The democrat. [volume] (Weston, W. Va.) 1868-1874, 1872-12-16
That Law Point Again.


10 TIE Editor Of 7hc democrat.
Your note in answer to my inquiry,
published in your issue of the % inst. ,
is not satisfactory to an inquiring mind
After giving Section 8 Of Chapter
90 ofthe Code, you say: "The true
meaning Of this section i thata party
may cOntracttO pay a greater rate Of
interest than 9 per cent, and unless
the defendant in suit pleads and re-.
fuses by his plea to pay u greater rate
of interest than o per cent, il is the
duty ofthe Court to give judgment for
the interest agreed 10 be paid" Now
Mr.. Editor, it is an easy matter to say
this; but to assign a reason for your
construction Of the section referred to
might be some trouble.
is it SO that the iruo meaning Of
tho law is that Court ought to give
judgment to enforce contract l,et the
law expressly declares voidy 81. it a
fact that the true mo-, ofs,sion 5
is that a Coat sall give judgment
that the plain ! shall recover from the
defendant what section 4 of tho same
chapter declares he shall not take :
Section 4 says no person, upon aug
contract, shall take for the loan or for.
bGarance Of money or other thing
above 9 per cent. Finally, is it the
true meaning Of tho law that Court
BY its judgments, makes it legal for a
party to recover more than 9 per cent,
when the law declares that legal inter.
est shall continue to be at the rate Of
@ per cent?
| am aware that a party may con.
tract to pay interest at a greater rate
than @ per cent, aud Il he chooses to
pay it. (Which l think he ought in
honor to dog tits all right; but tho only
question is, can the plaintiff recover il
BY legal process, although tho defend.
ant does not plead and object?
Sections 0 and I Of Chapter 90 pre-
vides how defendant may plead in
general terms that tho contract or as.
surance on which tho suit is brought
was for the payment Of interest at a
greater rate than is allowed by law
But this certainly only refers to cases
where tho fact Of such greater rate
does not appear in the note or writing
upon which the action is brought.
And for the very obvious reason that
the Court is not presumed to know un.
I'll the facts arc brought to light by The
plcadings in the case; aud when
brought to light the Court ought to
give judgment the same way Us il the
fact Of such greater ratio Of interest had
appeared In the papers pertaining to
tho case.
Now, Mr.. Editor. put on yOur plas.
ses and read sections 4, 8, O and I Of
Chapter 96 again and see IL my inter.
probation is not the plain, common
sense meaning of tho law. While /
am aware that the majority Of our legal
men differ with mo in this matter, ye.
| AIN glad to know that do not stand
alone In my views OF this law one Of
the best attorneys IN your town says |
AIN clearly right, aud further says that
he is surpri,ed that any person would
attach any other meaning to tho law
referred to. And recently q case 10
point came before the Circuit Cont Of
Ohio county, and the Court, in that
case, only give judgment for interest
at the rate Of 0 per cent, although The
defendant did not plead and refuse to
pay the excess above O por cent.
NJ. McWuoRrgR.
Morn ny TIE Enron. Doctors and