64 Ga. 178 | Ga. | 1879
There were two suits by the bank against Williams, each upon a draft drawn and accepted by the debtor, and payable to the order of the creditor. The first suit was commenced on January 16th, and the second on March 20th, 1877; the former upon a draft for $878.85, dated December 21st, 1874, and due October 15th, 1875 ; and the latter upon a draft for.$711.35, dated November 15th, 1873, and due October 15th, 1874. Each draft stipulated for interest at 25 per cent, until paid, in case of failure to pay at maturity. The elder and larger draft had upon it two credits ; one for $200.00, dated October 9th, and the other for $211.35, dated October 19th, 1874.
There was a plea to the second suit, with a prayer that both suits be consolidated, and that this plea operate in both. It alleged usury, averring that on January 3d, 1873, defendant borrowed of plaintiff $850.00, and gave his two
Both suits were ref erred to an auditor, whose report was adverse to allowing anything on account of usury paid on the notes, or of usury in either draft. The auditor, moreover, computed interest on both drafts from their maturity, at the rate of 25 per cent._
In the argument here, the debtor conceded that the younger and smaller of the two drafts was free from usury; and the creditor conceded that the elder and larger was subject to be reduced because the note in renewal of which it was given was not purged when the draft, was executed. Of course there is no occasion for this court to express its opinion upon matters in which both parties are agreed. The questions which remain for decision are, first, whether the usury paid on the two notes met at maturity is available as payment or set-off in this litigation ; and, secondly, how interest ought to be computed on the loan of January 3d, 1873, in purging the note in place of which the draft was given by way of renewal, and how counted on the draft itself thus reduced in the principal sum.
Judgment reversed, with directions.