The question raised in this action, relative to costs, was decided in Wing v. Dunn & at. 24 Maine R. 128. By § 7, c. 69, Rev. Stat., the plaintiff was bound to pay costs to the defendant, provided the damages were reduced by the oath of the latter. The act of July 22, 1846, c. 192, provides for the recovery of costs by the defendant, upon a reduction of damages by proof of the usurious interest. By a subsequent act passed August 7, of the same year, it was provided, that the former act should not embrace pending suits.
This suit was commenced Sept. 9, 1844, and is therefore to be determined by the provision of § 7, c. 69, although that section is repealed by the act of July 22. The damages in this action are not reduced by the oath of the defendants, but by the voluntary act of the plaintiff, in making an indorsement on his note. The plaintiff was probably induced to make the indorsement from the apprehension of a reduction by the defendant’s oath. But the statute does not extend to such a case, so as to give costs, although it appears that usurious interest was paid. Costs cannot be allowed unless they are given by statute.