The opinion of the court was delivered by
Lowrie, J.This is a cruel bargain, if it is to be enforced as the plaintiff below understands it; for the defendant really borrowed only $1418, and paid on it in something like monthly instalments for about six years the sum of $1369.50, and yet, at the end of that time, he finds himself about $1100 in debt. This result is produced by treating the transaction as a loan of $1800, at interest, and allowing no interest or diminution of the interest, on account of the payments.
We have never had a case like this before, though such cases are not unknown in England: 6 Bing. N. C. 180; 3 Eng. L. & Eq. Rep. 152; 15 Id. 477. There such a contract was enforced at law, and in equity as a security for the payment of the monthly contributions to the association.
In the present case the defendant has been treated as having forfeited his membership by default in paying his contributions, and has been required to stand to his bond of $1800 as a loan, after allowing his paid contributions and his payments of interest as a credit thereon. The bond has not been used for its legitimate purpose of enforcing the contributions of the defendant as a member, because the association has abandoned that purpose, and elected its alternative by depriving the defendant of his membership, and of all the profits of their seven or eight years’ business. We are therefore prohibited from considering this as a case of composition by anticipation of the defendant’s future share of the common property, and must treat it as a mere loan; for such is its form, so the parties have treated it, and as such alone, since the forfeiture of the defendant’s membership, can it be enforced.
As a loan it amounts to $1418, the sum actually advanced, and we do not see how we can enforce the bond for more than this. There is no reason why mere voluntary money associations should be allowed to charge their members any more than strangers with usurious interest; or why they, any more than banks, should be *271allowed thus to charge their members. The Act of 8th May, 1855, does not retroact on this case. It has a valuable influence in removing doubts, unfounded, perhaps, as to the validity of such a transaction, when it is sought to be enforced in its true spirit, as a means of enforcing the payment of the contributions of the members, whose shares have been advanced, until the time for distribution of the society’s effects shall arrive.
These views require that the amount due shall be calculated as on a loan, not of $1800, but of $1418, and the bill of exceptions furnishes the materials for making the correction.
Judgment. — This cause came on to.be heard at the last term of this court at Philadelphia, on a writ of error to the judgment of the District Court of Philadelphia, and was argued by counsel, and thereupon it is considered that there was error in the instruction given to the jury, which occasioned an overcharge of five hundred and forty-two dollars ($542) against the defendant, and the said judgment of the said District Court is therefore reversed, and it is now here considered that the plaintiff recover of and from the defendant the sum of five hundred and seventy-seven dollars ($577,) with interest, from 23d May, 1855, and costs, and the record is remitted for execution.