The opinion of the court was delivered by

The facts found by the county court, in this case, show, that the plaintiff paid to the defendant more than the money due and the interest, and that this was in pursuance of the written contract between the parties, by adding interest in advance into the principal, and paying interest upon the gross sum. The court say, indeed, that this was not in pursuance of any agreement to give or receive more than the legal rate of interest, but the notes were so written, as not to express the real contract between the parties. But the defendant received the money. If he received it as interest, eo nomine, whether it was in pursuance of any corrupt previous agreement, or not, is immaterial. It is none the less usury, whether the agreement was cotemporaneous with the lending, or made subsequently, — whether made before the receipt of the money, or at the time, — whether the money was paid in advance, or reckoned into the note and paid with the principal sum; whenever paid as usury and eo nomine, it creates an immediate right of action. The ques*275tion, whether, at the time of the loan, or agreement to forbear payment, there was any agreement to pay and receive more than legal interest, was never important, except under the English statute of usury and others like it, where, such being the ease, the party receiving the illegal interest not only became liable to refund that, but forfeited the principal sum.

It seems to us a most remarkable construction of the defendant’s contract and his actions, under the circumstances, to say that he did not finally take this money as usury. We think, he ought to be, es-topped to deny, that such was the fact, after having included it in the note, which was the only legal evidence of the contract, and actually taking the money at the end of the credit.

But if it be possible to suppose, that all this was done under some misapprehension, or delusion, of the parties, then it is impossible to say it was a voluntary payment. It is no more, nor less, than a payment by mistake, and, in that view, may be recovered back in this form of action. But the fact is patent, upon the face of the transaction, that the excess was paid and received as usury, and, by the very words of the statute, it may be recovered back in this form of action. Judgment reversed and case remanded.