There was no usury in the note in suit. No illegal interest was secured in or by it, or agreed to be paid upon it, nor was it given as security for or in payment of any usurious loan made by the plaintiff to the defendant. The defendant had neither paid nor agreed to pay a higher rate of interest than six per cent. upon any contract made between him and the plaintiff, and no deduction could be made from the amount due upon the note on the ground of usury, for no usury existed.
The consideration of the note in suit was the indorsement of interest on the $1,200 note, and the giving up of the $300 note by the plaintiff; and the $300 note and the interest due on the $1,200 note were understood by the plaintiff, the defendant, and Brooks to *Page 123 be paid by the defendant's giving the plaintiff the note in suit. The consideration was sufficient and legal. The case finds there was no mistake in ascertaining the amount of the note to be given by the defendant. The payment was made by the defendant to the plaintiff in behalf of Brooks, by giving the note at Brooks's request, and Brooks gave the defendant a note and mortgage to secure him for giving the note in suit. Upon these facts the defendant was not entitled to any deduction for want or failure of consideration. Stanley v. Kempton, 30 Me. 118. The defence of usury is personal. Ladd v. Wiggin, 35 N.H. 421. It is a defence given by statute for the protection of the borrower against oppression, which he may waive. The borrower always has the option of paying his usurious debt. There is no statutory prohibition against his paying, and if he chooses to do so no one else has the right to object. In the present case the payment of usurious interest was upon the debt of Brooks. It was the right of Brooks to determine whether he would pay it, or interpose the defence of usury; and if, after voluntary payment, it could be recovered back (Willie v. Green,2 N.H. 333, Cross v. Bell, 34 N.H. 82), it was the right and privilege of Brooks alone to recover it. Little v. White, 8 N.H. 276. The fact that the plaintiff had received usurious interest from Brooks could not avail the defendant as a defence to his note.
The motion that Brooks have leave to appear as defendant in interest was properly denied. He was not a party to the note, nor was he a subsequent attaching creditor; and there being no question of fraud, collusion, or estoppel, if admitted to defend he would have stood upon no better ground than the defendant. Mathewson v. Powder Works, 44 N.H. 289, 292, 293.
Exceptions overruled.
DOE, C. J., did not sit: the others concurred.