1260 INTEREST AND USURY. [ART. 49

dollars for the forbearance of one hundred dollars for one year, and so
after that rate for a greater or lesser sum, or for a longer or shorter
;time, he shall be deemed guilty of usury.

For the test as to whether a transaction is usurious, see Williams v.
Reynolds, 10 Md. 67; Sauerwein v. Brunner, 1 H. & G. 482; Wetter v.
Hardesty, 16 Md. 11; Wilson v. Russell, 13 Md. 495; Robertson v. Home-
stead Assn. 10 Md. 398; Brown v. Waters, 2 Md. Ch. 201; Pitzhugh v
McPherson. 3 Gill. 409; Thomas v. Catheral, 5 G. & J. 23; Stockett v.
Elllcott, 3 G. & J. 123; Caton v. Shaw, 2 H. & G. 14; Tyson v. Rickard, 3
H. & J. 109; Hogmire v. Chapline, 1 H. & J. 29.

This section in itself does not avoid the contract where a higher rate
of interest than that therein allowed is exacted. Bandel v. Isaac, 13 Md. 229.
Cited but not construed in Lovett v. Calvert, etc., Mtge. Co., 106 Md. 136.
See notes to sec. 1.

1904, art. 49, sec. 4. 1888. art. 49, sec. 4. 1860, art. 95, sec. 4. 1845, ch. 352, sec. 4.
4. Any person guilty of usury shall forfeit all the excess above the
real sum or value of the goods and chattels actually lent or advanced
and the legal interest on such sum or value, which forfeiture shall
enure to the benefit of any defendant who shall plead usury and prove
the same.

Effect of this section.

This section and section 5 do not deprive the borrower of his existing
remedies for relief against the payment of illegal interest. Equity will
relieve him, and he can also maintain an action at law. He may except
to the confirmation of an award on the ground of usury, although such
defense was not made before the arbitrator. Woods v. Matchett, 47 Md.
395; New York, etc., Co. v. Davis, 96 Md. 87. See also, Smith v. Myers, 41
Md. 433; Scott v. Leary, 34 Md. 398; Baugher v. Nelson, 9 Gill. 299; Carter
v Dennison. 7 Gill. 158; Doub v. Barnes, 1 Md. Ch. 141.

The act of 1845, ch. 352, is nothing more than an act relating to the
remedy. Until the borrower brings the defense of usury to the attention
of the court, it has no existence in legal contemplation. Article 3. section
49, of the constitution of 1851, construed in connection with this section
Scott v. Leary, 34 Md. 397; Bandel v. Isaac, 13 Md. 229; Baugher v. Nelson,
9 Gill, 299.

Although the borrower is entitled to recover back the usurious surplus,
such right of action is not created by the code. The code fixes the rate
of interest only. Williar v. Baltimore, etc., Loan Assn., 45 Md. 559.

Usurious instruments are not avoided, but are valid to the extent of
the principal and legal interest. Gwynn v. Lee. 1 Md. Ch. 450. See also,
Smith v. Myere. 41 Md. 433; Montague v. Sewell. 57 Md. 417; Gwynn v.
Lee, 9 Gill. 145.

Generally.

This section and section 5 are constitutional, although applied to a note
executed before the satute was passed. Baugher v. Nelson, 9 Gill, 302;
Herbert v. Gray. 38 Md. 533; Wilson v. Hardesty, 1 Md. Ch. 67; Anderson

v. Baker. 23 Md. 565.

The burden of proving usury rests upon the defendant—proof insufficient.
Williams v. Banks, 19 Md. 38.

In the case of a usurious mortgage, the assignee of the equity of redemp-
tion may claim abatement for the illegal interest. Andrews v. Poe, 30 Md.
489.

This section applied. Williams v. Banks. 11 Md. 235.

The wisdom of this section upheld. This section referred to in constru-
ing article 23, section 124. Commercial Assn. v. Mackenzie, 85 Md. 141.

This section contrasted with the law of the District of Columbia on
usury. Eastwood v. Kennedy, 44 Md. 571.