
    James Bond vs. Catharine Jones.
    Money paid upon an usurious contract may be recovered back at law ; and also in equity where there are circumstances to give the court jurisdiction ; where therefore after a judgment at law upon a note to which the de-fence of usury had been successfully made and the amount of the judgment reduced thereby, the defendant voluntarily paid the plaintiff the amount of usury thus deducted in the suit at law, it was held, that the defendant .could by bill in equity enjoin the judgment at law to the extent of such voluntary payment and have credit of the amount thereof entered on the judgment.
    The mode of computing interest in this state when partial payments are made, is regulated by statute; which directs the payment to be first applied to the discharge of the interest due, and the balance to the principal.
    If an answer to a bill which might be demurred to for multifariousness, contain a demurrer on that account, but at the same time goes farther and responds in full to the charges of the bill on the subjects alleged to be multifarious, the answer will overrule the demurrer.
    A bill filed by an administratrix to enjoin a judgment against the surety of her intestate to have usurious payments made by her to the creditor on the judgment allowed ; and at the same time seeking to settle the account between her intestate and the surety, and to have certain claims of her intestate against the surety allowed, is it seems multifarious.
    On appeal from the decree of the superior court of chancery; Robert Hughes, Esq., special chancellor.
    Catharine B.’ Jones, administratrix, &c. of Edward N. Jones, states in her bill, that in the lifetime of the intestate, on the 21st of October, 1835, he gave an obligation to James Bond, for $5199 99, due in three equal annual instalments, and that it was also agreed that there should be delay on the whole, by Jones paying ten per cent, per annum, until the 1st of January, 1838, and interest at same rate on all interest accrued after 1st of January, 1837. That Vernon G. Hicks was surety for Jones, and that the consideration of the obligation was land, sold by Bond to Jones. That shortly afterwards Jones died intestate, and letters were granted to complainant. That in 1837, she put money into the hands of Hicks, with which Hicks paid .either to Bond, or Robert H. Buckner, then as-signee of said obligation, $3033 33, and took a receipt, which was misplaced or lost. A credit for $2000, 28th December, 1837, was placed on the back of the contract, which should have been for the sum named in the receipt. That early in 183S, suit at law was brought on said obligation in Hinds circuit court in then ame of Bond, use of Buckner, against Hicks, and judgment rendered 29th June, 1839, against Hicks for $3199 99, being balance of principal, after deducting the credit of $2000, whereas it should have been for only $2166 66; the interest not being claimed or allowed by the court.
    On the 20th December, 1839, complainant agreed with Bond, that if'he would stay the execution against Hicks as to one-half, until 1st January, 1841, and as to the residue until the same time, 1842, complainant would pay, and in consideration of such stay, did pay to him on the 20th December, 1839, the sum of $215, and on 21st December, 1839, $1280; and at same time, Thomas and W.'H. Mount paid Bond also $4604 for complainant, making in all $1541 04, and complainant gave Bond her note for about $200, which is yet unpaid, for the same consideration.
    At the time of these payments, Bond agreed to' enter the stay on record of the court, but entered it on the fi. fa. in the sheriff’s office, and withheld it from record. After the fi. fa. was returned, Bond went to clerk’s office and erased the stay from the back of the fi. fa., and in violation of his agreement, sued out a fi. fa. on said judgment, returnable September term, 1840, and caused it to be levied on seven slaves of Hicks, but did not remove them from his plantation.
    That shortly before the last mentioned fi. fa. was issued, Hicks died, but letters of administration had not then been granted. William H. Hamer was subsequently appointed his administrator.
    Upon the last fi. fa. the sheriff returned that he sold two slaves, Simon and Sally, at public auction, to Bond for $1550, and that he applied $3 of the price to printer’s bill, so the fi. fa. has credit for $1547.
    The sheriff’s return purports that the sale was made at public auction, 21st September, 1840, but that in fact Hamer had sold and delivered said slaves to Bond, who agreed to credit the fi. fa. with that sum, and took the slaves home with him before they were advertised ; and at the time of said pretended sale, the slaves were not present, nor in the possession of the sheriff; and said sale was made by the sheriff by agreement between himself and Bond and Hamer, without the knowledge or consent of' complainant.
    That Simon and Sally were not worth more than half the amount of $1550; and Hamer, by collusion with Bond, contrived to have an apparent claim against complainant’s intestate, for much more than the value of the property sold to Bond toward the payment of the ji. fa., and Bond by such collusion had contrived to obtain payment from the estate of Hicks, before the expiration of the slay of thefi. fa., for which complainant had paid such enormous usury, and when complainant was not prepared to pay out of the estate of Jones.
