Miller v. Irwin , 1878 Pa. LEXIS 254 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

In the supplemental affidavit of defence, it was alleged in specific terms that the loan for the amount of which the note in suit was given, had been carried along by David Davis, the father of the defendant, for two years, at ten per cent, interest. The note signed by her was the renewal of one which appears to have been the last of a series given by the father for the purchase-money of stock of The United Savings Bank. The whole series of notes applied to and secured the same debt. The cases collected in Campbell v. Sloan, 12 P. F. Smith 481, unite in deciding with unmistakable emphasis that the taint of usury cannot be eradicated by the substitution of one security or one set of securities for another, so long as the original debt survives. The excess of interest for four months only was abated at the entry of the judgment. The defendant had the right to set up the excess of interest paid by her father against the plaintiff’s claim.

Suggestions are contained in the affidavits which were urged on the argument as amounting to allegations of fraud in the procurement of the defendant’s signature to the note. While the use of indirect means by the officers of the bank may be understood to be charged, the facts are stated so vaguely that it would be premature now to discuss any questions to which they may possibly give rise. These questions can be developed in a trial in the Common Pleas, for the purposes of which the record is sent back.

Judgment reversed, and a procedendo awarded.