Page:Federal Reporter, 1st Series, Volume 7.djvu/309

 LOVBEIDGB V. LAKNED. 297 �" What was the regular and customary rate at which you paid interest on these loans ?" �And answered : �" The loans originally were made at two different rates of interest. The original loans were never lost sight of, The interest was made up on the original amounts, except as reduced by the $3,000 payment and the $450 payment. The $5,000 loan was at 2 per cent, per month, and Mt. Hoole, whea he paid the $3,000, paid it it on account of that loan. Thereafter, Mr. Larned's statements were rendered for $2,000 at 2 per cent., and the other separate loans at IJ^ per cent, a month." �" Did these statements always distinguish these several loans, or were they united in one amount ?" �" They were never so united. The original loans were always kept in view and referred to." �Upon the whole evidence it is found as a matter of fact that the loans were the same throughout, and that the change of obligations and securities was, and was intended by the parties to be, in renewal and not in extinguishment and substitution, unless in law it must be considered otherwise. And this does not seem to be the case, for although in some states giving a new note is prima facie a satisfaction of the old debt, in other states and in England it is not, unless agreed to be, in satisfaction; and nowhere is it understood that the law implies satisfaction from the giving a new note when the parties intend it shall not be. That the new note was that of a partner alone, given for a firm debt, does not vary the eiieet under these circumstances. Coll. on Part. (Wood's Ed.) § 750, note. The partner was liable for the whole debt before, and his renewal was in renewal of his own debt ; what was paid was upon the debt. �Although the statutes of New York are not understood to- provide that unlawful interest paid may be recovered back, still it is not doubted or contended in this case but that it may be in a proper action; nor but that, as between the parties, application of it to the principal may be compelled. Bac. Abr. "Usury," G. This suit is brought to compel such. payment, not to recover anything back. The money paid be- yond lawful interest on account of a debt, is, in legal effect, a payment upon the debt. The bill was not and could not properly be framed under any code of procedure requiring tha ��� �