Co. v. Hazzard, 26 IIL 387; Chicago & Alton R. R. Co. v. Gretaner, 46 Id. 84, citing the principal case.

PERSON NOT PHYSICIAN MAY TESTIFY AS TO WHETHER ANOTHER WAS ILL OR NOT: Shawneetown v. Mason, 82 Ill. 339, citing the principal case.

PASSENGER CARRIERS ARE BOUND TO UTMOST CARE FOR SAFETY OF PASSENGERS: Keokuk N. & L. Packet Co. v. True, 88 Ill. 614, citing the prin cipal case.

RAILROAD COMPANIES MUST MAKE PROPER REGULATIONS FOR RUNNING TRAINS and must conform thereto: Chicago & N. W. R. R. Co. v. Taylor, 69 Ill. 465, citing the principal case.

SHIRLEY V. WELTY.

[19 ILLINOIS, 623.]

AGREEMENT BY CREDITOR TO FORBEAR FOR ONE YEAR, AFTER DEBT # DUE AND PAYABLE, in consideration of the debtor's promise to pay twenty per cent interest, is usurious, and that, whether the debtor had or had not previously agreed to pay the creditor whatever interest the creditor might have to pay for other money in consideration of his for bearance to the debtor.

AGREEMENT FOR GREATER RATE OF INTEREST THAN THAT ALLOWED BY STATUTE on a pre-existing debt for an extension of the time for its pay. ment is within the statute and usurious.

ASSUMPSIT. The facts are stated in the opinion.

Jason Marsh and O. Miller, jun., for the plaintiff in error.

J. M. Wight, for the defendant in error.

By Court, Walker, J. This case was originally brought be fore a justice of the peace of Winnebago county, by Shirley against Welty, on the trial of which the plaintiff recovered a judgment for twenty-one dollars and seventeen and a half cents, from which defendant appealed to the Winnebago county court, where the case was tried by a court and a jury at the September term, 1855. Plaintiff on the trial introduced in evidence a note of the defendant for one hundred and twenty dollars, dated September 30, 1851, due on the tenth day of May, 1852. And to prove an account for interest, introduced evidence from which it appears that Shirley was indebted to Fuller & Anyon in a large sum; that plaintiff, after the note was due, called on defendant for payment; that defendant was unable to meet the note, when it was agreed that defendant would pay on the one hundred and twenty dollars which he owed plaintiff the same interest which plaintiff might have to pay for money to pay

Fuller & Anyon, and the time was by mutual agreement extended to defendant to pay his note for one year. That plaintiff borrowed of one Deane seven hundred dollars, at twenty per cent per annum, to pay Fuller & Anyon, which he repaid to Dean. That defendant, after plaintiff had paid Dean, was informed of the rate of interest which plaintiff had paid Dean, and agreed to pay to plaintiff the same rate of interest, and at the time, an estimate was made that the interest on defendant's note, at the same rate, would amount to eighteen dollars, which defendant agreed to pay. The defendant introduced in evidence a receipt on the note, dated May 30, 1853, for one hundred dollars, and also a receipt for thirty dollars, paid on the twelfth of June, 1854, and plaintiff admitted an account for five dollars and eighty-six cents. The jury found a verdict for defendant for two dollars and sixty three cents. Plaintiff entered a motion for a new trial, which was overruled, and the court rendered judgment on the verdict, from which the plaintiff prosecutes this writ of error. The plaintiff on the trial asked the court to instruct the jury that "if there was an agreement that the plaintiff should hire money and let the defendant keep the one hundred and twenty dollars, and the note for one year, and at the same time pay for the use of said money, such agreement is binding, and they will find for the plaintiff such amount at twenty per cent as plaintiff paid to Dean," which the court refused to do. This instruction was properly refused, because it in effect told the jury that they should find for plaintiff such amount at twenty per cent as he had paid Dean. The evidence showed that he had borrowed of and paid to Dean seven hundred dollars at twenty per cent. And if the court had given, and the jury had followed, the instruction, they would have been compelled to give a verdict for that amount, less the payments proved. But we are disposed to consider the instruction, as it was doubtless intended, to instruct the jury to find the balance of the one hundred and twenty dollars due on the note, with twenty per cent. This, then, raises the question whether the contract was obnoxious to our usury laws. Our statute provides that the rate of interest for the loan or forbearance of any money, goods, or things in action, shall be six dollars on the one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time; and that no person or corporation shall, directly or indirectly, accept or receive in money, goods, discounts, or things in action, or in any other way, any greater value or sum for the loan, forbearance, or discount of any money, goods, or things

in action. By subsequent enactment parties are allowed to con. tract for any rate of interest not exceeding ten per cent per annum; but in the absence of such contract, the rate is six per cent. This note was a thing in action; the money was due and payable, and suit could then have been brought to enforce payment. But the parties agreed that the plaintiffs should forbear for one year, and in consideration of such forbearance the defendant agreed to pay twenty per cent interest per annum instead of six, the rate fixed by the statute. This is what the agreement amounts to, and nothing more. It has been held that an agreement to give a greater rate of interest than that allowed by statute on a pre-existing debt for an extension of time for its payment is within the statute against usury, and is not distinguishable from a contract to pay usurious interest at the creation of a debt: Crane v. Hubbel, 7 Paige, 413; Vilas v. Jones, 1 N. Y. 274.

