Montague v. Read
17 A. 621
Pa.
1889
Check Treatment

Opinion,

Mr. Chief Justice Paxson:

This was an appeal from the order of the court below refusing to open two judgments, in each of which the appellant was defendant. The judgments had been satisfied of record by the plaintiff therein. The appellant alleges that the satisfaction was entered for the purpose of depriving him of the defence of usury; that he had given the plaintiff a new obligation for the money; that the transaction was usurious in its origin, and that a portion of the usury was contained in the satisfied judgments. The defendant moved the court below to strike off the entry of satisfaction and open the judgments, in order that he might set up the defence of usury. The rule granted for this purpose was discharged by the court below.

In Montague v. McDowell. 99 Pa. 265, it was held that where judgment is entered upon a judgment note, including usurious interest, and some time afterwards a new judgment note is given in settlement of the former judgment, which is thereupon marked satisfied, the defendant cannot, upon the judgment upon the new note being opened, set up as a defence pro tanto, the usurious interest included in the former judgment. In delivering the opinion of the court in that case, an intimation was given by our late brother Sharswood, that if the satisfying of the old and the giving of the new judgment had been simultaneous, or nearly so, the court might have considered it a mere device fraudulently to conclude the debtor, and on that ground have struck off the satisfaction and opened both judgments. These applications to the court below were probably the result of the intimation above referred to.

We are not called upon now to affirm or disaffirm the dictum of Justice Sharswood. The learned judge below decided these eases upon other grounds. This appears from the following extract from his opinion : “ In this ease, the evidence shows that the defendant has only an indefinite and imperfect understanding of the transaction resulting in the satisfaction *420of these judgments, while the testimony on the other side is clear and distinct that they were satisfied at the request and for the accommodation of the defendant. The conclusion is, therefore, inevitable that they were not satisfied through accident or mistake, or in furtherance of a design to bar usury.” This ruling is abundantly sustained by the evidence. Hence, it is unnecessary to refer to Campbell v. Sloan, 62 Pa. 481, and that line of cases, which treat of devices to evade the usury laws. The court below has disposed of these cases upon their merits, and we are not prepared to say its discretion was not properly exercised.

The decree is affirmed in each case, and the appeal dismissed at the costs of the appellant.