    That in 1835, Jones and Daniel P. Harrison (as Harrison & Jones) were partners in a druggist shop, and in the practice of medicine, and Hicks became indebted to them, for medical services and articles sold to him, $223 25 ; and after the death of Jones, Harrison drew off the account and transferred it to complainant, as administratrix of Jones, and Hicks took the account and promised to pay it to complainant, or give her credit for it whenever a settlement of money matters should' take place, which had not yet happened.
    James Bond, Robert H. Buckner, Daniel P. Harrison, and William H. Hamer were made parties; and the bill prayed that Bond be decreed to credit $33 33 paid before suit brought, and to deliver to complainant the note given him by her, to bp can-celled, and to set off against said judgment so much of the money paid by complainant to Bond as would satisfy the judgment, and pay the surplus to complainant; and that the true value of the two slaves sold by Hamer to Bond, be ascertained and credited on the judgment previous to the set-off; and that complainant, as administratrix, &c. of Jones, be charged with that value and the costs of the suit; and that the account of Harrison and Jones as filed, be allowed to complainant as a set-off against so much of the value of the slaves.
    An injunction was granted.
    The ‘answer of Bond states, that in 1835 he sold a tract of land in Hinds county, to Jones, for $>10 per acre, $5199 99 cash. After the sale, Jones learnt from respondent that he did not intend to invest the money in property, but to loan it. Jones proposed to borrow the money at ten per cent, interest, payable in three instalments, and to give his brother-in-law Hicks as surety on the notes. Respondent accepted the proposal, and the business was completed at Raymond, 21st October, 1835. Respondent did not know that it was necessary that a note or writing should express to be given for borrowed money to enable him to draw ten per cent, interest.
    Suit being brought on the note, the judge at the trial decided that respondent was not entitled to recover any interest whatever.
    Sometime afterwards Jones died. Respondent purchased a tract of land in Choctaw county from defendant Buckner, and in part.pay transferred $3000 of the $5199 99 to Buckner, and delivered the writing or obligation to Buckner for'collection. After which, as respondent is informed, Hicks paid Buckner $2000, and gave his note with sureties for $1000 more to Buckner, payable at the Commercial and Railroad Bank at Clinton. Buckner took the note on condition that it would be discounted by the bank. He indorsed the $2000 on the obligation, but not the $1000 on note, as that was only a conditional credit.
    Suit was brought by direction of respondent for the recovery of the balance due against Hicks. The suit was brought probably before the $1000 note had been discounted, or used by Buckner, and credited; so judgment was obtained 29th June, 1839, for $3199 99.
    On settlement with Buckner, respondent was informed by him that he had received $1000 on the note given by Hicks, and Buckner gave respondent an order on the sheriff of Hinds county, for the proceeds of the judgment and a transfer of all his interest therein. Respondent forthwith entered a credit on the judgment for $1000, leaving $2199 99, the balance due thereon.
    Soon after the judgment was obtained, respondent, who resides in Choctaw county, received a letter from complainant, stating that a judgment had been obtained against Hicks for the balance due — that the attorney for the defence, on the ground of usury, had prevented the recovery of ten per cent, interest, due to respondent — that the defence was made without her knowledge, &c., and that she would pay the amount of interest of which respondent had been deprived.
    Respondent avers that the payments of $215 and $1280 by complainant, $46 by Mount, and the note for $152, given by complainant, were all in consideration of the interest due to him on the money lent by him to Jones; and that the sums were paid by complainant under the full conviction of the justice of respondent’s claim ; and respondent denies that any or either of said payments were made for a stay of execution, or in part payment of the judgment.
    After the payments made to respondent as aforesaid, by complainant for interest, respondent not being pressed for money, and to oblige Hicks, who was considered solvent, and at the request of Hicks, agreed to stay the fi: fa. as stated in the bill, on condition that the debt should continue safe, and indorsed such instructions in his own hand-writing on the fi. fa. Afterwards respondent was informed that judgments to a large amount had been recovered against Hicks, and that he was insolvent.
    At the instance of complainant, and by the advice of an attorney, he had the instructions erased and cancelled from the execution, and another execution issued, which was levied on seven negroes,'belonging to Hicks’s estate on the lands of Ha-mer, agent and subsequent administrator of Hicks.
    After the levy, respondent agreed to take the two negroes at the price stated, on condition they should be advertised and sold by the sheriff so as to perfect his title, and the negroes returned to work on the farm. At the time appointed for the sale, respondent returned to Raymond and found the negroes had been sent,by Hamer to the sheriff for sale, but the sheriff had neglected to advertise according to law, and refused to sell.
