Opinion of the Court, per DAVIES, J.

with, as that of Miller v. Kerr (supra). There, as here, the plaintiff asks the court to release him from his agreement, the last contract made by him with the principal debtor, upon the ground that he, knowingly and willfully, and in violation of the statute against usury, made the agreement to give the principal debtor time for the payment of his debts. He asks the court to convict him of a crime, that he may maintain his action against the principal debtor before the time has expired which he gave him by this agreement, for the payment of the debt, and that he may retain the liability of the sureties, notwithstanding such extension without their assent, on the ground that the agreement was a criminal act, illegal and void. In my opinion, the aid of the court cannot be invoked for such a purpose. Neither has the distinction alluded to by RUGGLES, Ch. J., in La Farge v. Herter, any just application to the facts of this case, namely, that although a party to a fraud is estopped from setting up, for his own advantage, the fraud, yet, if his opponent alleges and proves it, as a part of his own case, the guilty party will then be entitled to the benefit, while he incurs the disadvantage resulting from such a state of things. (Citing Broom's Legal Maxims, 322.)

In this case the defendants neither set up or proved any usurious agreement. That contained in their answer, for aught that appears thereby, was a valid and lawful agreement, and it is the plaintiff who comes in with facts, to show that it was usurious and void. If the defendants had set forth facts in their answer, and claimed that the agreement was void for usury, then the principle involved might have been relevant. Upon the facts of this case it is not.

If the case of Vilas v. Jones (1 Comst., 274) can be held as laying down a different doctrine, it must be regarded as overruled by the subsequent case of La' Farge v. Herter (5 Selden), supra. But I do not understand that any such point was decided in Vilas v. Jones. The doctrine is stated as being the opinions of BRONSON, J., and JEWETT, Ch. J., that an agreement made by a creditor with the principal debtor, to forbear the payment of the debt in consideration of an usurious premium paid for such forbearance, is void,

Opinion, per DAVIS, J., dissenting.

and therefore cannot operate to discharge the action. Two authorities only are referred to by Judge BRONSON, one of which (Tudor v. Goodhue, 1 B. Mon. L. and Eq. R., 322) held that an agreement by the creditor to extend the time for payment on a promise to pay an usurious rate of interest for the forbearance, did not discharge the surety for the reason that as the promise of the debtor to pay the usury was void, there was no consideration for the promise of the creditor to forbear, and consequently no binding contract on his part for time. The other case, that of Kenningham v. Bedford (id., 325), was a later case, and identical in principle with that now under consideration. There, as here, the usury was paid at the time the creditor promised to forbear, and the court held that the surety was discharged; that although the contract was void as to the debtor, it was valid as to the creditor, and if he should sue before the expiration of the stipulated forbearance, the other party might have an action for damages. This decision is in harmony with the principles of La Farge v. Herter, and the other cases in our courts already adverted to.

I am satisfied that it expresses correctly the law, and it follows that the judgment appealed from should be affirmed with costs.

BROWN, PORTER and POTTER, JJ., and DENIO, Ch. J., concurred in this opinion.

DAVIS, J., dissenting. This action is on a promissory note. The only defense set up is that the action is prematurely brought. On the trial it was shown that after the note in suit fell due, it was agreed between the plaintiff and the defendant, James Wagoner, who was the principal in the note, that the time for the payment of the note should be extended on payment to said plaintiff of property of the value of $13, as the consideration for such extension; which payment was afterward made and received. The action was brought before the expiration of the extended time. The only question in the case is, whether the plaintiff can treat the agreement of extension as void, under the statute against

Opinion, per DAVIS, J., dissenting.

usury. The courts below held that he could not, and that if the defendants chose to affirm and insist upon the usurious agreement, the party who had received the usury was bound by it.

In La Farge v. Herter and Dillenbeck (9 N. Y., 241), the action was debt on a judgment against Herter as principal, and Dillenbeck as surety. It was shown that after execution and levy on Herter's goods sufficient to have satisfied the judgment, Herter gave to La Farge a bond and mortgage, which were taken by the latter in satisfaction and discharge. of the judgment. The levy was abandoned, and a receipt given by La Farge to Herter for the amount due on execution, and the attorney indorsed the same satisfied. The plaintiff offered to show in answer to this defense, that the mortgage was usurious; the court excluded the evidence, and this court affirmed the judgment of the Supreme Court, thus establishing that a usurer is not allowed to show that an obligation which he has taken as satisfaction of a prior demand is usurious, in order to avoid the effect of such obligation as a satisfaction of such prior demand. The opinion of this court was pronounced by RUGGLES, Ch. J., and no allusion was made to a former case in this court, to which reference is hereinafter made. It is to be observed that the contract in La Farge v. Herter was completely executed. Nothing remained to be done by either party for its consummation, and the action of the defendants in affirming the bond and mortgage as a payment of the judgment, in no sense called upon the court to enforce an agreement not yet fully performed in all its parts.

