The opinion of the court was delivered by
Royce, J.The money that was paid by the plaintiff to Childs, and that is sought to be recovered back in this action, was not paid for the forbearance of any debt that the plaintiff owed Childs, or as interest upon any debt or claim then due from the plaintiff to Childs. The plaintiff was indebted to Edson, and Edson was indebted to Childs. The money paid by the plaintiff to Childs was under an agreement that in consideration of such payments Childs would give further time to Edson, and by so doing Edson would give further time to the plaintiff. Such a transaction has never been held by our courts to be usurious. It is neither within the letter or spirit of the statute. To constitute an usurious transaction there must generally be, first, a loan express or implied; secondly, an agreement that the money or thing loaned shall or may be returned ; thirdly, that a greater rate of interest than is allowed by law shall be paid. And where there is no loan or forbearance there can be no usury.
Judgment reversed, and judgment for the defendant.