May Term, 1855. SHOOK V. There is some difference in the form of the fourth and fifth pleas. The latter states the usury to consist in the taking of 7 per cent. interest, which we have shown was not usurious. The fourth plea does not state the rate of THE STATE. interest taken, but avers that interest had been paid by one of the obligors, upon the several bonds, to the amount of 500 dollars. We shall not stop now to inquire whether an agent of the state, whose duties are prescribed by law, can, after a contract has been made, which was lawful in its inception, impair its obligation by taking an excess of interest. He has certainly no warrant from his principal, the state, for the illegal act, nor is there any presumption that the state ratifies the unauthorized act of her agent; and it would seem to follow that he who pays an excess of interest, under such circumstances, must suffer for his own folly. But we do not think it necessary, at present, to decide that question. There is no averment, in the fourth plea, that the excess was taken with a corrupt intent. In the case of Reed v. Coale, 4 Ind. R. 283, it was held that an instrument apparently usurious, could not be shown to have been made so without a corrupt intent. In the case of Sutton v. Fletcher, 6 Blackf. 362, it was held that a contract was not usurious, if the excess was contracted for by mistake, and without a corrupt intention; and evidence of the mistake was allowed. The conflict between these two cases is apparent rather than real. In Reed v. Coale, the usury appeared on the face of the instrument; in the other case it did not. In the first case, to have admitted evidence that the note was made to draw 10 per cent. through ignorance of a recent change of the law in relation to interest, would have been a departure from one of the soundest and most imperative rules of the law. But in the other case, a note not usurious on its face, was made for too large a sum, by an erroneous computation made by a third person who was called upon to draw it. This fact was proved, and correctly, in answer to a defence of usury set up to an action on the note. In the case of Cohee v. Cooper, 8 Blackf. 115, it was held that a plea of usury must aver that the agreement to take it was corruptly May Term, 1855. SHOOK made. In that case the excess did not appear upon the face of the contract, and, in such a case, at least, however it may be in regard to those where it does appear, the THE STATE. averment of a corrupt purpose is indispensable. The sixth plea, which is pleaded to the first, second and third counts only, states that Peter and Hezekiah Shook were sureties for David P. Shook in said bonds; that after they became due, to-wit, on the 23d day of January, 1848, the plaintiff, without the defendant's knowledge, and against his will, agreed with David P. Shook, the principal, that in consideration that he would pay interest thereon at the rate of 7 per cent. per annum from that day to the 23d day of January, 1849, the plaintiff would give day of payment until the latter date; that (the previous interest having been paid) the said David P. Shook thereupon paid 21 dollars, being 7 per cent. interest in advance, and that thereupon the plaintiff gave day for one year, and until the bringing of this suit, during which time the said David P. Shook became insolvent. Supposing it competent to allege that the state entered into an agreement of the kind set out in the plea, without the intervention of some agent authorized to make such a contract, which is not pretended, still the plea is defective because it shows no consideration for the supposed agree. ment for giving day. As we have already shown, the bonds in question drew interest at the rate of 7 per cent. per annum, payable in advance, and, as we understand them, the interest was to be paid annually. It was evidently the intention of the parties that time might be given on these bonds after maturity. The first was due one year after date, the interest payable in advance, and still it contains this stipulation, "that in case of failure to pay any instalment of interest, the said principal shall become due and collectable, together with all arrears of interest; and on failure to pay the principal or interest when due, five per cent. damages on the whole sum shall be collected, and costs." Now, as this bond was due one year after date, and, as the interest for that year had been already paid, there could be no sense in a stipulation for 1855. SHOOK v. the payment of future instalments of interest in advance, May Term, unless further time was to be given. The term "payable in advance," of itself, necessarily implied that at least one year's delay should be given after the payment of an instal- THE STATE. ment of interest. And we think this intention is evident from the language of all the several bonds, as well as of that which should first become due. As there was no consideration for the alleged agreement, it was not obligatory upon any party to it, and consequently it was not available for any purpose. The demurrer to this plea was properly sustained. The second plea was, that the bonds sued on were executed without any consideration. The third was a plea of payment. Upon the trial of the issues joined upon