October 5, 2012

Dysart v. Logan, Rockcastle, 1829

Dysart vs. Logan.

COURT OF APPEALS OF KENTUCKY

25 Ky. 428; 1829 Ky. LEXIS 121; 2 J.J. Marsh. 428

October 22, 1829, Decided

PRIOR HISTORY:  [**1]  Error to the Rockcastle Circuit; JOSEPH EVE, Judge.

DISPOSITION: Reversed and remanded.

COUNSEL: Owsley, for plaintiff; Kincaid, for defendant.

JUDGES: Judge ROBERTSON.

OPINION BY: ROBERTSON

OPINION

 [*428]  Judge ROBERTSON delivered the opinion of the Court.

B. LOGAN sued S. Dysart on the following note: "On or before the first day of March, 1820, we or either of us promise to pay Benjamin Logan, the full sum of $ 143, with interest at the rate of 12 per cent. from the date. Witness our hands and seals this 7th day of September, 1819.

"SAML. DYSART, [Seal.]

"JOHNSON DYSART, [Seal.]"

Dysart failing to plead, the court rendered judgment against him, for $ 143, with 12 per cent. interest thereon, from the 7th of March, 1819, to the day of the judgment, and for six per cent. interest after that time.

By the act of 1819, February 6th, II. Digest, 1226, it is declared, that all bonds, contracts, &c. for payment of money or goods lent. on which a higher interest than six per centum per annum, shall have been reserved, shall be void to the extent of the excess of the amount reserved over six per cent.

The bond in this case shows on its face, that more than six per cent. interest was reserved for the forbearance [**2]  of the principal. That which appears, need not be pleaded or averred. The court was as much bound to notice the usury, as if it had been averred by the most formal plea. In rendering judgment by default, the court had a right to give judgment for only so much as the plaintiff below showed himself entitled to. His declaration showed clearly, that he was not entitled, legally, to the whole of the 12 per cent. because the bond is void for all over six per cent, and no judgment can be maintained for that which the record proves to be illegal.

Wherefore, the judgment is reversed and the cause remanded, for proceedings consistent with this opinion.

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