If a contract is accidentally usurious, that is, made so by some mistake in calculation, or other error in fact, against the intention of the parties, the mistake may be corrected, and the contract saved, (w) But if, in fact, a greater rate of interest

(s) Tregoning v. Attenborough, 7 Bing, 97, 4 Moore & P. 722; Hargreaves v. Hutchinson, 2 A. & E. 12; Ramsdell v. Morgan, 16 Wend. 574.

(t) Bosauqnet v. Dash wood, Cases temp. Talbot, 38, per Lord Mansfield; Browning v. Morns, Cowp. 793.

(u) Tomkins v. Bernet, 1 Salk. 22.

(v) Clarke v Shee, Cowp. 197; Browning v. Morris, Cowp. 790; Bosanquet v. Dashwood, Cases temp. Talbot, 38; Wheaton v. Hibbard, 20 Johns. 292: Beardaley, C. J., Schroppel v. Corning, 5 Denio, 240.

(w) Anonymous, 1 Freera. 253, pl. 268. It was said by North, C. J., that " if is * taken than the law allows, by reason of an erroneous opinion of the lender that he had a right to this interest, this is a mistake of law, and, agreeably to the general rule, will not excuse the lender, and the whole effect of usury will attach to the contract (x)

1 Usury paid on a note, but not included in or indorsed on it, is recoverable by the person paving, though judgment has been entered on the note. McDouald v. Smith, S3 Vt. 33* See Wells v. Robinson, id. 202, St. Albans Bank v. Wood, id 491. A sealed receipt "in full settlement and payment for all extra or unlawful interest," executed at the time the money was lent, and a part of the transaction, is no bar to a recovery of the usury. Herrick v. Dean, 54 Vt. 568. - K.

2 In some States more may be recovered. The statutes of each State must be consulted.

The question has been very much discussed, whether banks, or other money-lenders, or bill or note discounters, have a legal a scrivener, in making a mortgage, etc, do, through mistake, make the money payable sooner than it ought to be, or reserve more interest than ought to be, this will not make it void within the statute, because here was no corrupt agreement." See also Nevison v. Whitley, Cro. Car. 501, W. Jones, 396; and Buckley v. Guildbank, Cro. Jac. 678. Glasfurd v. Laing, 1 Camp. 149, was an action on a bill of exchange for £3,180; the defendants resisted the action on the ground of usury, and showed that the parties for whom the defendants accepted, being indebted to the plaintiff in St. Kitts for £6,000, with six per cent. legal interest there, agreed with the plaintiff in England, that the principal should be paid by two bills of exchange, one in twelve months and the other in two years; and accordingly the present bill for .£3,180, and another for £3,360 were drawn, but that, according to the legal rate of 5 per cent. interest in England, the bills should have been for only £3,150 and £3,300. The plaintiff's agent, however, swore that the increased amount arose from an oversight of his; that having been called upon to calculate the sum due on the debt, for which the bills were to be drawn, after calculating the amount due on the original debt at £6 per cent., as permitted in the West Indies, he inadvertently calculated the interest to grow due in England at the same rate. Sir James Mansfield, C. J., held, that the action might clearly be maintained for the sum bond fide due, as the excess in the amount of the bill had arisen from a mere mistake, and no intention to take usury could, at any rate, be imputed to the plaintiff. See also Gibson v Stearns, 3 N. H. 185; Livingston v. Bird, 1 Hoot, 303; McLean, J., Lloyd v. Scott, 4 Pet. 224; McElfatrick v. Hicks, 21 Pa. 402; Marvine v. Hymers, 2 Kern. 223; Bevier v. Covell, 87 N. Y. 50.

