¶1"We think the district court were right in-reversing the judgment of the court of common pleas.
¶2The recovery is resisted on the grounds that the usurious interest was voluntarily paid-as such interest by the principal debtor. Independent of the act of February 18,1848 (1 S. & C. 744), this would constitute a defense to the action. But under that act all payments of interest in excess of the rate allowed by law at the time of making the contract, are to be deemed payments on account of the principal; and as between the original parties, no more could be recovered than the balance found due after deducting the excess of interest paid or exacted.
¶3As the negotiation of the note by Kock subjected the sureties to the payment of the note in favor of the holders, in excess of what they would have been required to pay had he retained the note himself, we think they may, under the statute, recover back the excess they have thus been required to pay.
¶4 Leave refused.