, 1892-05-10
PROMISING NOTES.
Decision From the Superior Court
Of Clarke County.
There Were Eight Notes Executed i'm
Oregon---The Decision OF the
superior Jndge Reversed by the
Supreme Court.
CONTINUED from Monday,l

COntlnu6Q TfOm MOnQay,
The appellant also assigns as error th
overruling by the court of plaintiffs de
murrer to the answer. This ground Q
error must also be sustained. The defens
was based upon a statute Of Oregon. Law
of foreign countries must be pleaded an,
proven as any other fact, and in this re
spect the law of another state of the Uniol
is the law of foreign country, and tn
court will not take judicial notice of it
The answer cites Sec. 1857 Of the code 9
Oregon, which is as follows:
f'Sec. 1857. The rate of interest in thi
state shall be eight per centum per annun
and no more on all moneys after the sam
become due; on, judgments and decree
for the payment of money; on money re
ceived to, the credit of another and retained
beyond a reasonable time without the own
er's consent, expressed or implied; or OF
money due upon the settlement of ma
tured accounts from the day the balance il
ascertained; on money due or to becom,
due where there is a contract to pay inter
est and no rate specified. Buton contracts
interest at the rate of ten per centum PEI
annum may be charged, by express agree
ment of the parties, and no more''
1t will be observed that while this sec
ton provides in substance that interest or
contracts shall not exceed 10 per cent. pei
annum itsdoes not prescribe a penalty; and
all the effect that the law would have, if il
stopped there, and it will be presumed tc
for the purpose OF this demurrer, no Other
law being nleased wonld be to nrevenf the
collection IF fnterest in axcess If IN ne1
cent. This would only he a martial de.
fense to the action. and being pleaded as q
complete defense, and falling in that it will
fail as partial defense. The rule is laid
down thus in Pomeroy's Remedies and
defenses are fo he pleaded If is well Settled
that thew must he nIeaded as snch Tf q
defense is. set nm as an answer to the whole
cause of action. while r. is in fact only a
partial one, and even though it would be
admissible as such if properly stated on the
facts ALLEGED viii nof eonstitnfe ! is.des
fense.n and while the author criticises
the rule he asserts that n is we'll esta h.
lished and cites MANY cases SUSTAINING ii.
and none to. the contrary.
This disposes Of ali the Questions that
are before this court for decision, Appel-
lant however sets IN in His ranlv hriaf
section 3588-89, being the two seftions foi,,
lowing the section in The Oregon code cited
by defendants, which actions provide that.
tfIf it shall be ascertained in any srIt
BROUGHT on anv contract. that a rate ofi1,.
terest has been contracted for. greater than
is authorized by this chapter. either direct
lv or indirectly. in money. pronertv di-
reetly or Indirectly. either bv BORROWER or
debtor. or any person for him. the design
OF which is to obtain for money SO loaned
or for debts dine or to become dine a rate If
interest greater than than that specified bv
the provisions Of This chapter. the same
shall be deemed us11rions and sbaII work !
forfeiture IF t1e entire debt 81 contracted
to the school fund of The comfy where
such s1lit is brought. The court IN which
such suit is prosecuted shall render indg-
ment for the amount of the original sum
loaned ar fire daht c0n tractad without i7r
terest. against the defendant and II favor
of the state Of Oregon, for the
use Of the common school fund
of said county. whether such
suit be contested or not" and and asks the the
court to obviate the necessity Of another
~ t q gso Il III y III
law cannot Be pleaded as 4 defense to this
action. It would seem that inasmuch as
rf cng stdeoSe % o. Oleg9m Pr4ylaes o M tnat tne
of the original sn1o Ieaned for the baDefif
of the school fund if Won would In nreeIude eel l- The
idea that the legislature intended ia make
sncb CONTRACT void IL that +hara aa,IiJ
recovery at % a and ID as ''H The usu courts d9 Of
the state Of Wasningfon % wonid he n nower- ~
less to colv With tba IF +ha
law so far as the recovery Of tbe chen beneficisTv
named in the law is concerned, the only
effect Of aiIowing the defendants sli Il, ig this
action fo nIead tRe 0reeon gtatnta = wonId 11i.
be fo relieve them If nayin@ lcsN tha dabt
altogether which was evidentIv not
the intent of the law. But in
asmuch as the decision of this question is
not necessary for the determination of this