1. To avoid a security as usurious you must show that the agreement was illegal from its origin. If the taking of usurious interest be contemporaneous with the making of the bond, or in the contemplation of the parties, the security will be void, although no usury appears on the face of it.
2. If a loan be made in silver, and the bond to secure it is made, by a bona fide agreement, payable in current bank notes, it is not usurious to include in the bond for such loan the difference in value between such notes and the silver loaned.
DANIEL, J.
To avoid a security as usurious, you must show that the agreement was illegal from its origin. If the taking of usurious interest be cotemporaneous [contemporaneous] with the making of the bond, or in (417) the contemplation of the parties, the security will be void, although no usury appears upon the face of it. Therefore, when A. had borrowed £ 100 from B., for which he had given a bond payable with lawful interest; but, at the time of the advance of the money, paid an additional premium, Lord Mansfield decided that the bond was void. Fisher v. Beasley, Douglass, 225; Comyn on Usury, 188, 189. In the case now before us, the Judge charged the jury that if the plaintiff, by the contract, had secured to himself a greater rate of interest than six per centum for the money loaned, and that it was his intention to do so, the contract was usurious and void. We see no objection in point of law to this charge.
What the counsel for the plaintiff intended by his prayer to the Court to charge, is quite unintelligible from the case made out and sent up to this Court. It may be that he intended to pray the Court to charge the jury, that if it was at the time agreed, that the bond then taken was to be paid in current bank paper, and that part of the agreement had been left out of the bond by mistake, then the intent to violate the statute would be negatived, and the bond would not be usurious. Had such an instruction been prayed, we think it ought to have been given. But we are unable to see from the case sent here, what the counsel wanted the Judge to charge, and therefore no opinion can be given by us upon his prayer.
PER CURIAM. No error.
Cited: Wharton v. Eborn, 88 N.C. 347.
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