dissenting. I am well satisfied, after a careful examination of the record and the authorities cited, that this decree should be reversed, and the bill dismissed. Had a demurrer been interposed in the court below, it ought to have been sustained. Proceeding to a final hearing on bill, answer and testimony, does not preclude a party, on appeal or error, from making the same objections which could be urged on a general demurrer to the bill, for that is always to the merits and in bar of the relief sought.
The bill was filed in the name of certain creditors of one Samuel Thompson, and using his name without any apparent authority so to do, and without his knowledge, as was proved.
Thompson has never sought to avoid the contract with appellant on any ground, and as late as April 29, 1860, he distinctly stated that appellant’s demand, on the 8th of the preceding March, was eight hundred dollars. Ho payments have been made since that time, but it appears, though not conclusively, that Thompson had paid a considerable amount of usurious interest to appellant on this debt of eight hundred dollars, which was due by note; and his co-complainants, having a deed of trust on the same property conveyed to Johnson to secure the payment of this eight hundred dollars, and which he is proceeding to sell under his trust deed, claim such usurious interest should be rebated from the amount of the appellant’s claim, and thus relieve the property from so much of the incumbrance.
¥e have decided, after solemn argument and most mature consideration, that a party who has voluntarily paid usurious interest cannot recover it back in an action at law. But a payment is an end of the matter, so far as the statute is concerned, and this decision has been reiterated, at this term, in the case of Tompkins v. Hill.
If, then, a party cannot at law recover back money paid on a usurious contract, I do not see how it can be done in any other manner. Thompson paid the interest voluntarily, and has never, and does not now, complain of it. How, then, can his co-complainants have it deducted from the amount of appellant’s claim ? If they can, it would be virtually overruling the decisions I have cited. I do not think the cases cited by appellees apply. They all arose under statutes declaring a forfeiture of the whole debt for usury. That is not our statute, and if we should affirm the decree in this case, we would wipe out the decisions we have so lately made, as having a contrary bearing. I think the decree should be reversed.