It is a well-settled principle that any shift or trick which may be resorted to for the purpose of evading the statute is as much within the statute as if its provisions had been directly violated. And this at most would only be getting twenty per cent for delay in payment of a debt, where the statute had only allowed six. It was urged that this case fell within the principle of Shirley v. Spencer, 4 Gilm. 583. In that case Spencer authorized Shirley to borrow money for him on the best terms he could, and enter for him eighty acres of land. Shirley obtained the money at thirty-three per cent, and entered the land in the name of the lender. Afterwards Shirley paid him the principal and interest, and took a conveyance to himself. Spencer filed a bill for specific performance against Shirley, and insisted he was only bound to pay the original entrance money, with legal interest. The court there very properly held that Shirley had acted as Spencer's agent in borrowing the money, entering the land, and paying the money with the interest; and to entitle himself to the land, he must refund the money paid out by his agent. This case, to be in point with that, would have required Shirley to have borrowed the money as agent for Welty, and paid Welty's debt himself, and then to have repaid the original loan and interest. Had that been the state of facts, then the case of Shirley v. Spencer, supra, would have been in point. But here the plaintiff borrows money to pay his own debt, and defendant agrees to give twenty per cent for an extension of time. То allow the plaintiff to recover on this state of facts would be te i a merchant money-lender, or other person in trade

may borrow a sum of money at any rate of usurious interest, and then agree with all of his debtors for a like rate of interest. He would perhaps pay a high rate on one hundred dollars, and receive of his debtors the same rate of usury on one hundred thousand dollars. This would be clearly a trick to evade the statute, which a court could not tolerate. We think the court did right in refusing the instruction. And no error is perceived in the record, and the judgment of the court below should be affirmed.

Judgment affirmed.

AGREEMENT FOR PAYMENT OF MORE THAN Legal Interest, after matu- ́ rity of debt, is usurious: See Gower v. Carter, 66 Am. Dec. 71, and note 76, aiting other cases.

SCHOONHOVEN v. GOTT.

[20 ILLINOIS, 46.]

VARIANCE BETWEEN NAMES IN SUMMONS AND DECLARATION IS MATERIAL, when the summons is against "Schoonhoven" and the declaration is against "Schoonover:" the names are not the same in sound.

ENTRY OF MOTION TO QUASH WRIT OR DISMISS SUIT IS NOT SUCH APPEAR. ANCE AS WAIVES VARIANCE between the writ and the declaration.

ASSUMPSIT. The facts are stated in the opinion.

S. Wilcox, for the appellant.

J. M. Walker, for the appellee.

By Court, WALKER, J. This was an action of assumpsit brought in the Kane circuit court. The summons was against Nicholas Schoonhoven, and the return shows service by that name. The præcipe, the bond for costs, and the declaration were all entitled against Nicholas Schoonover. At the February term, 1857, the defendant entered his motion to dismiss the suit for a variance between the summons and declaration, which was overruled, and the court rendered judgment against defendant and assessed the plaintiff's damages. And to reverse that judg. ment, the defendant brings the case here by appeal, and assigns for error the overruling the motion to dismiss, and the rendition of the judgment by the court below.

The question presented by the record in this case for our consideration is whether there was a variance between the names in the summons and declaration. It is a general rule in pleading that the declaration should pursue the writ in regard both

to the christian and surnames of the parties; and where there is such a difference as not to be the same in sound, the variance might be pleaded in abatement, but the misspelling is not, however, material if the two names are the same in sound: 1 Ch. PL. 245.

In the application of this rule, it was held in the case of King v. Shakespeare, 10 East, 83, that the names Shakepear and Shakespeare were not the same, and a plea in abatement for the variance was held good on demurrer. In 4 Bac. Abr., tit. Misnomer, A, 752, it is said that Rudulphus and Rodalphus are not the same names, there being a material variance in the sound. It was held by the supreme court of South Carolina, ́ Bull v. Franklin, 2 Spears, 46, that Willison and Williston are not the same. And the rule that the names must be the same in sound is recognized by all of the English and American courts. Then when we test the present case by this rule, it is obvious that the variance is clear and distinct, the only similarity being in the first syllable, the latter portion of the names being different both in the sound and in the orthography. The variance is certainly as marked as in either of the above

cases.

If the proper name was used in the summons, then the plaintiff could have amended his declaration on leave of the court, so as to obviate the variance; and if the correct name was used in the declar ation, the defendant had a right to plead the variance in abatement of the writ, or move to quash, and the plaintiff could not avoid it unless by replication and proof that defendant was as well known by the one name as the other.

The mere entry of a motion to quash the writ or dismiss the suit is not such an appearance as waives a variance between the writ and declaration, and the variance in this case was not cured by the motion of the defendant.

The court is of opinion that the variance in this case was material, and that the judgment should be reversed and the cause remanded.

Judgment reversed.

VARIANCE AS TO NAMES, WHEN MATERIAL: See Schooler v. Asherst, 13 Am. Dec. 232, and note; and see Cartwright v. Chabert, 49 Id. 742, as to allowing amendments of the names of parties.