7 Sadler 413 | Pa. | 1887
Opinion by
The assignments of error in this case raise but the one question whether the direction to deduct the usury paid on the $3,500 note was correct. It is not proposed by the defendants that the usury upon that note shall be deducted from the notes in suit; and therefore the question is not precisely the same as that presented in the cases cited in the argument
But the $3,500 note does not belong to the plaintiff; at least there is no legal identity of the plaintiff with the ostensible owners of that note. How then can the rights of such owners be determined in the present action to which they are not parties ? How can we know that they may not have some reply to the defense of usury against their note ? They are not in court, they cannot be heard, and of course their rights cannot be determined. The defendants cannot be prejudiced, because their right to defend upon the ground of usury is always available to them, whenever any action shall be brought upon the $3,500 note. But for the purposes of the present case we must be bound to regard that
All our' recent decisions are to the-point that* a defense of usury against one obligation cannot be setup against-an action upon an entirely- distinct and independent -obligation, even ifiiit be between the same1-parties,-much less-can it be done-where the parties are not the-same; -. Bright v.-Mountain City.Bkg.--Co.«;3 Pennyp; 478-; Maher’s-Appealy 91 Pá. -516 ; Second-Nat. BanM7s Appeal,"85 Pa.-538 ;• Lennig?s Appeal,-.93 Pa. 301.
The assignments of error are sustained.
Judgment reversed, and new venire ■ awarded.
