The opinion of the Court was drawn up by
Appleton, J.By R. S., 1841, c. 69, § 7, costs were denied the plaintiff and allowed the defendant, on usurious contracts, “ provided the damages shall be reduced by the oath of any of the defendants, when there are more than one, by reason of such usurious contract.”
By the Act of July 22, 1846, c. 192, costs were denied the plaintiff and allowed the defendant, in all usurious contracts, “provided the damages shall be reduced by proof of such usurious interest.” By this, it will be perceived, that the proof of such usurious interest is not limited to that by the oath of the party.
It has been judicially determined under each of these statutes, that where the plaintiff voluntarily indorses upon his contract the usurious interest taken and reserved, that the defendant is not, and that the plaintiff is, entitled to costs. Cummings v. Blake, 29 Maine, 105; Hankerson v. Emery, 37 Maine, 16; Lumberman’s Bank v. Bearce, 41 Maine, 505.
It is provided by R. S., 1857, c. 45, § 2, that if, in any usurious contract, “ the damages are reduced by proof of such excessive interest- by the oath of the party, or otherwise, the plaintiff shall recover no costs, but shall pay costs to the defendant.” The reduction of damages must be by proof. It was, obviously, the intention of the Legislature -to condense the provisions of the Act of 1841 and of 1846, on this subject, into one section, but not to change or alter the law. Whenever the plaintiff, therefore, voluntarily indorses upon Ms note the amount of usurious interest before trial, the damages are not reduced by proof, either by the oath of the party or otherwise, and this section does not apply. Exceptions overruled.
Tenney, C. J., Cutting, Goodenow, Davis and Kent, JJ., concurred.