6. There is no escape from the taint of usury. Viewing the transaction in the light most favorable to the appellee and admitting, for the sake of the argument, that the husband was not principal in the transaction, we have the case of the lender's agent exacting a commission of 33 1-3 per cent. per annum in addition to interest at 10 per cent. per annum, and including the commission in the principal of the note drawn to the order of the lender, with the knowledge and approval of the lender, who accepts the note and sues upon it, claiming the full amount in her declaration and affidavit under the 73d Rule. In Sullivan v. Snell, 1 MacA. 587, a note for $500 at 90 days, negotiated for $460 to the first holder, was held usurious. A bonus included in the principal of a note is treated as interest, and if, added to the interest expressed, it exceed the legal rate, the transaction is usurious. 27 Encyc. of Law, 1009. Upon the general subject of commissions or bonuses, see Upton v. O'Donahue, 49 N. W. Rep. 267; Bank v. Flint, 54 Ark. 40; Ammondson v. Ryan, 111 Ill. 506; Borcherling v. Trefz, 40 N. J. Eq. 502; Meers v. Stevens, 106 Ill. 549; Sherwood v. Roundtree, 32 Fed. Rep. 113.

Mr. Thomas M. Fields for the appellee:

That the matters recited in evidence do not charge the appellee with usury, see Abb. Tr. Ev. 1010, 1011, and cases cited; Leonhard v. Flood, 56 S. W. Rep. 781; Dellerby v. Goodwyn, 37 S. E. Rep. 376; West v. Equitable Mortgage Co., 37 S. E. Rep. 357. Even a court of equity will not relieve against usury unless the loan with legal interest has been repaid. Stanley v. Gadsby, 10 Pet. 521; Chapman v. Clark, 3 Mackey, 185. Even actual usury between Richards and John Bippus, of which the appellee had no knowledge or to which she was not a party, could not affect her. Moncure v. Dermott, 13 Pet. 345. So the payment of a sum in addition to legal interest, when dependent upon a contingency, does not render the transaction usurious. Spain v. Brent, 1 Wall. 604. Commissions paid by a borrower to

Opinion of the Court.

[18 App.

a third person will not render the loan usurious. Grant v. Phoenix Life Ins. Co., 121 U. S. 105.

The appellant has suffered nothing whatever from the alleged usury. He has not paid it. Even the small sum which he has paid was not applied to the $50 commissions, as it could have been, but was credited upon the actual money and interest due from him. His defense in this cause is utterly devoid of moral and legal support, and is only an attempt to avoid what he himself admits to be a just and unpaid loan by supposed legal technicalities. The judgment merged the note, and he can never be called upon by any person to pay the $50, about his mere agreement to pay which not payment or liability for payment - he makes so much complaint, and by reason of which he seeks to evade his just debt which he owes to the appellee. He shows no case which entitles him to any aid from a court of justice.

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Mr. Justice SHEPARD delivered the opinion of the Court:

1. There was no error in refusing the defendant's prayer for an instruction founded on his first plea. Plaintiff's direct evidence that the money lent to defendant was her separate property, underived by gift or conveyance from her husband, is assailed as insufficient because it appears that it was obtained from the sale of her land in Georgia. The contention is, that in the absence of proof of the law of Georgia relating to the property rights of married women, the presumption is that the rule of the common law prevails there; and that, consequently, the proceeds of the sale of her land became the property of her husband. And it is further contended that, if after receiving the money the husband acquiesced in the wife's claim to it, it then became hers by his gift of conveyance, and was not her separate property under the statute conferring upon her the right to sue and be sued concerning the same in her own name as if she were unmarried. R. S. D. C., Secs. 727, 729.

The positive, and wholly uncontradicted, statement of the wife that the money lent to the defendant had not been ac

quired by gift from her husband, but was her separate property in Georgia, was probably sufficient indirect proof, to prevent the raising of the mere presumption of the existence of the common-law rule of property in respect of married. women in that State; such presumption being one of evidence merely and indulged only in the absence of all evidence to the contrary.

The defendant, however, was in no situation to make such a defense to the action, and the determination of his contention is not necessary.

At the time he borrowed the money, married women were authorized to contract and to bring suits concerning their separate property as if they were unmarried, and this right of separate property has been widened by the act of June 1, 1896. 29 Stat. 193.

Defendant contracted with plaintiff to borrow the money as her separate property, and his note promised to pay her and not her husband. It does not, therefore, lie in his mouth to deny her capacity to sue thereon for his default, for the sole purpose of defeating an action to which he has no defense whatever. Credits for the only payments alleged to have been made have been allowed in full, and he has no pretense of set-off or counterclaim against her husband.

