Agnew v. McElhare

Supreme Court of Pennsylvania

Agnew v. McElhare

18 Pa. 484, 1852 Pa. LEXIS 81

DecidedJune 17, 1852

StatusPublished

This text of 18 Pa. 484 (Agnew v. McElhare) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Agnew v. McElhare, 18 Pa. 484, 1852 Pa. LEXIS 81 (Pa. 1852).

Pincite

Opinion

The opinion of the Court was delivered, by

Lowrie, J.

The loan in this case was to John Poe, and it was secured by bond and mortgage, and after this the land was sold to Maria McElhare, charged with the mortgage, and the usurious interest accrued after her purchase, and was paid by her. The [487]*487defendant below therefore objected, that the evidence did not sustain the declaration, which averred a forbearance to John Poe.

It would hardly be consistent with candor to encourage a refinement of this sort as a means of evading the penalty of an Act of Assembly. The contract was with John Poe, and it was proper to aver a forbearance to him, though in fact by an arrangement of his another person was to satisfy the bond and mortgage, and had agreed to do so.

The offence is complete when more than legal interest is received “for the loan or use of money,” or “for the forbearance” of it, on “any bond or contract,” and the declaration states the case truly in form and substance, when it avers a forbearance to the obligor in the bond, for he alone could be sued upon it. It would not state it truly if it averred forbearance to Maria McElhare, though her land is liable for the debt. Besides this, the averment , of forbearance is only one form of averring that Poe had the loan and use of the money, which could not be averred of Maria McElhare, for she borrowed nothing from the defendant, and was indebted to him only indirectly.

We discover no error in any part of the record.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the Court was delivered, by

Lowrie, J.

The loan in this case was to John Poe, and it was secured by bond and mortgage, and after this the land was sold to Maria McElhare, charged with the mortgage, and the usurious interest accrued after her purchase, and was paid by her. The [487]*487defendant below therefore objected, that the evidence did not sustain the declaration, which averred a forbearance to John Poe.

It would hardly be consistent with candor to encourage a refinement of this sort as a means of evading the penalty of an Act of Assembly. The contract was with John Poe, and it was proper to aver a forbearance to him, though in fact by an arrangement of his another person was to satisfy the bond and mortgage, and had agreed to do so.

The offence is complete when more than legal interest is received “for the loan or use of money,” or “for the forbearance” of it, on “any bond or contract,” and the declaration states the case truly in form and substance, when it avers a forbearance to the obligor in the bond, for he alone could be sued upon it. It would not state it truly if it averred forbearance to Maria McElhare, though her land is liable for the debt. Besides this, the averment , of forbearance is only one form of averring that Poe had the loan and use of the money, which could not be averred of Maria McElhare, for she borrowed nothing from the defendant, and was indebted to him only indirectly.

We discover no error in any part of the record.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

18 Pa. 484, 1852 Pa. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agnew-v-mcelhare-pa-1852.