Page:Federal Reporter, 1st Series, Volume 7.djvu/307

 LOYEBIDGE V. LABNED. 295 �B. became bankrupt, and his assignee brought this bill to redeem the mortgaged estate and collaterals, alleging that the above debtg were satisfled by the payment of the several sums of money which had been paid on account of the debts, but without alleging that any part of them was paid as unlawfijl interest, or setting up that fact as a ground of extinguishment of the debts, or as aflording or affecting any relief. Seld : �(1) That the law implied no satisfaction of the flrm debts by the giving of B.'s obligation therefor, because it was the intention of the parties to give it in renewal and not in extinguishment and substitu- tion of the flrm debts. �(2) That the money paid beyond lawful -interest on account of a debt, is, in legal eflect, a pa3Tnent upon the debt, and that the fact was well stated in the bill as constituting payment. �(3) That the plaintiii, as assignee, is vested withi all the rights of the bankrupt, B., as the surviving partner, to have the debt reduced to its just proportions. �(4) That as the debts were kept separate and distinct frora each other, and interest was paid expressly upon each, and not in gross upon the whole, the payments on account of each debt are to be applied to the legal interest then due on that debt, and the residue to- the principal as of that date. �(5) That the objection that the bill was defective because it did not tender the balance due, not having been taken by demurrer or other- wise until the hearing, cannot prevail now. �(6) That the defendant having denied the right to redeem, and the orator not having tendered the balance due, neither party should bo allowed costs. �In Equity. �George A. Black, for plaintiff, F. A. Paddock, for defendant. �WHBBiiBB, D, J. This cause bas been heard on pleadings, proofs, and arguments of counsel, from which it appears — �That in 1870 John R. Hoole and his son, John R. Hoole, Jr., were in business in partnership, in the cityof New York, under the flrm name of John R. Hoole & Son. At various times in the latter part of that year, and the forepart of the next, they borrowed money of the defendant, and gave him flrm notes for it,— $3,000, July 26, 1870 ; $1,000, August 26, 1870; $2,000, October 25, 1870; and $1,200, March 8, 1871, at 18 per cent, interest; and $5,000, September 1, 1870, at 24 per cent interest,— all secured by collaterals. Novemher 3, 1871, John R. Hoole took up all the notes and collaterals belonging to them, except the note of $5,000, and gave therefor his bond, secured by mortgage, for $6,750, and his note of $450, which was soon paid. John R. Hoole, Jr., died in the spring of 1872, leaving John R. Hoole surviving partner, who continued the busi- ness. May 4, 1873, Hoole paid to the defendant $3,000 of the $5,000, and gave his note of $2,000 for the balance of that note, and took up the col- ��� �