#### William Murry, plaintiff in error v. Josiah Crocker, defendant in error.

Error to St. Clair.

A defendant cannot avail himself oí the statute against usury, unless thesame be pleaded, and an application be made to the Court where the cause is pending, for the benefit of the act.

J. W. Whitney, for the plaintiff in error.

A. Cowles, for the defendant in error.

Smith, Justice,

delivered the opinion of the Court:

This xvas an action instituted originally before a justice of the peace, and taken by appeal to the Circuit Court.

The only question presented by the pleadings in this case, arises on the note, which contained a provision that if the amount was not paid when it became due, then interest xvas to be paid therefor at' the rate of txventy per cent, until paid. The Circuit *213Court rendered a judgment on the note with interest at the rate of six per cent, per annum, and to this judgment the defendant objects, alleging that the contract was an usurious one. The pleadings do not show that the question of usury was ever raised in the Circuit Court or before the justice. The statute relative to usury provides that if it shall appear to the court before which the action shall be tried, by the pleadings in the case, and on application of the defendant, that a greater rate of interest shall have been reserved or taken, than is reserved by the act, the defendant shall recover, his full costs, and the plaintiff shall forfeit threefold the amount of the whole interest reserved; and the plaintiff shall have judgment only for the balance.(1)

Now in this case, it neither appears by the pleadings in the case, that the question of usury was raised, nor that an application contemplated by the act, was ever made; consequently, this Court cannot consider the point in any way before tbe Court for its adjudication. Why the Circuit Court changed the rate of interest, we cannot collect from the record, but as the reduction of the rate of interest was in favor of the plaintiff in error, he cannot surely object to the judgment below for that cause.

The judgment of the Circuit Court is affirmed with costs.

Judgment affirmed.

(1)

R. L. 349; Gale’s Stat. 343.