Johnson v. Phillips

The order of seizure and sale herein was enjoined by the defendant on the ground that the note is paid and extinguished by *157payments of usurious interest, as shown by the various credits indorsed on tiie note. It was given on twenty-fifth April, 1854, for $2750 duo ■one year from date with eight per cent, interest after maturity. A few days after its maturity a credit of $250 is indorsed on it “for interest on account up to twenty-fifth April, 1855,”' and annually thereafter up to twenty-fifth April, 1861; the same amount is credited “for interest,” as stated by defendant. The note not bearing- interest before maturity, the first payment is imputed by plaintiff to tho principal, and the demand is made for the balance ($2500) with eight per cent, interest thereon from twenty-fifth April, 1861, to which date it is alleged the interest was paid, and subject to those subsequent credits paid as interest. These three credits are not alleged to be usurious, hut it is ■contended that all tho previous payments were, being ton per cent, annually upon the money loaned, and therefore worked the forfeiture of all interest and should he imputed to the capital, leaving due only $1000, which has been more than paid subsequently.

Tho usurious payments having been expressly imputed by the parties to the interest, can not now he recovered hack nor imputed to the capital, the plea of prescription having been filed. See 6 An. 471; 15 An. 395; 18 An. 715. Prescription may be pleaded in every stage ■ of a cause, even on tbe appeal, but it ought to he pleaded expressly and specially before tho final judgment. R. C. C. 3464.

Judgment affirmed.