
    J. F. Harris v. J. G. Hollowings’s Ex’r.
    U sury — Pleading.
    It is not necessary that a defendant plead the payment of usurious interest. If such facts are made to appear by plaintiff’s statement they are sufficient, and defendant is entitled to credits on the debt to the amount of such usurious payments.
    APPEAL FROM McCRACKEN CIRCUIT COURT.
    February 12, 1875.
   Opinion by

Judge Lindsay:

Appellee’s petition and exhibits show that the principal sum ($9,000) was by the contract of loaning to bear interest at the rate of eight per cent, per annum. The payment in advance of the first half of the yearly instalment embraced two per centum of usurious interest. The interests Nos. I, 2, 3 and 4 that were paid at maturity, each embraced two per centum of usury, and so with notes Nos. 5, 6, 7 and 8, consolidated into the note for $1,429.69, bearing date March 28, 1872. Note 12 also embraced the same amount of usury, and we may presume from the petitions that Nos. 9, 10 and 11, each of which was so tainted, were each paid off in full. It is manifest, therefore, that if the usurious interest, so paid had been credited on the principal sum at the date of such judgment, the judgment against appellant would have been for a much smaller amount. It was not necessary that appellant should plead the payment of usurious interest, and ask to be credited by them. They each and all appear from appellee’s statement of his own case.

The statute in force in 1868, when the contract was entered into, provided that all contracts and assurances, made directly or indirectly for the loan or forbearance of money or other things, at a greater rate than legal interest, should be void for the excess. The amount loaned, with legal interest, may be recovered on any such contract or assurance. 2 Rev. Stats. 63. This is the limit of the power of the courts to render judgments on such contracts, and they are bound to refuse to exceed such limit, when the facts are made to appear; and it is immaterial whether they are presented by the plaintiff or the defendant.

Thomas E. Moss, for appellant.

Henry Burnett, for appellee.

In law, each payment of usurious interest must be applied to the extinguishment of the principal debt, and as appellee, by his petition, furnished the court with the data from which to ascertain the amount legally due upon the contract, it was error to give judgment without applying the proper legal credits.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.  