(x) Marsh v. Martindale, 3 B. & P. 154; Maine Bank v. Butts, 9 Mass. 49. This was an action brought by the bank to recover possession of certain premises mortgaged to them by the defendant, to secure several notes given by him to the bank. The defendant alleged, that on the date of mortgage deed, the plaintiff loaned him $ 10,000, and that it was agreed between them that more than 6 per cent. interest should be paid upon the loan, and that the notes secured by the mortgage were given to secure such principal and illegal interest, and therefore he pleaded the statute of usury. It appeared, upon the trial, that there had been a forbearance of $10,000 by the bank, and that the interest secured in the mortgage was more than 6 per cent. upon the $ I0,000; but it was proved that the excess had arisen, not from a direct reception by the bank of more than 6 per cent. upon any notes, but by reason of the defendant's having, in order to meet notes for sixty-three days, at the times they became due, procured new loans, a week previous to the expiration of the time of credit given for the former loans, giving new notes therefor; and it was contended, that although the money thus received amounted to more than 6 per cent. upon the original debt, for the reason that the bank retained the amount of the new notes until the old notes became due, for the purpose of meeting them, yet, that as no more than the usual profits upon loans made on banking principles were received, such agreements were not usurious. But the court decided, that no bankiug Company, any more than an individual, had authority to make a discount or loan, at a greater profit than 6 per cent. interest, nor was exempt from the restrictions of the statute against usury. And Sewall, J., said: " It is probable that in this case there was no intentional deviation on the part of the bank, but a mistake of their rights. This, however, is a consideration which must not influence our decision. The mistake was not involuntary, as a miscalculation might be considered, where an intention of conforming to the legal rule of interest was proved; but a voluntary departure from the rate. An excess of interest was intentionally taken, upon a mistaken supposition that banks were privileged, in this respect, to a certain extent. This was, therefore, in the sense of the law, a corrupt agreement; for ignorance of the law will not excuse." See also Childers v. Deane, 4 Rand. 406.

right to adopt, as a principle of calculation, the rule that gives rather more than legal interest upon notes discounted, or to which the interest is added, in case of fractional portions of years and months. Bowlett's Tables, which are calculated mainly on the supposition that a year consists of 360 days, gives this advantage to the lender. The use of these tables, or of a similar principle of calculation, is very general, not to say universal. And although this practice is, strictly speaking, usurious, and there is some conflict in the authorities, we have no doubt that the prevailing rule of law sanctions this practice, * where it is adopted, merely as a convenience, and in conformity to usage, (y)

(y) In New York Firemen Ins. Co. v. Ely, 2 Cowen, 678, a note for ninety days, indorsed by the defendants, was the cause of action; it was given for two others, which in tarn were a renewal of others. Some of the previous notes had been payable at ninety days, and all the notes had been discounted by the plaintiffs, at 7 per cent., and the discount deducted in advance. The secretary of the company testified that his practice had been to cast interest, considering thirty days the twelfth of a year, sixty days the sixth, and ninety days the fourth of a year, and to cast interest at 7 per cent. (the lawful rate) accordingly. The three days of grace he called one-tenth of a month. The question was whether the note sued upon was usurious, and it was decided to be so. The court say: "It must be conceded, that more than 7 per cent. per annum was received upon the discount of the note in this case. How is the presumption of law, that it was received in pursuance of a corrupt agreement, sought to be repelled ? Not by showing that the sum paid for interest was greater than the parties intended should be paid; that there was a mistake in telling the money; or that the clerk who cast the interest had fallen into an arithmetical error; but by showing that the excess arose from the adoption of a principle of calculation, which the parties knew would give more than 7 per cent., though they believed it was not a violation of the statute. In other words, the plaintiffs received more than 7 per cent., because they believed that they had a legal right to receive more. If they judged erroneously, it was a mistake in point of law, and not in point of fact; and unless there be something in the case of usury to distinguish it from all other cases, their ignorance or mistake in relation to the law can afford them no protection/' And after examining the cases upon the subject, the court concluded that the mistake of the parties did not prevent the contract from being usurious, as matter of law, and its consequences from resulting. The same view is taken in Utica Insurance Co. v. Tillman, 1 Wend. 555; Bank of Utica v. Wager, 8 Cowen, 398; State Bank v. Cowan, 8 Leigh, 253. On the other hand see Lyon v. State Bank, 1 Stewart, 442; Planters Bank v. Snodgrass, 4 How. (Miss.) 573; Duval v. Farmers Bank, 7 Gill & J. 44; Duncan v. Maryland Savings Institution, 10 Gill & J. 299; Bank of St. Albans v. Scott, 1 Vt. 426; Agricultural Bank v. Bissell, 12 Pick. 586. In this last case the cashier of the bank took $21 as the interest of $2,000 for sixty-three days. Shaw, C. J., said: "That this sum a little exceeds 6 per cent. for one year, as fixed by statute, is very obvious. If this were done with design, and with the intent of taking more than, the lawful interest, or if done in pursuance of the adoption of a principle of computation which would give more than the legal rate, we are not prepared to say that it would not be usurious, however small the excess over the legal rate. But, as the statute prescribes the rate of interest for one year, and so at the same rate for a longer or shorter time, it is obvious that when the interest is to be computed in days or months, it is impossible to follow the pre-scribed rule precisely, without taking the fraction of a day; and that this is not required, is now settled by the whole curreut of authorities. From the impossibility of executing the statute with literal exactness, has resulted the necessity of resorting to an execution cy pres, in many cases where it is intended to conform to the intent and spirit of the statute. So it has been the practice to