— The Act of July 22, 1846, ch. 192, provides “ that in any 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 the defendant, provided the damage shall be reduced by proof of such usurious interest, and the provision for costs contained in the seventh section of the sixty-ninth chapter of the Revised Statutes is hereby repealed.”
It is contended on the part of the plaintiff, that the damages having been reduced by the oath of the defendant, the plaintiff should recover his costs. But by the Revised Statutes, ch. 69,' •§> 3, the defendant is permitted to be a witness in his own case, so far as to testify to the unlawful interest. When by his testimony, the fact of usury is established, then the proof of it exists, as much so as if it were shown by the testimony of a disinterested witness in the ordinary course of a judicial trial.
The order of the Judge of the District Court, that the plaintiff should not recover costs, but should pay them to the defendant, was correct, and the exceptions must be overruled.
Exceptions overruled.