The opinion of the Court was delivered by
Rogers, J.The act of 1705 gives liberty to mortgagees, at any time after the expiration of twelve months next ensuing the last day whereon the mortgage money ought to be paid, or other condition performed, to sue forth a scire facias. As this limitation of time is intended for the benefit of mortgagors, they may, if they choose, dispense with it; and here, the mortgagor, in the event of the non payment of the interest according to the stipulations in the deed, agreed that the mortgagee might issue the writ of scire facias immediately, to recover the principal and interest, and all costs,, charges and expenses of every kind, which the mortgagee might sustain or be put t.o, for or by reason of such default, or in recovering the interest due. Not having complied with his contract, he cannot now complain that the scire facias was prematurely issued. But it is said, that the contract is usurious and void ; but we cannot think so, as these are extra incidental charges, which arise from the failure to perform the *129contract, having nothing oppressive in their nature, and which could and ought to have been avoided by the borrower. It has been decided, that a reasonable commission, beyond legal interest, for extra incidental charges, as for agency in the remittance of bills for acceptance and payment, is not usurious. Thus a person, making claim of commission, having advanced money upon the terms of having received interest at five per cent, took bills upon Hamburg, which bills he sent there for the purpose of procuring acceptance and payment, and a remittance of the amount. The commission was charged on that transaction. Upon its being contended that this was usurious, the lord chancellor Eldon said, the first case on that point was Benson v. Parry, when the lord chief baron Eyre held, that a country broker, discounting bills payable in London, could not take a commission, but that was set right on an application to the court. That, according to the modem doctrine, is not usurious. So when a broker or agent advances money for his principal, he may lawfully take an extra sum or allowance for his trouble and attention, in addition to the legal interest on the money advanced. The contract here has nothing in it oppressive to the borrower; it is advantageous to the borrower and lender, whenmerelyintended to enforce a punctual performance of the contract; nor is there the slightest pretence to say that it is intended as a cover to usury. A failure on the part of the borrower puts nothing in the pocket of the lender; on the contrary, the probability is, he will not be reimbursed the expenses which he may incur. With such stipulations, which are frequently made, persons may borrow money at a less rate of interest, as punctuality in the payment is always taken into the calculation in fixing the terms of the loan.
But it is further objected, that the court allowed the plaintiff to recover costs and expenses without any^evidence. And this would appear to be true; for there was nothing in evidence, as is conceded, except the bond and mortgage, and of course nothing which could warrant the jury in giving damages to the plaintiff for costs and expenses. If there had been the slightest proof, we could not interfere; but where there is no testimony whatever, it is error to leave it, as a fact, to the jury, as has been repeatedly decided.
There is nothing in the first, third and fourth errors assigned.
Judgment reversed, and a venire de novo awarded.