delivered the opinion of the court.
The plaintiff sues the defendant to recover the balance due on account, and he has prayed that a plantation and slaves which were mortgaged to secure the payment of the balance due to him, may be seized and sold to satisfy the judgement.
The answer of the defendant charges, that a large portion of the balance which appears against him on the account current of the plaintiff, proceeds from usurious and compound interest exacted by him in various transactions which the parties have had together.
The defendant,' on the trial, introduced the accounts current which the plaintiff had furnished to him from the year 1822 up to 1828. We have not found it necessary to examine whether they establish the charge of usury, because it appears that in the year last mentioned, the principal and interest of all sums due to the plaintiff previous thereto, were paid by the defendant, with the exception of thirty-one dollars and sixty-five cents, and that sum was novated by carrying it to the debit of one Lapeice.
The counsel for defendant has contended, the production of this account current on his part, is not evidence of payment; hut we are unable to view it in any other light. The plaintiff considered his demand as settled, and the document would be evidence against him that it was settled. If the *545defendant did not regard it in the same waj, it was his duty to have made his objections to the plaintiff in a reasonable time; and the act of receiving the account current, and retaining it for so long a period, without observation or opposition, is an assent to the application which the plaintiff made of the funds of the defendant. If indeed the account current showed a balance then due to the plaintiff equal to the amount of interest debited, the assent of the defendant would perhaps only exist to the charge of usurious interest, and this assent would , , . . be no stronger than a promise to pay illegal interest, and would still be open to contestation. But here the account showed that the money in the plaintiff’s hands belonging to * o o the defendant, had been applied to the discharge of the interest, and .the acquiescence of the latter is not limited to the propriety of the plaintiff’s debiting him with usurious interest, it extends also to the payment of it. See the case of Flower et al. vs. Jones et al. 6 Mar. N. S. 143-4.
And although there may be items of usurichargcdinthe shown the deney was ™p-payment H^s in t!le nature payP1 usurbus whenpaidiTam not be recovered back. The laws of Spain affixing a penalty to interest ?°a,ns fo,r 't higher rate of than law'of the loss eít^stipuiated beenIt was decided by this court in the case of Perrillat vs. Peuch, that money paid on an usurious contract, could not be recov_ _ _ „ ered back. 2 Lou. Rep. 429.
By a contract entered into between the parties in April, 1829, it was agreed the plaintiff should make advances of goods and money to the defendant, for which the latter was to pay interest at ten per centum, and to secure the payment as well for these advances as for any endorsements the plaintiff might make for him, he mortgaged his plantation and slaves. In the account current furnished by the plaintiff of the transactions between the parties since that time, the defendant is debited with two and one-half per centum commisT ,, . In this case the sion on acceptances which the plaintiff came under for him It is contended this charge is usurious, inquiry is unnecessary, a penalty for lending money at a rate higher than that per-The laws of Spain which affixed as r mitted by law, the loss of the whole of the interest stipulated for, have been repealed, and the decisions of this court under these laws can have no application to a case arising under the provisions of our code. If, therefore, we came to a con*546elusion the charge in the account current of two and one-per centum for acceptance was usurious, we could only reject that item. The agreement to pay ten per centum intcrest would be unaffected by it. But on another consideration we think the charges for acceptance should be rejected. The claim must depend for its support on some one of the following grounds: positive law, custom, contract between the parties, or the value of the service, from which the law will imply a promise. Now no law has heen shown which gives two and a half per centum to the acceptor of a bill of exchange; no custom having the force of law, or indeed any custom js established by the evidence. The contract between the parties, instead of supporting the demand, rather seems opposed to it; for the agreement was to pay ten per centum interest f°r all advances, and the acceptance, perhaps, ought to be considered as one of the means through which these advances were paid. Finally, no proof has been adduced, that the value of an acceptance to the person for whose accommodation it is made, is two and a half per centum; the r charge for these commissions, therefore, appears to us wholly untenable.
The commisone-halfV° per centum in a count for ac-thetaninterest them6are um supported by custonThaving law arid'must be rejected when the account is suedThe commissions for acceptance, and the interest charged on them, must, therefore, be deducted, and the plaintiff have judgement for the balance.
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and i'eversed; and -it is further decreed and adjudged, that the plaintiff do recover of the defendant, the sum of eight thousand seven hundred and eighty-six dollars and eleven cents, with interest at ten per centum per annum, on the sum of seven thousand four hundred and thirty-seven dollars and thirty-seven cents, from the first day of October, 1831, until paid, with costs of the court below; those of appeal to be borne by the appellee; and it is further decreed, that an order of seizure and sale issue against the mortgaged property mentioned in the petition, and act of mortgage annexed thereto, and that it be sold to satisfy the judgement.