To constitute usury, the borrower must not only be obliged to return the principal at all events, but more than lawful inter est ; this part of the agreement must be made with full consent and knowledge of the contracting parties ; 3 B. & P. 154: The fact that the usurious interest is paid in notes of another party, instead of money, is immaterial ; Pritchard v. Meekins, 98 N. C. 244, 3 S. E. 484 ; Savannah Say. Bank v. Logan, 99 Ga. 291, 25 S. E. 692.
When the contract is made in a foreign country, the rate of interest allowed by the laws of that country may be charged, and it will not be usurious, although greater than the amount fixed by law in this; Story, Conti. of Laws § 292. Parties may contract for in terest according to the place of the contract or the place of performance; Miller T. Tif fany, 1 Wall. (U. S.) 298, 17 L. Ed. 540; Hous ton .v. Potts, 64 N. C. 33. Where there is no agreement made, the law of the place of the contract governs, in the absence of any intent to evade the usury laws; Merchants' Bank v. Griswold, 72 N. Y. 472, 28 Am. Rep. 159. A note made, dated, and payable in New York, without intent of maker that it should be elsewhere discounted, if negotiated in an other state at a rate of interest lawful there, but excessive in New York, is usurious ; Ror er, Int. St. Law 112; Dickinson v. Edwards, 77 N. Y. 573, 33 Am. Rep. 671. See CONFLICT OF LAWS.
To constitute usury both parties must be cognizant of the facts which make the trans action usurious; Powell v. Jones, 44 Barb. (N. Y.) 521; but a mistake in law will not protect the parties ; Maine Bank v. Butts, 9 Mass. 49; though a miscalculation will, it seems; Bank of Utica v. Smalley, 2 Cow. (N. Y.) 770, 14 Am. Dec. 526. If a contract be usurious in itself it must be taken to have been so intended; Burwell v. Burgwyn, 100 N. C. 389, 6 S. E. 409. An agreement by a mortgag or to pay taxes on the nortgage debt is not necessarily usurious; Banks v. McClellan, 24 Md. 62, 87 Am. Dec. 594; nor is a clause in a bill of exchange, providing attorney fees for collection; First Nat. Bank v. Canatsey, 34 Ind. 149; and so of a mortgage, or of a note; Dorsey v. Wolff, 142 Ill. 589, 32 N. E. 495, 18 L. R. A. 428, 34 Am. St. Rep. 99.
Where the statute declares that the penal ty of usury shall be the forfeiture of all in terest contracted to be paid, the lender may in an action on the contract recover the sum actually loaned or paid, but no interest; Car ter v. Carusi, 112 U. S. 478, 5 Sup. Ct. 281, 28 L. Ed. 820 ; Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564, 65 L. R. A. 602, 101 Am. St. Rep. 233 ; Fletcher v. Alpena Cir. Judge, 136 Mich. 511, 99 N. W. 748 ; Citizens' Nat. Bank v. Donnell, 195 Mo. 564, 94 S. W. 516; Leipzi ger v. Van Saun, 64 N. J. Eq. 37, 53 Atl. 1; Erwin v. Morris 137 N. C. 48; 49 S. E. 53.
In some states statutes have been enacted which adopt the equitable rule and permit the usurious lender to recover the principal sum actually loaned with legal interest there on; Noble v. Walker, 32 Ala. 456; Phila. Loan Co. v. Towner, 13 Conn. 249; Harrell v. Blount, 112 Ga. 711, 38 S. E. 56; Tux bury v. Abbott, 59 Me. 466; Van Auken v. Dunning, 81 Pa. 464; Crim v. Post, 41 W. Va. 397, 23 S. E. 613. It is generally provided, further, that in an action brought by the lender on the usurious contract, any usurious payments already made shall be credited on the sum otherwise recoverable; Rogers v. Buckingham, 33 Conn. 81; Haas v. Flint, 8 Biackf. (Ind.) 67; Lombard v. Gregory, 81 Ia. 569, 47 N. W. 298; Cadiz Bank v. Slemmons, 34 Ohio, 142, 32 Am. Rep. 364; Jones v. Rider, 60 N. H. 452.
A bona Aide sale by one person of a bond of another, at an exorbitant rate of discount, is not illegal ; Donnington v. Meeker, 31V. J. Eq. 362. A sale of a note or mortgage for less than its face, with a guarantee of pay ment in full, is not usurious ; Goldsmith v. Brown, 35 Barb. (N. Y.) 484 ; nor is a con -tract to pay a bushel and a half of corn with in a year, for the loan of a bushel ; Morrison v. McKinnon, 12 Fla. 552. An agreement to pay interest on accrued interest is not invalid ; Quimby v. Cook, 10 Allen (Mass.) 32 ; Stew art v. Petree, 55 N. Y. 621, 14 Am. Rep. 352 ; but it has been held that compounding in terest on a note is usurious; Cox v. Brook shire, 76 N. C. 314 ; but see Bowman v. Nee 46 Ill. App. 139.
Interest may be collected on coupons ; Rich ardson v. Campbell, 34 Neb. 181, 51 N. W. 753, 33 Am. St. Rep. 633.