The opinion of the Court was delivered by
Gordon, J.This was an application on part of the appellants to the Court below to open a judgment now standing on the dockets of Tioga County against them, in which I). T. Billings is the legal, and F. G. Hall, the use plaintiff. The case was disposed of on the affidavits of W. C. Wood and H. T. Billings. By these it appears there was included in the judgment some $444.18 of interest beyond the legal rate. Billings, however, avers that when the original note, of which the present one is a renewal, became due, he applied *261to the defendants for payment, and that they, not being able to pay, and he being in want of money, agreed that on his giving them an extension they would pay him interest at the rate of not less than 10 per cent., and more, if he had to pay more for money for his own use; that in consequence of this arrangement he granted the extension and borrowed money for his own use at a rate even greater than 10 per cent., and that subsequently a new judgment was taken which included the old one, previous payments being first deducted with the addition of 10 per cent, interest. Under this statement the learned judge of the Court below thought that as Billings had paid to the person or persons from whom he borrowed the money to supply that which the defendants ought to have paid, the whole amount of the interest which was included in the judgment, it would be inequitable to permit the defendants to avoid a contract made at their own instance and for their own benefit, and therefore refused their motion.
We confess this presents a very fair and reasonable account of the transaction between these parties, but then the fact remains that $444.18 of this judgment is confessedly usurious, and under the provisions of the first section of the act of May 28th, 1852, this amount the defendants cannot be compelled to pay. The plaintiff’s affidavit does but explain why the usurious interest was included in the judgment, but this explanation does not relieve the contract from the inhibition of the statute.
Confining our attention, as we must, to the transaction itself, we discover just this: that if the defendants are compelled to pay the full face of this judgment they must pay an .amount of interest which is 4 per cent, in excess of the legal rate, and how can the force of this fact be averted by the allegation that Billings had, in order to accommodate the defendants, to pay to some other person 10 per cent, for an equivalent loan ? And if he paid to another what he might have refused to pay, does that furnish a reason for compelling the defendants to pay what they may lawfully refuse to pay ?
The serious defects in the argument of the appellees is that it would allow the lender to recover usurious interest whenever it appeared that the money loaned had been borrowed at illegal rates, or when the creditor, in order to accommodate his debtor in the way of time, has contracted such loan in order to meet his own necessities. In other words, usury is made to condone usury, — similia similibus ourantur. We need hardly say that the statute cannot be avoided by any such method; the intent is too obvious, *262and were it permitted the statute might as well he repealed.
The order of the Court below, discharging the rule to open the judgment, is reversed and set aside, and a procedendo is awarded.