The question in this case is presented by the demurrer to the special pleas. The first of these we think is good. It shows that as to one hundred and twenty-five dollars of the note sued on, that amount was for usurious interest for the forbearance of the balance of the amount of the note, and that the payee of the note indorsed it to the plaintiff without any consideration paid therefor by himself or any one else. The objection taken to the plea is, that it does not show that the note was not assigned before its maturity, or that the plaintiff' is not a bona fide holder. The averment that it was assigned without any consideration shows that the plaintiff is a volunteer, and he took the note with all its infirmities, the same as if he had had actual notice of them, or as if it had been assigned after due.
The second special plea avers that all but one hundred and sixty dollars of the note was for usurious interest, and gives a history of the transaction. First, a loan of sixty dollars on the 20th of April, 1858, for which he gave to England his pote at one month at 10 per cent, interest; and that on the 1st of October, 1858, the defendant borrowed of England one hundred dollars for two months, for the use of which he agreed to give him five per cent, per month, and accordingly gave him his note at two months for one hundred and ten dollars. That on the 27th of October, 1860, the defendant and England had an accounting and made a new agreement, whereby it was agreed that for the use of the two sums of money from the time they were respectively borrowed, till over one year from the said 27th day of October, 1860, the defendant should allow and pay England the sum of one hundred and twenty-five dollars, and accordingly the defendant gave England the note sued on, which includes the one hundred and twenty-five dollars usurious interest, dated the 27th of October, 1860, and is payable twelve months from date; and avers, that the note was assigned without any consideration and after it became due. According to the defendant’s averments in this plea, on the 27th of October, 1860, there was legally due England the full amount of the sixty dollar note, which was not tainted with usury, amounting to seventy-five dollars and eleven cents, and the one hundred dollars loaned on the 1st of October, 1860, throwing out the interest which was forfeited by reason of the usury, making in all the sum of one hundred and seventy-five dollars and eleven cents due England at the time this note for two hundred and eighty-five dollars was given, which would leave one hundred and nine dollars and eighty-nine cents included in this note for the forbearance of the one hundred and seventy-five dollars and eleven cents actually due. As the note was payable in one year, this was undoubtedly usurious interest under our statute. The defendant has attempted to make the interest which had accrued on the sixty dollar note, as well as the other, usurious, by showing that the agreement which was made on the 27th of October, when this note was given, was that the one hundred and twenty-five dollars should be put in this note for the interest on the two sums loaned, from the time they were received by the defendant till over one year from the said 27th of October, 1860. Now, this agreement, as stated, shows no usury whatever, for it does not define the period during which the money loaned should be further forborne, for the averment is, that it was to be forborne over one year, and for aught that appears it was to be for so long a period as to make the interest at even six per cent, amount to the one hundred and twenty-five dollars, so that that agreement, taken by itself, shows no usury. But it seems that this verbal agreement was changed or modified when the note was actually given, for that was made payable in one year from that date ; so that the party must abandon that parol agreement for the purpose of showing the usury, and rely upon the actual facts as he shows them to have existed. The facts are as before stated, that there was due England one hundred and seventy-five dollars and eleven cents at the time he took the note for two hundred and eighty-five dollars, bearing one hundred and nine dollars and eighty-nine cents as interest. To this extent the note was undoubtedly usurious, as shown by this plea. Now, the plea proposes to answer one hundred and twenty-five dollars of the first count, but it actually answers but one hundred and nine dollars and eighty-nine cents of it. Is the plea bad for that reason ? We think it is. A plea must answer well all it professes to answer. The most common and familiar case is, where a plea professes to answer the whole of a declaration or count, and actually answers but a part. In such a case no one would doubt that the plea would be bad. The principle is the same here. In the supposed case the plea claims to answer more than the facts stated in it can answer, and so it is in the principal case. We think the demurrer was properly sustained to the second special plea.
The third special plea may be next considered. It shows that at the time the action was brought, the plaintiff knew nothing of it, and had no interest in the note, and did not authorize the use of his name in bringing the action; and that England had assigned the note to him without any consideration. Now,' in form at least, this plea admits the legal title to have been in the plaintiff at the time the action was brought, and it does not show that he had not subsequently ■sanctioned and approved of the use of his name. If the plea had gone further, and showed that the plaintiff had never ¡sanctioned the bringing of the action in his name, then it would have come within the rule formerly laid down by this •court. We are not inclined to extend that rule, and must hold the plea bad.
The fourth and last special plea is substantially the same as •the third, for it substantially admits that the note was indorsed before the action was commenced, and hen CP the averment that the plaintiff had no legal interest in the note must be understood as inference, for the bare fact of the indorsement of the note to him would vest in him the nominal legal title. It comes under the same principle as the other plea, and must abide the same fate.
As the demurrer was improperly sustained to the first special plea, the judgment must be reversed, and the cause remanded.
Judgment reversed.