19 Ala. 694 | Ala. | 1851
The -sole consideration for the undertaking of Mallory to pay Matlock ten :per cent-, on the amount of the execution named in the contract) was the delay in enforcing collection of said execution until after the ensuing term of the Supreme Court* lb is certain that upon the affirmance of the chancellor’s decree by the Supreme Court) no damages could haye been awarded by that court, and if such damages were thus recoverable) this agreement but superadds ten per cent, to them. Neither did the fact that Mallory neglected to give the rppeal bond within twenty days, as allowed by the court, prevent him from suing out a writ of error at any time within three years after the decree was rendered. The delay or forbearance n collecting the demand is, then) the entire consideration for .he promise here sued on; and this is shown in the declaration. That such agreement constitutes usury) we should be sorry to mtertain a doubt. Were such agreements to receive the sanc-ión of the law, the statutes against usury would be, in many '.ases, perhaps the greater number, utterly impotent to effect the ■nd proposed. It has long been settled that cases of usury are iot confined to precise loans of money, but they extend to cases vhere the relation of debtor -and ’creditor exists, and to cases of vares, merchandise, or commodities.—Drew v. Power, 1 Sch. & Lef. 191; Grimes v. Shrieve, 6 Mon. 553. And when the contract on its face shows that more than the legal rate of interest is reserved for forbearance, the declaration is demurrable; for that which appears need not be pleadéd or averred.—Dysart v. Logan, 2 J. J. Mar. 428. The charge in the case before us cannot be justified upon the idea of any risk which Matlock incurred ; for he -incurred no hazard but such as is common to forbearance in all cases.
We feel quite sure that this agreement, in legal contempla-» tion, is usurious-, and the judgment of the court upon the demurrer must be affirmed.
