Brestle v. Mehaffie

The opinion of the Court, filed was delivered by

Gibson, J.

This cause was tried before the report of Oyster v. Longnecker was published, and ruled in conformity to the primitive decisions that a retention or receipt of anything in the shape of interest on a usurious contract, is a taking within the statute. But it has been settled, both here and in England, that until the lender has received more than principal and interest, bonus included, for the sum actually advanced, the offence is not consummated. Judging from the evidence on our paper-book, it would *119 appear that not even the bonus had been received. To redeem their land from execution, the Mehaffies agreed with Brestle to get him an assignment of the judgment against them for a loan •less than the amount of the debt, the difference being made up by themselves. With the money borrowed, and the money advanced by them, they satisfied the execution, and the plaintiffs in the judgment assigned it to Brestle. Here the evidence stops. It was affirmed in the argument, that of the proceeds of the judgment, Brestle received the sum- he had advanced, with legal interest for it, and no more; and that the money put into the purchase of the judgment by the Mehaffies, was applied for their benefit to other liens on their land. Should that turn out to be the fact, it will result that the penalty has not been incurred; and the cause must, therefore, go to another jury for further development.

Judgment reversed and venire de novo awarded.