Page:Federal Reporter, 1st Series, Volume 6.djvu/824

 812 FEDERAL REPORTER. �rule rests, and its application to sureties to whom no injury bas resulted, might not, at this day, bear the test of justice and common sense; but it is a doctrine too long sanctioned to be questioned in the courts. I cannot regard Swire v. Eed- man as resting upon reasons that ought to control this case. �The other question is as to the validity of the agreement to forbear, viz. : whether the payment of usurious interest con- stitutes a valuable consideration to uphold the agreement of plaintiff to give time. It is claimed that the $15 paid for the extension of time was interest for the use of the money represented by the note, and was so mach in excess of the highest rate allowed by law. Treating it as a sum paid for forbearance, it is interest. In Michigan, -whenever parties 60 agree, 10 per cent, is collectible; there is no positive pro- hibition against taking a higher rate, and a higher rate paid cannot be recovered back from the creditor, The statute proyides that no contract whereby a greater rate of interest is directly or indirectly reserved or, received than is allowed by law, shall thereby be rendered yoid; but in an actiQn to xecover upon sueh usurious contract, theplaintiff, subject to certain exceptions, shall have judgment for the principal and legal interest onlj, exclusive of the usury. The courts are nearly uniform in their judgments that a promise to pay usurious interest will not uphold an agreement to forbear, because the promise cannot be enforced, though it was held otherwise in Wheat v. Kendall, 6 N. H. 604. But when the usurious sum has been paid, l^arned judges differ whether there is a consideration to uphold the agreement or not. �In New York and Vermont the statute declares contracts tainted with usury to be void ; and if usury has been paid, it can be recovered back, with a penalty against the taker. In the former state it was held by two judges, without dissent from the other two, that payment of usury does not afford a consideratiouM Vilas v. Jones, 1 N. Y. 274. �In Vermont, on the other hand, a united court has repeat- edly held the other way. Turrill v. Boynton, 23 Vt. 142; Burgess v. Dewey, 33 Vt. 618. In South Carolina and Mis- souri such contracts are not void by statute, and in both it ��� �