Shafer's Appeal

Mr. Justice Mercuk delivered the opinion of the court, January 2d 1882. This is an appeal from the refusal of the court to open a judgment. It was entered on a note, executed by the appellants for $4,000, dated December 28th 1874. The note was given to J. 17. Dick & Co., bankers. The firm was composed of James 17. Dick, Samuel R. Dick, and Stnrges T. Dick. Four days after the giving of the note, James 17. retired from the firm, and subsequently died, and the judgment is now in the hands of the two surviving partners. It is not shown that any usurious interest was paid on this note, before judgment was entered thereon. If any such was afterwards paid, no necessity exists for opening the judgment to obtain just relief. It is no cause for an attack on the validity of the original judgment. It is merely an equitable payment thereon to the amount of the excess of interest paid. The court may stay execution for the sum thus claimed, as in case of any alleged payment, until the facts can be ascertained, and the just amount be applied on the judgment. The order made by the court, when it discharged the rale to open the judgment, clearly provides for ascertaining the amount legally duo thereon. Prior to the formation of the firm, to which the note in question was given, other persons had been banking in the name of J. 17. Dick & Co. The appellants had been indebted to those persons and paid them usurious interest. The attempt was to compel the application of that interest on this note. It was to charge Sturges T. Dick with a liability he never incurred, and a responsibility he never assumed, lie was not a member of either firm, when such excess of interest was either charged or paid. The last firm was wholly separate and distinct from the [250] former. Its formation was duly advertised and well known. New and separate books were opened. It assumed none of the obligations of tbe preceding firms. The firm of which Sturges is a member, discounted the present note, and paid the money or its equivalent therefor. The learned judge' found as a fact, and on sufficient evidence, that this note was not given to renew any old debt; but to borrow money from the new firm to pay a debt due the old firm. This was the creation of a debt to. a new firm, to cancel a debt due to another firm. It was therefore a novation. It is unimportant that some of the persons in the earlier firm were also members of the last firm. This note was given with an intent, and for the purpose, of fully paying and discharging the debt due to the firm, of which Sturges was not a member, and to substitute an indebtedness to the firm of which he was a member. In furtherance thereof, all the other notes were given up and canceled, and a new note given to a new firm. The learned judge correctly held that this alleged equity of the appellants could not be invoked to the prejudice of Sturges. A contract, made under the facts shown,. cannot be successfully attacked in the manner proposed. Decree affirmed, and appeal dismissed at the costs of the appellants.