The opinion of the Court was drawn up by
Tenney, C. J.The note in suit, for the sum of one hundred dollars, bearing interest from date, was given for the sole consideration of the loan of„the sum of ninety-four dollars, for the term of eight months. And the case would fall within the prohibition of 11. S., c. 45, provided no indorsement had been made. And the question is, whether the indorsement of the sum of six dollars, without date, upon the note, made by the plaintiff in July, 1860, neither of the defendants having made any payment, or having any information of the indorsement for several weeks afterwards, will take the case out of the provisions of the statute. .
*548By the statute of 1846, c. 192, it was provided 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. A construction was given to this statute in the case of Hankerson v. Emery & als., 37 Maine, 16, and it was held therein, that the proof of usurious interest, was that which should be derived from the evidence adduced at the trial, and not that afforded by an indorsement before the institution of the suit. The indorsement, before the institution of the suit, was a fact in that case, and we see no reason why it should have any effect upon the decision; more than it would have if made at any time between the delivery of the note and the trial of an action thereon: and it was clearly not designed to be any ground for the result.
The R. S. of 1857, c. 45, § 2, provide that, in any such action, if the damages are reduced by proof of such excessive interest, by the oath of the party or otherwise, the plaintiff shall recover no costs, &c. This statute, so far as it relates to costs in actions referred to therein, is substantially the same as that of 1846, upon the same subject. In the former, the evidence of usury was not restricted at all; in the latter, it is the same, but one kind of evidence which is admissible is specified, and other kinds embraced in general terms.
If there had been no evidence or agreement touching the time when the indorsement was made upon the note in suit, the presumption would bo that it was done at the time the note was given. The date of a writ, which, was ma,de on the Sabbath, according to the date, has been upheld, on proof that it was not made on that day. Trafton v. Rogers, 13 Maine, 315. So the date of a writ is not conclusive evidence of the time when it was sued out, so as to affect a plea of the statute of limitations. Johnson v. Farwell, 7 Maine, 370. The presumption of law, that a negotiable promissory note was indorsed and tranferred by the *549payee on the clay of its date, there being no date to the indorsement, may be rebutted by proof that it remained the property of the payee till a later period. Hutchinson v. Moody, 18 Maine, 393. The same principles will apply, certainly with equal force, to a payment indorsed on a note, with an erroneous date, or without any date; and the time of payment may be proved.
The indorsement in this case must be treated as indicative of a relinquishment of the sum indorsed at the time it was placed upon the note, and in this respect, it does not differ from a payment. The presumption that it was indorsed at the time the note was executed, can be rebutted in one case as in the other, by proof of the time when it was made. In this case it is admitted that it was'made long afterwards.
If the indorsement had been of a sum so large that the amount of the note would have been no more at the time it was made than the sum of ninety-four dollars, and the interest thereon to that time, the case would fall within the principle of the case of Hankerson v. Emery & als., before cited. But the interest cast upon this note, according to the well settled rule of this Court, will exceed the amount of the sum of ninety-four dollars and interest thereon. Judgment will be for the plaintiff for the amount of the sum of ninety-four dollars, and interest thereon from the date of the note to the time of judgment, without costs, but he shall pay costs to the defendants.
Kick, Goodenow, Mat, Davis and Kent, JJ., concurred.