
    Perry vs. Spencer.
    [This case involves the question of the application of certain payments, and the following is aa brief a statement as can well be made, and hence the omission of the usual head-note.— Rep.]
    Error to Saginaw Circuit.
   Opinion hi/

Graves, J.

rln this case the Court previously held that voluntary payments to the amount of the penalty of the bond would discharge it. The case now comes up from a second trial on an objection to the finding of the Court. Spencer, and George K. Newcomb were owners in common of a planing mill, and carried it on under the name of Spencer & Newcomb. Spencer sold out his interest to Perry, who gave his bond to Spencer in the sum of $6,000, by the conditions oí which he was to pay or cause to be paid the debts, liabilities and claims against the former firm ot Spencer & Newcomb, and indemnify Spencer against them. Perry & Newcomb continued the business for a short time, when Perry bought out New-comb on the same terms on which he had bought out Spencer. Perry at different times paid a large amount of the debts of Spencer aud Newcomb, and a considerable portion of the amount was paid during the continuance of the firm of Perry <fc Newcomb, some of which was in cash, but the principal part was in notes of Perry & Newcomb. Before the notes matured, the sale from Newcomb to Perry took place, and by the arrangement between them, Perry assumed the payment of these notes and subsequently paid them. The debts of Spencer & Newcomb, paid by Perry in cash up to the time when he purchased Newcomb’s interest, were charged by him to the firm of Perry <& Newcomb. The right to recover was made to turn, in the court below,upon the effect to be given to the payments by Perry which were charged in the books to Perry & Newcomb. If the whole sum of these payments was reckoned against the bond, then it was admitted that the bond was satisfied. But defendant in error contended that, as the sums so paid were charged in the firm books of Perry & Newcomb, they were in effect payments by that firm, and-'that, as against his bond, Perry could only claim the half of such payments and the Circuit Judge so ruled.

Held, That this was error.

Perry’s agreement was to take up or cause to be táken up the debts of the old firm to the amount of $6,000, and it was not material to Spencer from what source he obtained the means so to do. The arrangemen ts between Perry and New-comb were matters for their consideration.

Judgment reversed and a new trial ordered.  