Doug. 235, was an action of debt to recover the penalty for taking usurious interest. One Grinds! had borrowed £100 of the defendant, for which he had given a bond, for' the payment of the principal and interest, at the rate of £5 per cent., at the end of six months. He also paid two guineas to the defendant, as a premium, at the time when the money was advanced. At the end of the six months, the £100 was repaid, and £2 10s. for interest. This action was brought within a year after the payment of the capital and interest, but more than a year after the two guineas were paid and the money advanced, and the question was whether the action was

1 An accommodation maker of a promissory note cannot avail himself in a suit upon the note of a payment of usury thereon by the party acommodated. Cady v. Goodnow, 49 Vt. 400. See also, to the point that usury is a personal defence only, Studabaker v. Marquardt, 55 Ind. 341; Smith v. Pittsburg Bank, 26 Ohio St. 141. - K.

2 The repeal of a statute making a usurious contract void as to the excess of lawful interest will not make such a contract valid as to such excess, but will take away a penalty attached to the making of such a contract. . Woolley v. Alexander, 99 111. 188. - K.

(n) Gardner v. Flagg, 8 Mass. 101; Thompson v. Woodbridge, id. 256; Sewall, J, Chad bourn c. Watts, 10 Mass. 124. In Sir Wollaston Dixie's case, 1 Leon. 95, Gent, B., said: "If I lend one a hundred pounds without any contract for interest, and afterwards, at the end of a year, he gives me £20 for the loan thereof, the same is within the statute, for my acceptance makes the offence without any bar-sain or contract." In Floyer v. Edwards, Cowp. 114, Lord Mansfield said: " In case the agreement originally for the payment of principal be legal, and the interest does not exceed the legal rate, but afterwards, upon payment being forborne, illegal interest is demanded, there the agreement by retrospect is not void, but the parties are liable to the penalty of treble value." See, also, Radley v. Manning, 3 Keble, 142, pl. 13; Lord Mansfield, in Abrahams v. Bunn, 4 Burr. 2253, and previous note.

(o) Wade v. Wilson, I East, 195; Wood v'. Grimwood, 10 B. & C. 689.

(p) In Wood v. Grimwood, 10 B. & C. 696, in which a bonus had been paid, and afterwards a half year's interest, which, together with the bonus paid, constituted more than the lawful interest, and subsequently legal interest was paid half yearly, on the original debt, it was decided, that the offence of usury was complete when the first half yearly payment was made; that the bonus was not to be apportioned throughout the whole time of the loan. So that an action brought for penalties, at any time within one year after the payment of any half year's interest, could be maintained, as being in time. And it was doubted whether, even if such bonus was apportionable, the only offence for which the lender could be prosecuted had not been committed upon the reception of the first half year's interest.

Parke, J., said: " I am of opinion that the moment one penalty was incurred, upon one bargain or loan, no other offence could be committed in respect of the same bar-pun or loan, by reason of the lender having received a further sum, by way of usurious interest. The statute of 12 Anne, st. 2. c. 16, enacts: ' That all persons who shall, upon any contract, take, accept, and receive, by way or means of any corrupt bargain, loan, etc., for the forbearing or giving day of payment, for one whole year, of or for their money, above the sum of £5 for the forbearing of £100 a year, and so after that rate, shall forfeit and lose, for every such offence, the treble value of the moneys lent' etc. The statute therefore requires two things to constitute the offence: a corrupt bargain, and an actual taking of a higher rate of interest than 5 per cent. for forbearing or giving day of payment for one whole year. As soon as these two things concur, the offence contemplated by the statute is completed. The party who has received the usurious interest in respect of the corrupt bargain, then incurs the penalty, and I think the only penalty, attached by the statute to that corrupt bargain, and the receipt of usurious interest thereon, by forfeiting treble the value of the moneys lent or forborne. If it were otherwise, and each subsequent payment of the legal interest should constitute a distinct offence of usury, where a premium has been given, the consequence would be, that if a party took legal interest for such a loan, at intervals, he would be liable to forfeit treble the amount of the moneys lent, not merely once, but each time he re-ceived the interest; and if those intervals were short, penalties to the amount of many thousands might be incurred by a loan of a single £100. This never could have been the intention of the legislature. I think it must have meant, that no more than three times the amount of the money lent could ever be forfeited by the offender." But in Lamb v. Lind-sey, 4 Watts & S. 449, this question was directly decided in an opposite way. Money was loaned at usurious interest, the device of the sale of property and a lease back, being adopted, to disguise the transaction. The rent, amounting to 15 per cent. upon the money loaned, was overthrown in England, and may be doubted here, (s) So, if he has paid money on a usurious contract, and sues for its repayment, it seems that he will recover so much as he has paid usuriously,(t)1 but no more;3 that is, he will not recover the legal interest, which he has paid on a usurious contract Courts were at first inclined to deny the right of a party paying usurious interest, to recover back any portion of the money so paid, on the ground that both parties to such a transaction were in pari delicto, and the party paying the money parted with it freely, so that the maxim volenti non fit injuria would apply, (u) But this is not so now, the rule being that above stated; and the distinction has been taken between statutes enacted on general * grounds of policy and public expediency, in which each party violating the law is in pari delicto, and entitled to no assistance from a court of justice, and those laws enacted to protect weak or necessitous men from being overreached, defrauded, or oppressed, in which event the injured party may have relief extended to him, and the whole purport and reason, both of the law of usury and of the great mass of decisions under it, indicate, that the lender on usury is regarded as the oppressor and the criminal, and the borrower as the oppressed and injured, (v)