OPINION ON MOTION POR REHEARING.
ELLISON, J.On further consideration we remain satisfied that plaintiff has no right to disturb the settlement and adjustment of the first loan.
*682But as tQ the new loan, the one in controversy, we feel that we were not justified in stating that it was shown that defendant was doing business under the statute of 1895. Defendant’s secretary, four years after the new loan was made, -testified as follows: ‘ ‘ Question: Tour association does business under what law, what statute? Answer: Statute of 1895.” This being unobjected to- and uncontroverted by plaintiff, might be considered sufficient to- show that at the time the witness was testifying the association was carrying on its business under that law. But it was not evidence of how it was conducting its business when the loan was made.
The new loan was not made by competitive bids, but for an arbitrary premium fixed by a by-law of the association. This by-law was adopted long prior to the law of 1895 and was therefore void when adopted, and there is nothing in the record to show that the association ever re-enacted a law of like nature after the statute of 1895 became effective. There does not seem to have been any attempt to reorganize the association as contemplated by the Laws of 1895 (section 1375, Revised Statutes 1899), either by formal action as specified in that section, or, as -just stated, by enactment of a by-law under authority of that and other sections of that law.
The result is that the new loan was not made under the privileges given by the Laws of 1895 and is not protected from the vice of usury. Plaintiff is therefore entitled to an accounting, in which she will be credited for all payments in excess of six per cent, the legal rate of interest. The motion to- set aside our judgment of affirmance is sustained and the judgment of the trial court is reversed and cause remanded, with direction to make the accounting between the parties as herein indicated and render the proper judgment thereon, with the costs against the defendant.
All concur.