This is a suit on a promissory note made by defendant to-the order of plaintiff on the twenty-eighth of July, 1870, for $5880, due first of January, 1871, with eight per cent interest after maturity and secured by mortgage. Judgment is asked for the amount of the note,, less one hundred dollars paid on the fifteenth of February, 1876, with interest from first of January, 1875 (to which time it is admitted to be paid), five per cent attorney’s fees, and costs.

The plea is payment. Judgment was rendered as prayed for, and defendant appealed.

The evidence shows that the several payments of interest wero at the rate- of twenty per cent, but that they were, by agreement, imputed to the interest. The plea of usury is not specially made, but defendant contends he should have the full benefit of these payments as being in *607excess of the interest stipulated- in the note. All the evidence is in without objection, and, neither usury nor prescription being pleaded by the-parties respectively, we must consider the payments as executed contracts. And, it may be added, the payment of any thing but interest is not proved, which it was incumbent on defendant to do under the pleadings, the plaintiff having alleged that tho interest to a certain date had been paid, and the defendant having pleaded payment in', general terms. Whether the defendant might have sued within a year .'of each payment to recover it back as usurious interest it is unnecessary to' determine in this case. Damages for a frivolous appeal are asked for, but under the circumstances we think they should not be allowed.

Judgment affirmed.