Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-26

VIM. b Thompson Collins Kellogg Kirby
This is an action Of debt brought in the Circuit
Court of Henry upon promissory note for Sl,3I46T
by the defendants against the plaintiffs in error
The declaration alleges that the note was made in
1 st. Louis Mo. The note is dated St Louis Nav
18th 1858 and due six months after date It con
tains this stipulation its face, if paid on ma
turity with interest at ten per cent. per anaumi
There are two pleas in defence
1, That the note sued upon was not made in S.
! Louis Missouri, but in Paris, Tennessee.
/ 2. Payment ysf-.
The plaintiffs took Issue upon the last plea, but
moved the Court strike out the first This potion
! was sustained, and verdict and judgment on the
! other, for the plaintiff below.
i The only question here is whether there was en-
ror in the action Of the Gourt in striking out the
| first plea.
If it was perfect defence to the action. # true.
it was good plea and issue should have been taken
/ upon it.
1t is not controversial in the argument that bv the
law of Missouri ten per cent interest by contract is
/ allowed, and may be received and taken. But in
Tennessee such contract is illegal and usuriOus
It is an indctable offence by law to take more
than six per cent contract containing on It's face
this. or any other illegal stipulation. cannot be en-
forced in court Of law or equity. No court will
give its active ard upon such contract lsler VS.
Brown. Hump. rs, applies this universal princi-
pie contracts spulating for usurious interest on
Reir face Then it cannot be controverfed that If
this note made in Tennessee and no other place
of payment designated where greater rate Of in
terest is allowed no suit could be maintained upon
it in our Courts. But 1t is aFerred in the gleclara-
ton that twas made in Missouri and must be gov
erned by the law Of that State, and consequently
they have not only right to upon it there but
to recover the ten per cent This is certainly trne
if the fact be So rs the law Of the place where the
contract is made, unless some ether place is fixed
for its performance, must govern on this question.
Story on Contracts. l. S. 30f, s., II. 7S Parsons
on Con. 96.
This being the law, why is it not material in view
of the question, not much of usy but to test the
legality of the contract to ascertain where it
made?
If in Missouri it could be enforced here as well
as there but II in Tennessee, 1t is illegal on its
face, and the plaintiffs would be repealed from our
courts.
Il is averred to have been executed in Missouri.
May not that averment be met BY plea and an issue
made up to try the fact 1t is certainly an impor-
tant fact If the plea be found true the acton is
barred and defeated. It is clearly then good and
effe ,tual defence. Upon what principle. then can
it be rejected and its benefit derived to me defend
ants2 1t is most likely that the plea is not true and
was only put in for delay. But this we cannot know
If that be the it will be easy for the plaintiffs
to take issue upon it. and appeal to the proof.
The conclusion is. that the court erred in striking
out the plea in question. and for this the Judgment
must be reversed and the cause renanded for fur
Their proceedings. CAEUurERs,
Test: ". d. WEIGH. Clerk.