
    James H. Dunn v. Joseph A. Moore.
    In an action by the maker of a negotiable promissory no1e against the payee, under the statute of January 12, 1844 (S. & C. 744), to recover the amount of usurious interest thereon paid to an indorsee, it must be averred in the plaintiff’s petition that the holder was a “ bona fide indorsee,” and that the note was “purchased” for a valuable consideration, and it is not sufficient merely to aver that the note was indorsed before due and without notice of the usury.
    Motion, for leave to file a petition in error to the District Court of Brown county.
    This was an action by Joseph A. Moore, the maker of a negotiable promissory note, against James H. Dunn, the payee and indorser, to recover usurious interest paid thereon to an indorsee. The petition alleged that the note was transferred by indorsement before due ; that the indorsee had no1 knowledge or notice of the usury at the date of the indorsement ; and that at the maturity of the note, being unable to make the defense of usury, the plaintiff was obliged to pay, and did pay the full amount of the note, in order to prevent a suit by the indorsee; but the petition ■contained no allegation that the indorsee was a bona fide purchaser of the note. A demurrer to this petition, on the ground that it did not contain facts sufficient to sustain an action, was sustained by the court, and judgment was rendered for the defendant. On error, this judgment was reversed in the District Court, and leave is now asked to file a petition in error here to reverse the judgment of reversal.
    
      David Thomas and James G. Dunn, for the motion.
    
      Louden &¡ Young, contra.
   Welch, C. J.

The right to recover of the payee for usurious interest paid to an indorsee is given by the statute (S. & C. 794), and in order to such recovery the plaintiff must bring his case substantially within its provisions. The statute allows the recovery only in cases where the payment has been made to a “ bóna fide indorsee of negotiable paper, purchased before due.” There is no averment that such was the character of the indorsee here. For aught that appears, the note may have been a gift by the payee to the indorsee, or it may have been indorsed merely for collection, and for the very purpose of defeating the defense of usury. We think that the bona fides of the transfer, and the fact that there was an actual purchase of the note for value, are not to be presumed in such cases from the mere fact of indorsement before due and without notice, but must, in order to bring the case within the statute, be averred and proven by the party seeking to recover.

Judgment of the District Court reversed, and that of the Common Pleas affirmed.

White, Rex, Gilmore, and McIlvaine, JJ., concurred.  