
    William Glading v. Dillerhe P. Cubberly and others.
    Where usury was set up in the ordinary form appropriate to pleading usury taken in this state, and it appeared that the agreement was not made in this state, and it also appeared that a premium had been taken for the loan of the money and a further premium for further forbearance,—Held, that unless the complainant would deduct the - premiums and all interest received thereon, the defendant should have leave to amend his answer so as to set up the taking of the premiums.
    Bill to foreclose. On final hearing on pleadings and proofs.
    
      Mr. F. Voorhees, for complainant.
    
      Mr. B. JD. Shreve, for Cubberly and wife.
   The Chancellor.

This suit is brought to foreclose a mortgage for $13,000 and interest, given by Dillerhe P. Cubberly and wife to the complainant, dated September 29th, 1870, and payable in three years from its date, on land situate at Edgewater, in Burlington county.

The answer of Cubberly and his wife sets up usury, alleging that the usury was taken contrary to the laws of this state. It appears that when the mortgage was given, Cubberly received from the complainant only $12,400, the complainant retaining, pursuant to an agreement between them, $600 for premium for the loan. It also appears that in 1873 Cubberly paid to the complainant $200 more as a premium, for further forbearance for three years from the maturity of the mortgage, September 29th, 1873. The proof is clear that the contract for the loan and the contract for further forbearance were both made in Pennsylvania.

The answer is not sustained. I am not satisfied, however, to give to the complainant the benefit of the premiums which he has received, and unless he is willing to take a decree for the amount of the mortgage, after making proper deductions for the premiums, I will allow the defendants, Cubberly and wife, to amend their answer so as to set up the fact that the taking of such premiums was contrary to the law of Pennsylvania.  