after stating the case: We are of the opinion that there was error in the ruling of the court. The question being, whether there was any evidence to be submitted to the jury, it is not necessary that we should set out the testimony of the defendant, which tends to contradict that of the plaintiffs, for if there is any evidence to support the plaintiffs’ case, they are entitled to have it submitted to the jury, and as the court directed a verdict against them, the plaintiffs are entitled'to have us consider it in the most favorable view' for them. It is like a nonsuit in this respect, and we have frequently said so *206in such cases. Brittain v. Westhall, 135 N. C., 492; Freeman v. Brown, 151 N. C., 111; Cotton v. R. R., 149 N. C., 227; Deppe v. R. R., 152 N. C., 79; Dail v. Taylor, 151 N. C., 289; Hamilton v. Lumber Co., 156 N. C., 519.
It will be seen from our recital of the material parts-of the testimony that there is ample proof of the fact that the defendant uttered the slanderous and defamatory words imputed to him. As the accusation he made, that plaintiff, H. L. Beck, had embezzled lumber or money, was equivalent to charging him with the commission of a felony) or an infamous offense punishable by imprisonment in the penitentiary, “as in cases of larceny” (Revisal, sec. 3406), the burden is cast upon the defendant to prove the truth of the charge, or any matter in justification or mitigation. Osborn v. Leach, 135 N. C., 628; Ramsey v. Cheek, 109 N. C., 270; Harris v. Terry, 98 N. C., 131; McKee v. Wilson, 87 N. C., 300. Malice, which is an essential element of slander, i§, generally speaking, presumed where the words are actionable per se, until the contrary is proved, except in those cases where the occasion is privileged or prima facie excuses the publication. This presumption, however, may be rebutted. Newell on Slander and Libel (2 Ed.), p. 39 (5) and 319, sec. 12,'and cases svipra. The question, therefore, whether the defendant maliciously uttered the slanderous words, and further, whether he was justified or excused in doing so, were clearly for the consideration of the jury, with the burden shifted to the defendant, if he did utter the words, to prove that they were true, or if not true, then to show matters in excuse or justification. There was sufficient evidence in this case to carry it to the jury and -to place the burden of showing all defensive matter, including the truth of the accusation, upon defendant, because plaintiff had offered evidence that the charge was made in unambiguous and explicit terms, and that it was false. It involved, of course, the imputation of an infamous crime.
Coming to the account, as the matter is now before us on an appeal from a final judgment, we find that the main exception relates to the ruling of the court upon the question of usury. Plaintiffs made to J. L. Armfield on 16 May, 1906, their note for $5,500, secured by a mortgage on the property of the part*207nership, which was duly executed by them and their wives. It appears that they only received $4,500, and, as they alleged, the balance, or $1,000, was usurious interest. While the referee did not find explicitly that the $1,000 was illegal interest, he did find that the plaintiffs came to a settlement with the defendant, or the defendant with them, and the negotiations resulted in an agreement of compromise, which was reduced to writing and the substance of which is that J. L. Armfield agreed to pay and the plaintiffs to receive the sum of $600, and the latter, in consideration of the said sum, released Armfield from any and all liability for and on account of the said usurious transaction, and it is so denominated in the release, being called by circumlocution “all amounts paid in excess of the legal rate of interest for any and all money heretofore loaned to (plaintiffs) by J. L. Armfield,” and “the said excess being $600, and the payment of the same, it is agreed, shall be in full settlement of all liability therefor and of any and all causes of action which can arise therefrom.” This was undoubtedly an admission of the defendant that the transaction in which he took the note for $5,500 was tainted with usury, and that he was in danger of losing, not only his legal interest on the note, but double the amount of interest which had been paid to him by his debtors. He, therefore,, very prudently and wisely set about to make terms with the plaintiffs, and to relieve himself of this statutory liability, by paying $600 in compromise and adjustment of the whole amount that might have been exacted. “The statutes of usury being enacted for the benefit of the borrower, he is at liberty to waive his right to claim such benefit and pay his usurious debt, if he sees fit to do so. -It is, therefore, held that when the debtor becomes a party to a general settlement of preceding usurious transactions, made fairly and without circumstances of imposition, his recognition of the amount agreed to be due as a new obligation will preclude his setting up the old usury in defense of the new debt. This rule is not held to apply, however, unless it is clear that the debtor has fully accepted the settlement as a just debt separate and distinct from the preceding usurious obligations.” 39 Cyc., p. 1024. The $600 thus paid to the plaintiffs became their money, and was in no way involved in *208tbe account. Its payment in final settlement of tbe usurious transaction simply purged it of tbe taint, or eliminated tbe usurious feature, and reduced tbe principal to $4,500. Tbat was tbe new principal and bore legal interest. If it be treated as a voluntary payment of money with full knowledge of tbe facts, wbicb of course be bad, it could not be recovered by direct action, or by way of set-off or counterclaim, there being no fraud, duress, or other equitable element in tbe transaction. 30 Cyc., 1298. Tbe referee charged tbe plaintiffs, in tbe account between them and J. L. Armfield, not only with tbe note for $4,500, but also with tbe amount of $600, wbicb bad been received in settlement of tbe usury. This was error, and tbe mere fact tbat be bad debited tbe plaintiff only with $4,500, deducting tbe illegal interest of $1,000 from tbe original principal of tbe note, did not warrant tbe charge. Tbe settlement required this reduction of tbe principal to $4,500, and tbe $600, wbicb was tbe consideration of it and tbe release of all causes of action for tbe usury, belonged necessarily to tbe plaintiffs. Tbe judge sustained plaintiff’s exception No. 9 (intended, probably for 8) and No. 13, and directed tbe $200 to be deducted from the amount, $1,314.80, found to be due tbe Bank of Tbomasville, with an allowance for interest. He also allowed a credit for tbe item of $575 claimed by tbe plaintiffs, and tbe one for $130 and interest, it being tbe $200 due for lumber, less $70 paid by defendant for freight charges. Tbe judge, in passing upon tbe referee’s report, found tbat tbe plaintiffs were indebted to the bank in tbe sum of $1,314.80, less tbe $200 credit and interest from 1 August, 1910, until paid, and.so adjudged! He then found tbat plaintiffs were indebted to J. L. Armfield in tbe sum of $6,738.75, less tbe two credits of $575, with interest from 1 January, 1908, and $130 and interest from 1 August, 1910, and so adjudged. Tbe last judgment was erroneous, as it includes tbe sum of $600, wbicb was improperly charged to tbe plaintiffs, as we have already shown. Tbe said judgment, tbe one in favor of J, L. Armfield, will be reformed so as to strike out tbe said charge and all interest therein, and tbe account 'will be restated, and tbe net balance due by plaintiffs to J. L. Armfield will be ascertained, upon tbe basis of our *209ruling that defendant is not entitled to credit for tbe $600. In all other respects, the judgment of the court upon the report of the referee is approved, the remaining exceptions of the plaintiffs being, in our opinion, without merit. The credits allowed by the judge to the plaintiffs and interest will, of course, be deducted as ordered by him.
The clear result is that the account must be amended so as to conform to our opinion, and judgment entered accordingly, executions to issue thereon, and a new trial is ordered of the issues raised by the pleadings as to the- slander or defamation of character. The court, no doubt, will permit the plaintiffs to amend their complaint, if so advised, so as to agree more closely with the evidence they have adduced.