Fleming v. Thomas , 27 Ky. 48 ( 1830 )

Chief Justice Robertson,

delivered the opinion of the court.

■ This is a suit in chancery, for enjoining a. judgment'for usury.

The judgment is for the nominal amount .of the note sued on; and'the defendant in error, is attempting to "coerce the entire judgment in specie.

The answer admits, that the consideration of the note, on which the judgment was obtained, was the loan of commonwealth’s paper. The note was drawn for the nominal añiouni of the loan, and more, in dollars. The answer'does not deny, that the paper of the commonwealth was depreciated at the date of the Joan; and it is proved that $100, in specie were worth $199, of such notes. This fact issliown'only by the certificate of Hugh Brent. But this certificate, althoughitmight havebeen excluded, as inadmissible testimony, not having been objected to, hut admitted as'competent evidence, cannot now be questioned'.

' A case of excessive usury is therefore clearly made . out. The allegations of the bill amount to a charge of usury, and its prayer is virtually a prayer for relief from ■ usury; although,therefore, usury is not'charged Hotidem verbis,” the plaintiffin error, was entitled to relief against the judgment, for the whoie amount of the difference between the nominal amount of .the note, and the value at the date of the loan of the commonwealth’s paper, and six- per cent interest on that value, and also to a decree, for costs.

Wherefore, the decree of the circuit court is reversed, and the cause remanded, with instructions to render a decree conformable to this opinion.