#### Nathaniel Brigham *versus*William Marean.

The maker of a negotiable note which he alleges to be usurious, cannot object that an action upon it against him is brought in the name of an indorsee at the request and for the benefit of the payee.

Under *St,*1826, c. 27, one who reserves usurious interest on a contract, forfeits threefold the whole interest, usurious as well as lawful.

Where the plaintiff declared in one count upon a usurious note, and in another upon a note not usurious, and recovered judgment on both, but with a deduction of threefold interest from the usurious note, it was held, that each party was entitled to costs.

Assumpsit. One count was upon a promissory note made by the defendant for 67 dollars and 85 cents, payable to S. Peck or order on the 15th September, 1826, and indorsed by Peck. Another count was upon a note for 269 dollars 42 cents, dated September, 16th, 1826, made and indorsed in the same manner.

The defendant pleaded the general issue, which was joined. Also a plea in bar setting forth generally a usurious bargain for the loan of money, for which the notes were given. This was denied in the replication, and issue was joined thereon to the country.

At the trial, before *Parker*C. J., it was proved, that the property in the notes continued in Peck until the time of the trial, Brigham having no interest therein, but the suit being •brought in his name at the request and for the benefit of Peck.

It appeared that the note described in the first count was for a valuable consideration and not usurious, and the verdict was for the plaintiff on this count.

In regard to the note described in the second count, there was evidence that part of the consideration of it was two notes, each for 65 dollars, and that 5 dollars in each was taken over and above lawful interest. The verdict affirmed the plea of usury, and under the direction of the Court the jury returned a verdict fo the plaintiff for the balance due on the note in ques-*43non, after deducting the sum taken and reserved thereon beyond the lawful interest, and three-fold the lawful interest due on the note at the time of the trial.

*Oct, 2d.*

The questions saved arose upon *St.*1826, *c.*27, which provides, that whenever, in any action brought on any contract or assurance for the payment of money, it shall appear that a greater rate of interest than six per cent shall have been reserved or taken, “ the defendant shall recover his full costs, and the plaintiff shall forfeit three-fold the amount of the whole interest reserved or taken, and shall have judgment and execution for the balance only which may remain due upon said contract or assurance, after deducting three-fold the amount of said interest; and whenever a greater rate of interest shall have been paid than as aforesaid, a remedy shall accrue to recover back three-fold the amount of the whole interest paid.”

The defendant contended, that the jury ought to have deducted three-fold the amount taken and reserved usuriously, as well as three-fold the lawful interest due on the note ; — if he was right, the verdict was to be altered conformably.

The plaintiff contended, that as at the time when the two notes of 65 dollars were given, the statute of 1825, c. 143, was in force, by which the taking and reserving more than six per cent, was not unlawful, or did not render void the notes, the note described in the second count was not usurious, and therefore there should have been no deduction on account of unlawful interest. If he was right in his construction of the statutes, the verdict was to be altered so as to include the sum deducted on account of unlawful interest.

The further question was submitted to the Court, whicn party was to recover costs, in reference to the statute of 1826 above mentioned.

*Hoar*and *Lee,*for the plaintiff, cited, as to costs,

*Fowler*v. *Shearer,*7 Mass. R. 25 ; *Second Par. of Wells*v. Osborn, 2 Mass. R. 446.

*Bigeloio*and *Brooks,*for the defendant.

It is found that the usurious note belongs to Peck, and the action is brought in the name of Brigham for the purpose of depriving the defendant of the benefit of his own oath in proof of the usury; which ought not to be permitted. They insisted that three-fold the *44whole of the interest, usurious as well as lawful, should be deducted from the sum due on the note, and that as the defendant was entitled to costs under the statute, the plaintiff could _ not recover costs, although he prevailed on the first count.

*Oct. 4th.*

*Per Curiam.*

We see no objection to the action on account of its being brought in the name of Brigham. 1

The two notes for 65 dollars each were usurious, and being included in the note described in the second count, rendered that also usurious; and three-fold the whole interest, usurious as well as lawful, must be deducted from the sum due on the contract. 2

The plaintiff prevails on the first count and must recover his costs under the general statute provision respecting costs, and the defendant is also entitled to recover his costs, by virtue of *St.*1826, c. 27.3

1

 See *Sherwood,*v. *Roys,*12 Pick. 172 ; *Fairfield*v. *Adams,*16 Pick. 383.

2

 See *Parker*v. *Biglow,*14 Pick. 436; Revised Stat. *c.*35, § 2.

3

 See *Parker v. Biglow,*14 Pick. 442; Revised Stat. c. 35, § 2.