Page:Federal Reporter, 1st Series, Volume 6.djvu/825

 VABY V. NORTON. 813 �lias been held that usury paid will net uphold an agreement to forbear. Cornwall v. HoUy, 5 Eichardson, (S. C.) 47; Bank v. Harrison, 57 Mo. 503. Plaintiff's brief also cites 1 J. B. Lee, (Tenn.) 360; 48 Me. 36; 12 Kan. 500. �In Wisconsin it was decided, in Meswinkle v. Jung, 30 Wis. 361, that usurious interest paid was net a sufficient con- sideration ; but in a recent case the earlier decision bas been overruled. Hamilton v. Prouty, 7 N. W. Eep. 669, 3 Wis. 291. �In Kentucky, Indiana, Hlinois, and Ohio, the statuts, like that of Micbigan, does not make the contract void, and the decisions are uniform that usurious interest paid is avaluable consideration and upholds the agreement to forbear. Kun- ningham v. Bradford, 1 B. Monroe, 326; 8 B. Monroe,' 382; Cross v.Wooch 30 Ind. 378; 3 Ind,.34:6; 16 Ind. 115; I71nd. 202; Whittemore v. Ellison, 72 lit. 301; 73 111. 170; 78 111. 267; McComb v. Kitteridge, 14 Ohio, — ■. See 1 Pairs, on Notes and Bills, (2d Ed.) 240. �It is not believed that courts of justice, where the statute declares that usury shall not render a contract void, ought to allow the usurer to plead successfully want of consideration to defeat his agreement, when he bas received and appro- priated the money of'his debtor. It is manifest that the money paid by Norton cannot, under the law of this state, be iecovered back by him, and none of the other defendants have any claim upon it. Usury is a personal defence, to be interposed by the debtor, or by those who, by reason of inter- est acquired in the subject-matter, are entitled to employ his defences. IMich. 84; 11 Mich. 59. �I agree with opinions in some of the cases that he who accepts usury as consideration for his agreement is estopped from claiming want of consideration. It is no offence, and is not wrong per se, to take usury, and there is no justice in saying that money, because received as usury, bas no legal value. Usury laws are designed as a protection to the debtor class, and not as a shield for the usurer. After Lee and King have pleaded the validity of the agreement to forbear, their right to have the $15 applied as a payment on the note is ��� �