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takes an innocent person, who was justly suspected, he should not suffer at all."

These are matters to be determined at the trial of the case. Judgment reversed and a procedendo awarded.

The Malicious Prosecution of civil actions is the subject of a note to McCormick Harvesting etc. Co. v. Willan, 93 Am. St. Rep. 454; and the malicious prosecutions of criminal actions is the subject of a note to Ross v. Hixon, 26 Am. St. Rep. 127.

Any Person Who Aids or Abets an Unlawful Arrest is liable for false imprisonment. And every restraint upon a man's liberty is, in the eyes of the law, an imprisonment, which, if not lawful, is a false imprisonment: Goodell v. Tower, 77 Vt. 61, 107 Am. St. Rep. 745.

KLEIN v. PENNSYLVANIA SAVINGS FUND AND LOAN

ASSOCIATION.

[216 Pa. 516, 65 Atl. 1103.]

BUILDING AND LOAN ASSOCIATIONS-Usury. If the members of a building and loan association are notified by its officers that they will be required to pay six per cent per annum premium on all loans in addition to legal interest, and they accordingly make written application for loans on such terms, giving a power of attorney to an officer of the association to submit their bid, and the board of directors of such association pass upon such applications, according to their priority without any bidding or competition, they act in violation of law, and a member is entitled to set off against the principal of his loan all premiums paid in excess of legal interest. (pp. 788, 789.)

Bill for an accounting. In the trial court an opinion was filed, which, in part, is as follows:

516 "FRAZER, P. J. The purpose of the bill in this case was to secure permission for plaintiff to pay into court a balance claimed to be due by defendant from plaintiff on a mortgage against certain property owned by plaintiff; also, to have the mortgage satisfied and allow plaintiff to contest defendant's right to the balance claimed by it. From the bill, answer and proofs we find the following facts:

"FINDINGS OF FACT.

"1. Defendant is a corporation of the state of Pennsylvania, organized in the year 1891, under the building and loan association act, approved April 29, 1874 (Pub. Laws, 73), its principal office being located in the city of Pittsburg.

"2. Plaintiff, as a member of defendant corporation, subscribed for forty shares of its capital stock and borrowed thereon the sum of $4,000. [At the time of making his application 517 for the loan he was informed at the office of defendant by a person in the office at the time that a premium of six per cent on his loan would be necessary, and that thereupon he signed a written application for the loan], [1] together with a power of attorney authorizing W. A. Hemphill, an employé of the association, to represent him at a meeting of defendant company to be held July 12, 1894, and bid for him a premium of six per cent per annum for preference or priority of loan. The paper signed by plaintiff is as follows:

" "I Robt. Klein, of Pittsburgh, County of Allegheny, State of Penna., being a member of the Pennsylvania Savings Fund & Loan Association, and desiring to borrow therefrom the sum of $4,200, do hereby appoint W. A. Hemphill of Pittsburgh, to attend a meeting of the members of said association and. there to bid for me and in my name and place a premium of six per cent per annum for preference or priority of loan, to be paid by me in monthly installments in addition to the interest of six per cent on the sum borrowed.

666

'Witness, my hand this 10th day of July, A. D. 1894. "(Signed) ROBERT KLEIN.'

"'I, W. A. Hemphill, being personally present at a meeting of the members of the Pennsylvania Savings Fund & Loan Association held this 12th day of July, 1894, at the principal office of said association, Pittsburgh, Pa., by virtue of the foregoing appointment, have at the said meeting, for and in the name of the said Robert Klein, bid six per cent premium for priority of loan.

"Attest:

666

'(Signed) W. A. HEMPHILL.

"'HARVEY HENDERSON.'

"3. At the meeting at which plaintiff's loan was granted there were altogether fifteen applications for loans, each applicant being represented either by Mr. Hemphill, who represented Klein, or by Mr. Black, the general manager of Am. St. Rep., Vol. 116-50

the defendant association, under powers of attorney similar to that signed by plaintiff. [The applications and bids were handed in one at a time by the person representing the applicant, and thereafter were taken up by the board and passed upon in the order of priority of date. There was no bidding or competition whatever 518 between the persons representing those members desiring to become borrowers.] [2]

"4. [Previous to the month of February, 1894, under the by-laws of defendant association, then in force, borrowers were required to pay a fixed premium of fifty cents per share, which amounted to six per cent per annum.] [3] In February, 1894, however, the by-laws were amended by striking therefrom the requirement for a fixed premium. At the time plaintiff procured his loan each applicant bid a premium of six per cent per annum, there being no bids for either a greater or less amount. Subsequently loans were made for a time at a premium of 4.8 per cent per annum, and afterward at three per cent per annum. While no action by the board of directors, or the stockholders of the association, was taken requiring borrowers to pay a fixed premium, it, however, appears from the testimony to be a fact that no loans were made without the payment of a six per cent premium during a certain period, and 4.8 per cent premium during a subsequent period, and a three per cent premium during a still later period.