these pleas, it appeared in evidence that previous to the date of the said bonds there was a deficiency in the surplus reve nue funds of Ripley county, and that the board of com missioners appointed an agent to adjust the matter with David P. Shook, who had been an agent for the loaning of the fund. That Shook denied that the funds were in his hands, but alleged that they were in the hands of one Watts, who had preceded him in the agency. The agent appointed by the board of commissioners, in settlement of the defalcation, took from David P. Shook the bonds in question, with the other obligors as his sureties, for the amount of the deficiency, and reported his doings to the board of commissioners, who, by an order entered of record, approved the settlement. It further appeared that the interest had been paid annually, at 7 per cent., on the first and last of said bonds, to January 23, 1849, and on the second and third to January 23, 1850, which payments were properly indorsed by the auditor. The Circuit Court instructed the jury, at the instance of the plaintiff, among other things, that if they believed from the evidence that the bonds were given in satisfaction of a claim which the state had against David P. Shook, for a balance alleged to have been in his hands, at the time the bonds were made, the plea that the bonds were made without consideration is not sustained. May Term, 1855. SHOOK V. The plaintiff in error complains of this instruction, by which he understands the jury were told that if the plaintiff pretended to have a claim against David P. Shook, THE STATE. and if the bonds were given for the adjustment of it, however false or groundless it may have been, the plaintiff was entitled to their verdict. We think the import of the charge is misconceived. The instruction was not upon an abstract question of law, but had reference to the proof. Taken in connection with the evidence, nothing can be clearer than that the bonds were in fact given for a consideration. It is an unreasonable presumption, and one not to be indulged in, that a person charged with a defalcation to the amount of near 700 dollars, would acknowledge it by giving bonds and security for its payment, if he were not in fact liable. The proof in the case scarcely tends to show that he had not retained the money in his hands, and is very far from that clear evidence which would have authorized a verdict for the defendant on that issue. Taken in connection with the evidence, the instruction was clearly right. Under the plea of payment there was no evidence offered, except the indorsements of the payment of interest as they appeared on the bonds. These were excluded from the amount of the verdict, which, so far as that plea is concerned, is for the proper amount. The amount of the verdict is also complained of. It appears by computation that it includes interest at 7 per cent., and the 5 per cent. damages stipulated for in the bonds. There is no issue upon the record to which any evidence offered would have been applicable, for the purpose of reducing the amount of the verdict; but, supposing the defendant entitled to show, in an action of debt upon specialty, in which interest is sought to be recovered in the form of damages for detention, any matter proper to reduce the amount, we think it is not shown in this case. It appears from the evidence that the bonds were given to settle a defalcation, and they were made in the form required upon loans, to become due at future periods of time, with interest payable annually, and we are to pre 1855. HALE V. sume that the parties intended to give them the character May Term, of a loan. It was of little consequence whether the money was paid, and received back in the form of a loan, or retained by Shook. Had the former been done, the bonds PLUMMER. would have been in substantially the same form. It was treated by the parties as a loan, by the payment of interest from time to time, and we think the jury had a right so to regard it. Per Curiam.-The judgment is affirmed, with 1 per cent. damages and costs. E. Dumont, for the plaintiffs. J. Ryman, for the state. HALE and Others v. PLUMMER and Others. By the chancery practice, if affirmative matter in an answer which is made a cross bill, is not denied either by a replication or an answer to it as a cross bill, it is taken as true. A release of dower by the wife in the conveyance of the husband's real estate, is a valuable consideration, and the sum to be paid for it may be secured to the wife through a trustee, if the parties so agree. The wife of a partner has an inchoate right of dower in real estate of the partnership, upon which the character of personalty has not been purposely impressed by the partners, and which is not needed to discharge the debts of the partnership or to adjust the claims of the partners as between themselves. ERROR to the Floyd Circuit Court. GOOKINS, J.-This was a bill to foreclose a mortgage, brought by Plummer, and Benton and wife, against Hale. The property mortgaged was part of a lot in the city of New-Albany. The mortgage was made to Plummer, as trustee of Mrs. Benton, to secure the payment of ten promissory notes of 100 dollars each. The first and second notes having been paid, and the third and fourth being Monday, |