majority">Mr. Justice Handy

delivered the opinion of the court.

The errors assigned in this case are, that the first and second instructions asked in behalf of the defendant below were improperly refused.

The first instruction so refused, had reference to the effect of a partial payment as taking the case out of the operation of the statute of limitations. This instruction, as it appears copied into the transcript of the record, is unintelligible; but from what we can conjecture as to what it really was, as asked in the court below, it was irrelevant to the case under the state of evidence. The evidence showed a positive promise of the defendant, in the year 1846, to pay the note, and this seems to be the evidence relied on by the plaintiff below to prevent the bar of the statute of limitations. The instructions for the plaintiff below are not made a part of the record here, and there is nothing in this record to show that any point was made in behalf of the plaintiff on the trial below, in relation to a partial payment taking the case out of the statute. For all that the record shows, then, this instruction was properly refused.

As to the second instruction. It appears by the evidence, that the consideration of the note sued on was the loan of *470money; and that, in making the loan, ten per cent, upon the amount was reserved for one year’s interest, the defendant’s note being taken for the sum actually received, with the amount reserved added to it, payable twelve months after date. This rendered the note usurious. The plaintiff might legally have loaned the defendant the full amount of the note, as stated on its face, $400, and taken the note stipulating for interest at the rate of ten per centum; or he might have loaned the sum of $360, and added thereto ten per cent, on that amount, for one year’s interest, and taken the note, payable at .twelve months, for the $360, with ten per cent, added thereto. But the defendant received only $360, and gave his note for $400, which was more than the.amount actually loaned, and ten per per cent, added thereto. This was, in law, usurious, and under the provisions of the statute, it debarred the plaintiff from recovering more than the sum actually loaned, and without interest, under the repeated adjudications of this court. The second instruction asked by the defendant was, therefore, improperly refused.

The judgment is reversed, and the case remanded for a new trial.

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