
    BLACK vs. HIGHTOWER.
    [ACTION ON PROMISSORY NOTE — PLEA OP USURY.]
    1. Costs on successful plea of usury. — To authorize a reversal of the judgment, at the defendant’s instance, on account of the refusal of the court below to impose the costs on the plaintiff, when the plea of usury was successfully interposed, the record must show that an intentional reservation of usurious interest was proved : if the bill of exceptions does not purport to set out all the evidence, the appellate court cannot infer that this proof was made, from the mere fact that the plaintiff recovered a judgment for less than the amount of his note.
    Appeal from tbe Circuit Court of Randolph.
    Tried before the Hon. E. W. Pettus.
    J. W. GuiNN, for appellant.
    JNO. T. Heflin, contra.
    
   WALKER, J.

The only question in this case is, whether the court erred in refusing to tax the plaintiff, who recovered judgment, with the costs of the suit. It is contended that the costs ought to have been imposed upon the plaintiff, upon the authority of section 2377 of the Code, which is in the following words: “If it be made to appear that usurious interest has been intentionally taken or reserved, the defendant recovers full costs.” It is manifest that, under this law, we cannot say that the court erred in refusing to impose the costs upon the plaintiff, unless it appears from the record that the proof showed an intentional taking or reservation of usurious interest. The bill of exceptions does not show that there was no other evidence in the case than the testimony of the defendant, nor does it show that the testimony set out in the bill of exceptions is all the evidence upon which the plaintiff’s demand was sealed by the jury. We cannot intend, for the purpose of reversing the judgment, that the bill of exceptions contains all the evidence upon wbicb tbe jury acted, or upon wbicb tbe court predicated its refusal to impose tbe costs upon tbe plaintiff; and we cannot say tbat tbe court erred, unless we were informed by tbe bill of exceptions upon wbat its decision • was based.

Tbe judgment of tbe court below is affirmed.  