Winson v. Sullivan , 8 Teiss. 289 ( 1911 )

DUFOUR, J.

The defendant urges as a defense to this suit on two promissory notes that the payment of usurious interest made by him exceed the amount of the notes, and he asks for judgment for such excess under Act 68 of 1908, -which allows such usurious interest to be recovered within two years from the time of its payment.

It is shown by defendant, who was evidently believed by the trial judge, that the interest or discount charged When a new note wiais given for a maturing one was never capitalized or included in the note but was paid in cash.

This fact brings the ease within the doctrine of Chadwick vs. Menard, 104 La. 48; Huntington vs. Westerfield, 119 La. 615, and O’Connor vs. Levy, 4 Court of Appeal 1, allowing defendant to recover interest thus paid, if seasonably demanded.

The amount of interest paid from Mtetrch 1908 to March, 1910, the day the answer was filed, is $191; deducting $118, amount sued for, there remains an excess of $73. The judgment dismissing plaintiff’s demand and allowing defendant $69, as prayed for, isi correct.

■Judgment affirmed.