The opinion of the Court was by
Whitman C. J.The plaintiff is an indorsee of the note declared upon ; and the defendant is the maker of the same ; and sets up the defence of usury; and it is admitted that more than at the rate of six per cent, was reserved in the note, when taken by the payee. The plaintiff, however, received it without actual knowledge, that such was the case, but after it had become payable, and paid a valuable consideration for it. The Rev. Stat. c. 69, § 2, provides, that, in an action against the debtor, on any contracts, &c. whereupon or whereby these shall be reserved or taken above the rate of six per cent, he may, under the general issue, prove it, and avoid the payment of the excess so reserved or taken. At common law, whenever a note is purchased after the day of payment shall have elapsed, the maker is entitled to any defence, which he could have made if the security had remained in the hands of the promisee. The excess, therefore, over legal interest secured in this note must be deducted.
*130By the arguments of counsel in this case, it seems to have been taken' for granted, that § 6, of the statute, is applicable to this case. This section is, that, “ The preceding section shall not extend to bills of exchange or promissory notes, payable to order or bearer, in the hands of an indorsee or holder, who shall have received the same in good faith, and for a valuable consideration; and who had not, at the time of discounting such bill or note, or paying such consideration, actual notice, that the same had been given for an usurious consideration, or upon a usurious contract.” The preceding section is, “ That whoever, on any such loan, shall, in any manner, pay a greater sum or value than is by law allowed to the creditor, may, or his personal representatives may, recover of the creditor, or his representatives, by action at law, the excess so received by such creditor, whether in money or other property.” The sixth section, therefore, has no reference to <§> 2, upon which this defence is founded; and applies only to § 5, that being the section next preceding it. The Revised Statute, c. 1, § 3, Rule 14, declares, in accordance with what would otherwise have been obvious, that “ the words, “ preceding ” and “ following,” when used by way of reference to any section in these Revised Statutes, shall be construed to mean the section next preceding or next following that in which reference is made, unless some other section is expressly designated.” In the § 6, no other section is designated or alluded to except <§, 5.
In the statement of facts the plaintiff has been induced to agree, if the usurious part of the interest should be deducted, that his recovery shall be without costs for him; and that costs shall be allowed for the defendant. This agreement was, doubtless, entered into upon the supposition, that 7, of the act, applied to his case; but by the wording of that section it would seem to be applicable only to cases, in which the usury had been proved, as provided in § 3, by the oath of the party. The seventh section is, that, “ In a suit brought, where more than legal interest shall be reserved or taken, the party, so reserving and taking, shall recover no costs, but shall pay costs to thé defendant; provided, the damages shall be reduced by *131the oath of any one of the defendants, where there are more than one, by reason of such usurious interest.” In this case the damages are not reduced by the oath of any one of the defendants. The plaintiff, therefore, but for his agreement, would be entitled to his costs, as in other cases, where his damages had been merely reduced below what he had claimed. If this agreement on the part of the plaintiff was entered into through mistake or misapprehension, it may be reasonable, on his motion, to discharge him from it.