 14th of January, 1797, the defendant paid the said Eleazer fifty-four dollars for the interest, and five hundred dollars more in cash, and at the same time the defendant gave the said Eleazer the note declared on for four hundred dollars; and the said Eleazer thereupon delivered to the defendant the first-mentioned note.
    If, upon these facts, the Cpurt should be of opinion that the note •declared on was void as an usurious contract, it was agreed that the ■verdict should be set aside, and a general verdict be entered for 'the defendant; otherwise that judgment should be rendered on the 'verdict already found.
    
      Ward, for the defendant,
    argued that this note was void, as being ■substituted for another, on which usury had been paid and received. It was, in fact, a security for the balance of the former note, including the usurious interest which had been paid thereon, and in effect may be considered as a note in part given for that very usurious interest. 
    
    * Bigelow, for the plaintiff,
    referred to the case of Turner vs. Hulme. 
      
    
    
      
       3 D. & E. 537, Tate vs. Wellings. — 7 D. & E. 184, Maddock vs. Hammet
      
    
    
      
       4 Esp. Rep. 11.
    
   By the Court.

Where usurious interest is not originally contracted for, but is afterwards received, the party receiving it is subject to the penalty provided by the statute; but the note or other curity is not. avoided.

Judgment on the verdict.  