2. We think that the plea of usury was sustained by the plaintiff's own evidence.

It appears that she intrusted $300 to her husband to be" lent to the defendant, and that the rate of interest obtained was the highest that could be lawfully contracted for in the District of Columbia. Comp. Stat. D. C., p. 283. In addi-> tion to this, he contracted for a bonus of $50, to be paid by the defendant for obtaining the loan. Now, had he received this bonus in cash, or taken a separate obligation therefor payable to himself, and had received for the plaintiff a note for $300 only and delivered the same to her without her knowledge or approval of the exaction for his own exclusive benefit, her right to recover both the principal and interest of her note would not be impaired. Call v. Palmer, 116 U, S. 98, 102.

Opinion of the Court.

[18 App. Instead of conducting the affair in the manner aforesaid, he included the bonus in the note with the knowledge and consent of the plaintiff, who promised to pay him the same out of the proceeds of the note when collected. The doctrine established by the weight of authority is this: The note or obligation is affected with usury if the principal makes the loan, knowing that his agent has exacted a bonus or commission, though for his own sole benefit, which, with the interest payable to the principal, would amount to more than the rate permitted by law. 27 A. & E. Encyc. Law, 1006, 1007, and cases cited. See also Fowler v. Eq. Trust Co., 141 U. S. 384, 405.

Under the statute regulating interest and punishing usury, and the rule that prescribes the running of the legal rate after maturity, all that the plaintiff was entitled to recover was the principal sum of $300, with interest at the legal rate after the termination of the contract rate, less the credits which she had admitted. Comp. Stat. D. C., p. 283, Sec. 3.

As the judgment follows the verdict, which separates the findings for principal and interest as aforesaid, there is no occasion for reversing it and remanding the case for a new trial, provided the appellee will remit the interest as contracted for from date to maturity.

The judgment will, therefore, be affirmed with costs, provided the appellee shall within ten days file with the clerk of this court a remittitur of the aforesaid part of said interest. It is so ordered.

On May 29, 1901, Mr. Prentiss for the appellant, filed a motion for a rehearing "upon the question of the effect of usury as to forfeiture of interest and amount recoverable and the question of costs, or for a reconsideration of the condition imposed upon the appellee and the modification of the same so as to require her to enter a remittitur of all the interest, with costs to the appellant." In support of this motion he cited, as to the interest: R. S. D. C., Sec. 715; Starkweather v. Prince, 1 MacA. 144; Sullivan v. Snell, 1 MacA. 585; R. S. D. C., Sees. 713 and 829; R. S. U. S., Sec. 966;

Farmers' Bank v. Dearing, 91 U. S. 29; Brown v. Marion National Bank, 169 U. S. 416; Carter v. Carusi, 112 U. S. 478; Stockham v. Munson, 28 Ill. 51; Bank v. Davis, 108 Ill. 633; Bressler v. Harris, 19 Ill. App. 430; Payne v. Waterson, 16 La. An. 239; Succession of Rhoton, 34 La. An. 893; Chaffee v. Heyner, 31 La. An. 594.

As to the costs, he contended that "Inasmuch as the judgment in the court below carried interest at 10 per cent. for six months and 6 per cent. for six years, amounting to about $125, if the appellee be required to remit the whole interest the appellant will have been substantially successful on appeal and should be allowed his costs as was done in Bressler v. Harris, supra, for the appellant could not have appealed from part only of the judgment; or the costs should be divided, as was done in Denison v. Lewis, 5 App. D. C. 328, and Ross v. Fickling, 11 App. D. C. 442.”

On June 7, 1901, the motion for a rehearing was denied, Mr. Justice SHEPARD delivering the opinion of the Court:

The motion for rehearing questions the correctness of the conclusion that only a part of the interest upon the principal sum shall be forfeited on account of usury, and asks for a further modification of the judgment rendered, in that respect. In stating that conclusion, a bare reference was made to the statutes in force in the District regulating the receipt of interest upon and without contract and the practice of assessing the same in an action, as inducing the view that the interest forfeited for usury in the contract was that only to which the contract expressly applied and not that which the law gives in the absence, or upon the expiration, of the contract. However, the question was carefully considered though not discussed in the opinion.

The earnestness and force of the argument and the citation of authority, though not sufficient to cause us to change our conclusion, require a statement of the reasons therefor. Section 713, R. S. D. C., imposes the rate of 6 per cent. interest per annum upon the loan or forbearance of any