The opinion of the Court was delivered by
Sergeant, J. —Our act of assembly in relation to usury does not make the security by which the usurious interest is contracted for, void. It merely declares, that no more than lawful interest shall be taken for the forbearance of money lent, and'imposes a penalty on the person who takes more than such lawful interest'. The effect of these provisions is, that a party to an usurious contract, can recover upon it only the. money actually lent and lawful interest. But if the payee of a negotiable note given for a sum lent and more than lawful interest, endorses it, and it passes into the hands of a bona fide holder, unconnected with the usurious contract, such holder cannot be affected by the unlawfulness which existed between the original parties. He certainly would not be liable to the' penalty imposed by the act, by receiving the amount of the note when due. Now that, so far as appears in this affidavit, may have been the case here. It states that the transaction between the parties really interested was usurious, but it does not state that the plaintiff was one of these parties : and he may certainly not have been, because a note endorsed in blank passes by delivery, and he may have re-' ceived it from one who obtained it from the original parties. The defendant is bound to specify the ground of his defence in his affidavit. The cases cited from the English books, do not apply here. There a note given to secure an usurious loan, was declared, absolutely void by the statute of Anne, and was so considered even in the hands of an innocent endorser; but this has been lately altered *226by the statute of 58 Geo. 3. Our laws never went so far, and were considered as attaining the desired object by subjecting the party . receiving to a penalty, and restricting his right of recovery.
Judgment affirmed.