
    SCOTT VS. MIDDLETON.
    No ingenious device of attempting to interweave other matters can relieve ifche ease of its usurious features where a sum largely in excess of six per cent, was paid as interest in pursuauoe of an agreement made at the time the money was loaned.
    Error to the Common Pleas No. 2, of Philadelphia County. No. 145 January Term, 1884.
    This was a Sci. Fa. Sur. mortgage brought by Charles Scott against Nathan Middleton and Allen Middleton, Jr. The casé was tried by a judge, without the intervention of a-jury, undei the provisions of the Act of April 22,1874. The Court found •that Condit Prudden conveyed the premises bounded by Ridge •Avenue and 11th and Noble Sts. to Nathan Middleton and Alien Middleton, subject to four mortgages. The first, dated Nov. 15, 1864, for the payment of $7,000; the second for $5,000 of same •date; the third, dated Sept. 6,1866, for $25,000, and the fourth, dated June 1st, 1867, for $15,000. These mortgages were all held by Charles Scott before Eeb. 12, 1873, and were due. At ■the time of the conveyance by Prudden the defendant executed to the plaintiff then’ bond and warrant of attorney, and mortgage upon the said premises, dated Eeb. 25, 1873. "When a transfer was made in ’73, Condit Prudden was indebted to the plaintiff, besides the said $52,000 of bonds and mortgages upon .said Prudden’s notes, and Mr. Sloanaker’s notes, with Prudden’s endorsement to the amount of about $15,000 for it. Scott, learn dng of Prudden’s condition, had pressed him for payment; Finally an agreement was reached by which N- Middleton and A. Middleton took the property of Prudden, giving their bond ■of $8,000 at 6 per cent., which was assigned by Prudden to Scott. Scott charged Middletons with interest at the rate of 12 per •cent.’ upon the $8,000, and upon the trial of the case Middletons paid the balance, after deducting the extra interest to Scott, who left it on account, and proceeded for the balance of his ’claim. 'The Court found Middletons had agreed to purchase the property ■of Prudden if Scott would not proceed upon the mortgages for a year. This Scott did, upon the payment by Middletons of interest at the rate of 12 per cent, on the mortgage of $8,000. Under this state of facts, the Court found that the agreement between the plaintiff' and defendants was an agreement on the part of’ the defendants to pay more than 6 per cent, interest, in consideration of plaintiff’s forbearance to press his claims for money due-on other debts. The decisions, are clear, that all such arrangements, however ingeniously colored, are mere evasions of the-usury laws, and will not be made effectual by the Court. The Court-thereupon entered judgment in favor of the defendants.. Scott then took a writ of error, complaining of the action of the-Court in holding that the interest paid was usurious.
    
      George M. Dallas and George Crawford, Esq. for plaintiff in error
    argued that usury is the taking of more than the fixed rateoí interest for the loan or use of money, and not for other considerations, even though called interest; Woodruff vs. Husson, 32 Barb. 559; Smith vs. Marvin, 27 N. Y. 144; Buckingham vs. McLean, 15 Howard 172; Stevenson vs. Unkefor, 14 Ill. 104. The agreement to forbear and the actual forbearance to sue and foreclose the first four bonds and mortgages of $52,000 for one year, and forbearance, thereafter, was alone a valid consideration, for the promise to pay the excess of 6 per cent, upon the $8,000-bond and mortgage in suit, and relieves the same from a charge-of usury. These bonds and mortgages were not given by these-defendants, could not be considered as their debt. Now no one-hut the borrower, or the debtor not even a purchaser of a security, subject to the debt can elect to refuse to pay ; or recover-the excess; Miners’ National Bank vs. Roseberry, 81 Penna. 312; Appeal, of Second National Bank of Titusville, 85th Penna. 532; Lennig’s Appeal, 93 Penna. 306. Forbearance to sue-another debt is a sufficient consideration to support a promise of a third person, a stranger to the debt, to pay an excess over 6-per cent, thereon, or to do any other act; Chitty on Contracts, 9 Eng. Edition, 24, 28; Addison on Contracts, 11.; Parsons om Contracts, Vol. 1, 440; Smith on Contracts, 169,170; Sidwell vs. Evans, 1 P. & W. 383; Silvis vs. Ely, 3 W. & S. 428; Caldwell vs. Heitshu, 9 W. & S. 53; Kean vs. McKinsey, 2 Penna. 31; Langdell Cases on Contracts, 270, 282, 269, 283. Contracts for the loan of money, promising to pay an illegal rate of interest,, as interest from the maturity of the loan, till paid, and not usurious as to debt, could have been avoided by prompt payment Burke vs. Robb, 4 Bradw. Ill. App. 338; Lawrence vs. Coates, 13, Ill. 578; Phila. & R. R. R. Co. vs. Stichter, 11 W. N. C. 327; Wilson vs. Dean, 10 Iowa 432; Downey vs. Beach, 78 Ill. 53; Fish vs. Otis, 3rd Pin. 75; Tyler on Usury, 204, 13 Am. Law. Reg. 325.
    
      Messrs. H. J. McCarthy and W. N. West, Esqs., contra,
    cited Hartman vs. Danner, 74 Penna. 36; Shaffer vs Clark, 90 Pa. 94; Rutherford vs. Boyer, 84 Penna. 347; Walter vs. Breisch, 86 Penna. 457.
   The Supreme Court affirmed the judgment of the Common Pleas on the 14th of April, 1884, in the following opinion:

Per Curiam.

The facts fouad clearly justified the conclusion of law at which the Court arrived. The statement of interest account shows a computation much in excess of the legal rate of interest. No ingenious device of attempting to interweave other matters can relieve the case from its usurious features. It is found as a fact that a sum largely in excess of the legal rate of interest was paid as interest on the debt secured by the. mortgage, and in pursuance of an agreement made at the time the money was loaned. There was no error in entering judgment in favor of the defendant.

Judgment affirmed.  