
    Robert I. Burbank vs. Benjamin Woodward.
    Suffolk.
    March 25.
    April 3, 1878.
    Colt & Morton, JJ., absent.
    In an action on a promissory note made in 1861, to which the defence was usury, the plaintiff became nonsuit before trial; and the judge overruled a motion of the defendant that judgment be entered for him in order that he might, under the Gen. Sts. c. 53, § 4, recover threefold the amount of the interest unlawfully reserved. The defendant alleged exceptions. Held, that the plaintiff had a right to become nonsuit; and that the exceptions must be overruled, with double costs.
    Contract upon a promissory note for 181.87, dated September L3, 1861, signed by the defendant in the presence of an attesting witness, and payable to the order of the plaintiff, in two years from date, with interest. Writ dated February 14, 1877.
    In the Superior Court, the defendant filed an answer setting up, among other things, that on November 6, 1855, Clark Bacon, now deceased, made a promissory note payable to the order of the plaintiff in six months from the date thereof, for the sum df $505, and the defendant signed the note at the request of the plaintiff; that at the same time the plaintiff computed the interest on the note at the rate of twenty-four per cent, per annum for six months, amounting to $60.60, which was greater than the rate then allowed by law, and was usurious and unlawful ; that Bacon and the defendant gave the plaintiff a note for $60.60, the interest computed as aforesaid, payable in six months, with interest; that the note in suit is a renewal of the note of $60.60, which is a contract for the payment of interest of money at a greater rate of interest than was then allowed by law; and that the defendant claims his costs, and that the plaintiff forfeit threefold the amount of interest unlawfully reserved or taken, amounting to $184.20, with interest thereon from the date of the note in suit. The answer was filed'November 20, 1877, and on the next day the plaintiff became non-suit.
    On December 19, 1877, the defendant moved the court to order judgment for the defendant, in order to enable him to enforce the claim for $184.20, under the Gen. Sts. c. 53, § 4. Dewey, J., overruled the motion ,• and the defendant alleged exceptions.
    
      JF. Woodside, for the defendant.
    
      J. M. Way, for the plaintiff, moved for double costs.
   By the Court.

The plaintiff, upon the filing of the answer and before the trial, had the right to become nonsuit, without consent of the defendant or leave of the court. Haskell v. Whitney, 12 Mass 47, 48. Truro v. Atkins, 122 Mass. 418.

Exceptions overruled, with double costs.  