
    David Miles v. Neal M’Lellan.
    Forbearance to sue for a certain time is a sufficient consideration for a new promise by the debtor, and for the nonperformance of which, assumpsit may be maintained, 
    
    When money has been paid for forbearance, it cannot be recovered back by the party paying, nor be the legal subject of a discount.
    This was a summary process, tried at Marion, Fall Term, 1819, to recover the sum of fifty dollars, due by note. The handwriting of defendant was proved. Defence, usury; and a discount.
    The following facts were proven on the trial, viz.: That at the time the note was given, it was agreed between the parties that the' plaintiff should lend the defendant the sum called for by the note, and that for the use of the money *1 qai fr°m March, the date of the *note, to October following, the plaintiff 'id4J to have the use of a horse belonging to the defendant, to work his crop. That the horse was worth from seventy to eighty dollars, and was a good work horse. That the price given for work horses of this description was from four to five dollars per month. It was further shown, that_the note remained unpaid some time after the horse was returned ; and that, in the spring ensuing, the defendant, to prevent being pressed, agreed to pay, for forbearance merely, the sum often dollars, which exceeded the legal rate of interest.
    Upon this evidence, it was insisted for the defendant, that the case was brought within the statute against usury. That the value of the horse, for the time he was used by the plaintiff, far exceeded the legal rate of interest on the sum loaned ; and tiie money paid for forbearance was also relied upon as proof that the plaintiff had acted usuriously.
    It was further inisisted, that, admitting the evidence did not bring the case within the statute against usury, still the defendant was entitled to a discount from the note, on account of the services of the horse, and the money paid.
    Mr. Justice G-antt, who presided, decreed for the plaintiff on both points, and the defendant appealed on the following grounds:—
    1. That the contract was usurious in the beginning, inasmuch as it was shown by the defendant that the plaintiff was to be allowed the services of a horse, which was worth more than the interest of the money.
    2. That the contract was, in other respects, usurious, and the note, on which the action was brought, was void in law, inasmuch as the plaintiff received from the defendant ten dollars, exclusively for further indulgence.
    3. That if the contract was not usurious, a discount ought to have been allowed for the services of the horse and the sum paid.
    4. That the decree was, in other respects, against law and evidence.
    
      
      
        Elting v. Vanderlyn, 4 John. Rep. 237. R.
    
   "135] *The opinion of the Court was delivered by

Gantt, J.

On the first ground taken in the brief respecting the use of the horse, it is to be observed, that there was some evidence in the trial below, which went to show that the defendant was scarce of corn at the time, the article itself difficult to be procured, and at a high rate. Under such circumstances the taking of the horse by the plaintiff, to be fed throughout the summer, for his work, might have been a convenience to the defendant himself. At any rate it left the case very doubtful, whether the accruing interest on the note and the support of the horse, at such a time, might not be considered as the value of his services.

On the second ground in the brief, there can be no question but that forbearance to sue for a certain time is a sufficient consideration for a new promise by the debtor, and for the non-performance of which an action of assumpsit may be maintained. Where money is paid down, as in this case, for forbearance, it would follow, that, as the consideration is good in law, it could not be recovered back by the party paying it, or be the subject of a legal discount. There are cases, indeed, which go to show, that to constitute forbearance a good consideration, such forbearance must be for a reasonable time ; (1 Roll. Abr. 34 ;) and that forbearance for a little time, (1 Roll. Abr. 23,) or some time, is not sufficient. As the ten dollars taken in this case, exceeded considerably the rate of legal interest for the time of forbearance, the not falling strictly within the meaning of the words, “a little or some time,” it was with reluctance that the presiding judge felt himself restricted in the exercise of a feeling which would have l.ed him, but for the principles of law, to discount from the amount of the note, the excess of interest.

Mayrant, for the motion. Ervin, contra.

The third ground, in relation to the services of the horse, has been commented upon in the observations made upon the first; and the fourth and the last, is too general to admit of comment.

The Court are of opinion that the decree below was *Iegal, and that the defendant can take nothing by his motion ; in which opinion L 1 _ the Court are unanimous.

Colcock, Johnson-, RichaRDSon, and Nott, JJ., concurred. 
      
       2 Rick. 113.
     
      
       5 Rich. 53.
     