#### Selden *et ux. versus*Reliable Savings and Building Association.

1. By act of April 12th, 1859 (Building Associations), it was provided “that no premiums, fines or interest on such premiums that might accrue ” to an association should be deemed usurious. In a suit on a mortgage for §3000 to the association, it was not sufficient in an affidavit of defence to aver that the mortgagee had received but §1800.

2. The difference between the two sums was presumptively the premiums made legal by the act.

3. An averment in the affidavit that the mortgagee had paid §800, without saying on what account, was insufficient, the presumption being that it was for fines or dues.

4. An averment of payment, not- stating that a payment was on account of the debt sued for, is insufficient in any ordinary suit for a debt.

March 2d, 1864.

Before Sharswood, Merour, Gordon, Paxson, and Woodward, JJ.

*337Error to the District Court of Philadelphia, of January Term, 1875, No. 39.

This was a scire facias sur mortgage issued August 1st, 1874, by the Reliable Savings and Building Association against George S. Selden and Elizabeth *W.*Selden his wife.

Plaintiffs were incorporated by act of April 12th, 1859 •.(Pamph. L., 544).

By the 6th section it is provided that

“No premiums, fines, or interest on such premiums that may accrue to the said corporation, according to the provisions of this act, shall be deemed usurious, and the same may be collected, as debts of like amount are now by law collected in this commonwealth.”

On the 20th of March, 1871, the defendants executed to the plaintiffs a mortgage on real estate of Mrs. Selden, in Philadelphia. The mortgage recited an obligation of same date with the mortgage by G. S. Selden to the plaintiffs, conditioned for the payment of $3000 in one year from the date, “ with lawful interest, payable monthly, and together with all fines imposed by the constitution and by-laws of the aforesaid association, payable on the third Monday of each and every month thereafter, and should also well and truly pay, or cause to be paid, unto the said Reliable Savings and Building Association, their successors and assigns, the sum of fifteen dollars, on the third Monday of each and every month thereafter, as and for the monthly contribution on fifteen shares of capital stock of the said association, now owned by the said George S. Selden. Provided, etc., that if at any time default should be made in the payment of the said principal money when due, or of the said interest, or of the said fines, or the monthly contribution on said stock, for the space of six months after any payment thereof shall fall due, or if the said George S. Selden shall not well aud truly pay or cause to be paid the taxes on the hereinafter described premises, etc., also shall not well and truly pay or cause to be paid all and every such sum or sums as should thereafter be assessed by any public authority upon the said principal debt or sum, or upon the interest thereof, then and in such case the whole principal debt aforesaid should, at the option of the Reliable Savings and Building Association aforesaid, their successors and assigns, immediately thereupon become due, payable and recoverable, and payment of said principal sum, and all interest and all fines thereon due, as well as any contribution on the said fifteen shares of stock then due, may be enforced and recovered at once,” etc.

G. S. Selden filed an affidavit of defence, “ That he received only about eighteen hundred dollars in money, having bar*338gained and dealt in the matter with Mr. Colladay, president of plaintiffs; since receiving said money, this affiant has paid to plaintiffs, he thinks, upwards of eight hundred dollars, the exact sum, dates and amounts this affiant cannot now state, having mislaid the book containing the record thereof, but will be able to prove the sum exactly on the trial. This affiant also received, or is entitled to receive, as part of the arrangement, fifteen shares of plaintiffs’ stock, for which he was informed by Mr. Colladay, at the time of the arrangement, he would record a credit of its' value, which this deponent was informed and believes is about sixteen hundred dollars, all of which he expects to be able to prove on the trial, and further saith not.”

On the 26th of September, 1874, judgment was entered against the defendants for want of a sufficient affidavit of defence, and damages assessed at $3327.64.

The defendants took a writ of error, and assigned for error that judgment was so entered.

*G. 8. Selden,*plaintiff in error, P.P.

*A. Moore*and _D. JV. *Fell*for defendants in error.

Judgment was entered in the Supreme Court March 13th, 1876.

Per, Curiam :

This was a scire facias on a building association mortgage. By the act of April 12th, 1859, entitled : *“*An act to confer on certain associations of the citizens of this commonwealth the powers and immunities of corporations and bodies politic in law, and to confirm charters heretofore granted,” Pamph. L., 544, it is provided by section 6, “ that no premiums, fines, or interest on such premiums that may accrue to the said corporation, according to the provisions of this act, shall be deemed usurious, and the same may be collected as debts of like amount are now by law collected in this commonwealth.” It is plain that in such a proceeding it is no defence to say that the borrower has only received a certain sum, for the difference between that and the face of the mortgage is presumptively the premiums which the act makes legal. Nor is it enough to state that he has made a certain payment or payments, unless he goes on to state on what account the payments were made. Presumptively they were for fines or dues. Indeed the affidavit in this case does not state that the payments were made on account of the debt sued for, and would be bad in any ordinary proceeding on a bond or note. Nor does the alie*339gation that the defendant was the owner of fifteen shares of the stock of the plaintiffs, and was entitled to a credit for its value, avail the defendant. He does not say who Mr. Oolladay was, or what authority he had to bind the plaintiff's by the agreement which he sets up.

Judgment affirmed.