
    William Cummings versus Elias Blake & als.
    
    Under Revised Statutes, c. 69, § 7, where the damages in an action on a note alleged to be usurious, are not reduced by the oath of the defendant, but by the voluntary act of the plaintiff', in indorsing the amount received as usurious interest on his note, after the commencement of the suit, the defendant is not entitled to costs.
    This suit was on a promissory note made March 5, 1841, by defendants to plaintiff for $400, payable in one year with interest. The defence was usury, to be proved by the oaths of the makers. The trial was before Shepley C. J.
    The defendants testified that they received but $352 of the plaintiff when the note was made, the balance, $48, being allowed for 12 per cent, interest in advance; that about the expiration of the year, they obtained delay, and paid $38, of which only $14 were indorsed ; and that on March 7, 1843, they paid $58,60, of which $34,60 were indorsed, which paid the interest for one year in advance, $ 10 for deficiency of interest paid the year before, and 60 cents interest on that sum.
    The plaintiff testified that all which he ever received on account of the note in any manner had been indorsed, three sums of $24 each, having been indorsed on the note since the commencement of this suit by his direction ; that the defendants said the $24 was a present, but the indorsements include all sums received as present or interest. Thereupon the defendants submitted to a default.
    The case was brought into this Court by demurrer, and the indorsements of the illegal interest were made since the case came into this Court.
    The Court is to cause the proper judgment to be entered, or grant a new trial if necessary.
    
      Godfrey, for defendants.
    Both parties say on oath, that 12 per cent, interest was agreed for. The excess is void by c. 69, § 3. By indorsing a part of this excess, the plaintiff affirms the 12 per cent. The plaintiff should not be allowed to alter the state of things as it was in the District Court. If the law will allow the alteration of claim, the statute against usury becomes a dead letter. In assumpsit, the plaintiff cannot alter his bill of. particulars. Babcock v. Thompson, 3 Pick. 446 ; Varnum v. Bissell, 14 Pick. 191. The statute against usury is penal, and is not to be evaded. Warren v. Coombs, 20 Maine R. 139. The Court would not allow the indorsement to be made after the evidence is all out, and the case is ready for the jury. Neither should it be made in the office of the plaintiff’s counsel, as in this case. Indorsements made after suit brought are nullities.
    
      Hathaway &/• Peters, for the plaintiff.
   Wells J.

The question raised in this action, relative to costs, was decided in Wing v. Dunn & at. 24 Maine R. 128. By § 7, c. 69, Rev. Stat., the plaintiff was bound to pay costs to the defendant, provided the damages were reduced by the oath of the latter. The act of July 22, 1846, c. 192, provides for the recovery of costs by the defendant, upon a reduction of damages by proof of the usurious interest. By a subsequent act passed August 7, of the same year, it was provided, that the former act should not embrace pending suits.

This suit was commenced Sept. 9, 1844, and is therefore to be determined by the provision of § 7, c. 69, although that section is repealed by the act of July 22. The damages in this action are not reduced by the oath of the defendants, but by the voluntary act of the plaintiff, in making an indorsement on his note. The plaintiff was probably induced to make the indorsement from the apprehension of a reduction by the defendant’s oath. But the statute does not extend to such a case, so as to give costs, although it appears that usurious interest was paid. Costs cannot be allowed unless they are given by statute.  