In Vilas v. Jones (1 Comst., 274), one of the points made was that the complainants, who were sureties in the original debt, were discharged, by the creditor giving further day of payment to their principal without their knowledge or consent. The case was disposed of by this court on points foreign to the question now under consideration; but three very eminent members of the court, JEWETT, Ch. J., BRONSON, and GARDINER, JJ., concurred in the position that neither the promise nor the payment of usury is a good considera

Opinion, per DAVIS, J., dissenting.

"It has

tion for a promise by the creditor to give time. not been suggested," said BRONSON, J., "that a promise to pay usury in future, an engagement that is utterly void, can be regarded as any consideration whatever for a promise by the creditor to extend the time of payment. And undoubtedly he may sue the next moment. And I am wholly unable to see how usury paid down can make the case any better. The contract for usury is equally void whether the money is actually paid, or only promised to be paid at a future day. The statute makes no distinction, but, on the contrary, has declared void all contracts tainted with usury. Though the debtor parts with the money, it still belongs to him; and he may sue and recover it back the next moment. (1 R. S., 772, 83.) This shows that there is no force in the suggestion, that although the creditor cannot legally receive, the debtor is not forbidden by law to give money at a usurious rate for the forbearance."

And JEWETT, Ch. J., said: "It is conceded that an agreement to extend the time of payment in consideration of an executory agreement to pay a usurious premium is void, and does not suspend the remedy of the creditor against the principal debtor. But the distinction between that case and the case where the agreement is executed on the part of the debtor by an actual payment of the usurious premium, rests upon no solid foundation. In either case the statute declares the contract void, and the debtor can recover back the money so paid by action." But that case determined nothing upon this point, and is entitled to no greater weight than should be given to the opinions of eminent jurists upon questions not necessarily adjudicated by the final decision of the cause, in which their opinions were expressed.

Nor, in my opinion, can it be claimed that La Farge v. Herter (ubi supra) has determined the question now presented. It is, so far as this court is concerned, res nova, and should be treated as such.

Amid some apparent conflict there is yet a clear line of distinction between La Farge v. Herter and the question discussed in Vilas v. Jones. In the former, as has already

Opinion, per DAVIS, J., dissenting.

been seen, the agreement had been completely executed in all its parts, and by all parties. In the latter the agreement was regarded as executed by one party who had paid the consideration for performance in future by the other. The question in the case now before us is of the latter class. An agreement for an extension of the time of payment of a debt past due, is simply an agreement to refrain from enforcing it during the stipulated period; during that time the contract on the part of the creditor is executory and continuous. It is, in the nature of things, neither executed nor capable of execution till the full lapse of the stipulated time, so far as the creditor is concerned, while by the payment of the consideration it may be fully executed by the debtor. After it is completely executed by both parties, I apprehend such an agreement must necessarily fall within the rule of La Farge v. Herter, and the usurer could not be permitted to allege the nullity of the agreement for the purpose of reinstating himself to any right he had lost by it, either against a principal debtor or a surety. But to my mind there is a clear distinction between leaving a usurer in the position in which his executed agreement places him, and enforcing the performance by him of a usurious agreement yet executory on his part. When asked to execute or stand by such an agree-. ment yet to be performed, I do not see why, on any sound principle, he may not assert its illegality as an excuse for its non-performance. It is an argument more specious than sound, to say that the statute was designed to protect the borrower and not the lender of money, and, therefore, the lender can never assert the illegality of an agreement made in violation of it. The fallacy of this is easily illustrated. Suppose a borrower has actually paid to the lender $100, as the usurious premium agreed upon in consideration of his promise to loan one thousand dollars for six months, and the usurer afterward refuses to make the loan, will any court of justice enforce the agreement or award damages for its non-performance? Clearly not; and the only remedy of the borrower would be to recover back the usurious premium by favor of the law. The statute, in making usury a crime, and declar