"5. Borrowers were seldom present at meetings at which their applications for loans were passed upon, it being [the universal custom to have the application presented by a representative of the borrower, who usually was either an officer or employé of the association, the application and authority to the representative to bid in all cases being similar to that signed by plaintiff.] [4]

"6. On July 21, 1902, plaintiff made application in writing to defendant association requesting that the premium of six per cent per annum for priority of loan be reduced to one per cent per annum, and interest to five per cent per annum, which request was granted by the board of directors on that day, and that thereafter plaintiff was charged with interest and premium at this reduced rate.

7. Upon his loan plaintiff has made the following payments to defendant association, viz.:

"96 monthly installments of premium at $20...$1,920 "103 monthly installments of interest at $20..... 2,060 "105 monthly installments of dues at $20...... 2,100

"Total..

...$6,080

519 "Plaintiff's claim is that the above payments are ample to fully discharge his indebtedness to defendant on account of his loan.

"8. Defendant claims the sum of $1,601.78 to be still due it on account of plaintiff's indebtedness.

"CONCLUSIONS OF LAW.

"2. [In this case defendant is a building and loan association and plaintiff a stockholder thereof. Was the law com plied with in bidding for preference. At the time plaintiff received his loan there were fifteen applications for loans. It does not appear that a single applicant was present in person at the meeting. Each had signed an application prepared by the association and had appointed an officer of the association his representative to bid for him a definitely fixed premium of six per cent per annum. These applications were virtually an agreement upon the part of the borrower to pay a premium of six per cent in addition to legal interest, and the power of attorney attached merely authorized the applicant's representative to convey that offer to the association. It does not appear to have been the intention of the parties that there should be competition between the borrowers. On the contrary, the conclusion is irresistible that just the opposite was intended. Instead of bidding, i. e., competing at auction for priority, these offers were handed to the directors of the association by the representative of the applicant, and were thereafter acted upon according to priority of date. In construing the statute permitting premiums on loans our appellate courts have in no uncertain language laid down the course to be pursued to make such charges valid.] [5]

"3. [In this case we have found as a fact that at the time plaintiff received his loan there was no competitive bidding. That finding, it seems to us, is clearly warranted by the evidence and the surrounding circumstances. Plaintiff testifies,

and the testimony of at least one other witness tends to support him, that he was informed by an employé of the association that a six per cent premium would be necessary to secure a loan, and it also appears that at the time plaintiff received his loan, and for some time both before and after, no loans were 520 made by defendant association to borrowers for either a greater or less premium than six per cent. These circumstances, together with the fact that every applicant for a loan at the meeting of July 12, 1894, received a loan at the uniform premium of six per cent and also that the applications were acted upon by the directors in the order of their date, show conclusively that the money for loan was not offered in open meeting and awarded to the highest bidder for priority, as the law directs. It therefore follows that the premium charged plaintiff previous to July 21, 1902, the time at which the premium and interest were reduced, is usurious and illegal.] [6]

"[4. Plaintiff having paid defendant association as dues, interest and premiums the sum of $6,080, which amount is more than sufficient to fully pay and cancel his loan of $4,000, together with legal interest thereon, it follows that he is not indebted to defendant in the sum of $1.601.78 or any other amount, and that the money in court, less prothonotary's commissions, should be paid to him.] [7] "A decree was entered in accordance with the opinion. W. B. Rogers, for the appellant.

W. H. Lemon, for the appellee.

MESTREZAT, J. The single question raised by this appeal is whether Klein obtained his loan from the defendant association by competitive bidding. The learned trial judge has found that at the time Klein's loan was granted there were fifteen applications for loans, that the application and bids were handed in one at a time by the person representing the applicant and thereafter 521 were taken up by the board and were passed upon in order of priority of date, that there was no bidding or competition whatever between the persons representing those members desiring to become bor

rowers.

On these findings of fact, the court's conclusion of law is as follows: "Was the law complied with in bidding for

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