The appellee, on the 17th of June, 1861, brought this action against the appellants, who were the defendants, upon a promissory note for the payment of one thousand five hundred dollars. The note bears date May 11th, 1860, and was payable at twelve months, with interest from date. Defendants answered by three paragraphs, each setting up usury. Beply. A general denial.
*122The Court tried the issues and found, for the plaintiff, one thousand one hundred and ninety-seven dollars and fifty cents, the amount of the note and interest, after deducting the credit thereon. Motion for a new trial denied, and judgment, etc.
Upon the trial, the note, upon which there was the following indorsement: “ Feb. 11, 1861. Beceived, on the within note, four hundred dollars,” was given in evidence, and, thereupon, the plaintiff was called as a witness, and testified, in effect, as follows: “ In May, 1857,1 loaned the defendants one thousand five hundred dollars, for which they gave me their note, payable three years after date, at six per cent, per annum interest thereon. They also paid down, as interest, sixty dollars, and gave me two notes for sixty dollars each, payable in one and two years. The money thus paid, and notes thus given, were for four per cent, on the amount loaned, in addition to the six per cent, specified in the original note. The notes given for interest were paid as they respectively matured; and the six per cent., which amounted to ninety dollars a year, was also paid, making, in all, four hundred and fifty dollars paid as interest on said loan. Witness further testified, that, after the payment of said interest, viz., on the said 11th of May, 1860, the principal sum loaned still remaining unpaid, the defendants, for that sum, executed to him the note in suit, in lieu of the original note, upon which interest, at ten per cent., had been paid, as aforesaid. And, in reference to the last note, there was no undertaking or agreement that plaintiff was to have more than six per cent, for the money.”
For the reasons given in Wood v. Kennedy, at the present term, the judgment in this case must be held erroneous, the facts and questions of law, in both cases, being similar. In accordance with the rulings in the cited case, the defendant, in the present case, should have been allowed a deduction *123from the note in suit, of the four per cent, paid on the original, over and above the then legal rate of-interest; which four per cent., so paid, with interest, amounted, .at the time of the rendition of the judgment in the lower Court, to two hundred and fifteen dollars. And if the appellee will remit that sum, then the judgment will stand affirmed. If not, it will be reversed.
Wilson Morrow and Robert M. Goodwin, for the appellants. George Holland and Charles G. Binkley, for the appellee.The appellant must recover cost in this Court.