
    NOVEMBER TERM, 1844.
    Stern Simmons, et al. v. The Mississippi Union Bank.
    
      The Mississippi Union Bank sued on a promissory note, the suit was dismissed upon the defendants’ paying two and a half per cent commissions on the amount renewed, as a fee to the attorney of the bank, and the costs of suit, and the defendants were permitted to renew the note; held, that the two and a half per cent commissions and costs were not exacted as a condition of the loan, and did not therefore aifect the loan with the taint of usury.
    Error from the Circuit Court of Yaiabusba county.
    The facts áre fully stated in the argument of counsel and the opinion of the Court, except that the defendants entered a motion for a new, trial, which the Court overruled ; to .which judgment, overruling said motion, they excepted.
    C. Scott, for defendant in error.
    This was an action of assumpsit, founded upon a .promissory note, executed by plaintiffs in error to the Mississippi Union Bank. The defence relied upon in the Court below was usury ; to prove which, the following facts, set out in the bill of exceptions, were admitted in. evidence : That the note sued upon in this case had been previously put in suit, and was afterwards renewed ; tljiat the plaintiffs in error paid to the attorney of the bank two and a half per cent commissions upon the amount renewed, as a fee. It was also proved, by one witness, that it was the custom and usage of the bank, to require, in all cases where notes were in suit and renewed, the defendants to pay two and a half per cent commissions upon the amount of the1 renewed note, to the attorney of the bank. This was all the evidence offered by the plaintiffs in error. The Court was requested to instruct the jury that the above facts constituted usury ; which charge the Court refused to give.
    The Court did not err in refusing the instruction ; and it is deemed unnecessary to cite authorities to show that the judgment below ought to be affirmed.
   Mr. Justice Thachee.

delivered the opinion of the Court.

This was writ of error from -Yalabusha county Circuit Court.-

The promissory note, upon which this action was founded in the Court below, was made in favor of the Mississippi Union Bank, as a renewal of a promissory note upon which suit had been instituted by the said bank, and afterwards dismissed. It was proved to have been the practice of the bank to require of its debtors upon promissory notes the payment of two and one half per cent commissions on the amount renewed, to its attorney, as a'fee, and the costs of suit, after the institution of suit, upon the dismission of such suits, and the renewal of the notes upon which such suits were instituted. This requisition is claimed by the plaintiffs in error to be an usurious and illegal exaction.

Upon looking into the evidence proving the practice of the bank above referred to, it does not seem to render the bank liable to the penalties of usury. The plaintiffs in error might have paid the original note at its maturity, and avoided the requisition of the attorney’s fees for the institution of suit. It does not appear that any portion of the per centage required was received by the bank, and the fact of its payment for the behalf of the attorney seems' clearly to indicate that it was intended as a payment in consideration of the withdrawal of the 'suit and the prevention of litigation. It must be viewed not as a payment for the loan of money, but as the consideration in a bargain to withdraw legal proceedings. It was the amount of the expenses of the suit, and not required as the condition of the loan by the bank. . It therefore does not affect the loan with the taint of usury. Planters Bank v. Snodgrass, 4 H. 573; Cutler v. How, 8 Mass. 257.

The judgment of the Court below must therefore be affirmed.  