    Respondent was unwilling to lose the services of the negroes, and after consulting several attorneys, he was advised that he could safely take the negroes with him, and leave an agent to bid them off on the day of sale and make a good title, which was done.
    After the sale of the negroes, he gave a receipt for his bid upon the judgment.
    He denies all knowledge of the account mentioned in the bill between Hicks, and Harrison & Jones, and protests against answering in relation thereto ; and demurs to so much of the bill as makes Harrison and Hamer defendants, and seeks to settle accounts between Harrison & Jones, and Hicks, and between Hamer and complainant, or between the estates of the two intestates (Jones and Hicks), for multifariousness; and that the bill seeks relief against parties who cannot be. joined.
    The defendants Buckner, Harrison and Hamer, demurred to the bill.
    The proof in the cause substantially corroborated the answer of Bond, as to the payment of the larger sum after the judgment ; it is, therefore, not deemed necessary to set it out at length.
    The counsel for the parties agreed upon Robert Hughes, Esq. as special chancellor; chancellor Buckner being interested as a party.
    On the 21st January, 1843, a final decree was given. The demurrer of Buckner, Harrison and Hamer, was sustained, and the bill dismissed as to them.
    The demurrer of Bond was disallowed, and an account ordered to be stated between the parties, Mrs. Jones and Bond, by a commissioner with instructions to charge complainant with the amount of the judgment mentioned in the pleadings, with interest thereon from date of judgment; and to give complainant credit, charging Bond with the $1000 paid to Bpckner with interest; and with the amount paid for interest, as stated in the pleadings and proofs, and interest thereon from the time of payment ; and with the amount for which the two negroes were sold, with interest thereon.
    From this decree Bond appealed.
    
      J. F. Foute, for appellant.
    1. There is no judgment against Mrs. Jones; and as she voluntarily paid Bond the money on what she declared to be a binding moral obligation, she ought not to be permitted to recover the money back. Mowry v. Bishop, 5 Paige, 98.
    2. If she can recover the money back, her remedy is at law, where she should seek relief.
    3. The demurrer of Bond, as well as of the other defendants, should have been sustained. West v. Randall, 2 Mason, 181; Stuart's Heirs v. Coalter, 4' Rand. 74; Coe v. Turner, 5 Conn. 86 ; Shackell v. McCauley, 2 Sim. & Stuart, 79 ; Gibbs v. Cla-gett, 2 Gill & John. 14; Richardson v. McKinnon, Lit. Sel. Cases, 320 ; Boyd v. Hoyt, 5 Paige, 65 ; Terrell v. Craig, Hal. Dig. 168; Mowry v. Bishop, 5 Paige, 98.
    
      L. Lea, for appellee.
    1. It is settled that a defendant cannot answer a bill, and at the same time demur to it on the ground of multifariousness. The demurrer of Bond therefore was properly overruled. Gibbs v. Clagett, 2 Gill. & Johns. 14; Whaley v. Dawson, 2 Sch. & Lef. 371.
    2. The judgment enjoined was against the surety of complainant’s intestate. She was therefore interested, both as dis-tributee and as administratrix of her husband’s estate. That it was competent for her to make a contract with the plaintiff, binding him to stay the execution of his judgment, there can be no doubt. An entire stranger might have done so. She did make such a contract, and paid him a large sum for that purpose. Whether the money was her own, or belonged to the estate of her intestate, is wholly immaterial. Nor does it matter what motives of honor or conscience prompted the generous proposition, to pay a large sum of money for which she was in no way bound. The obligation on the part of Bond was, that he would enter a stay of execution on the records of the court. This he expressly stipulated to do; and this was the consideration for which the money was paid to him by Mrs. Jones. But, it seems he failed to enter the stay of execution, as he was paid to do, and the question arises, is the complainant entitled to have the money so paid appropriated to the judgment? Why not? Bond certainly has no right to object. Having violated the contract on his part, he has received and holds the money of complainant without the shadow of consideration therefor. That she has the right to recover it back is clear; and appellant’s counsel argue that she should seek her remedy in a court of law. But this would lead to needless litigation, to circuity of action. Complainant was entitled to an injunction, and chancery thus having jurisdiction of the cause, can most fitly adjust the rights of the parties.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed by Catharine Jones, administratrix of Edward W. Jones, deceased, to enjoin the collection, of a judgment. The judgment was obtained by Bond against Yernon Hicks, as the surety of Jones, the intestate. Upon the trial at law, it was shown, that the contract was usurious in its character, and the judgment was rendered for the principal sum alone, being $3199 99. The bill alleges that afterwards, in order to procure'indulgence to Hicks, upon the judgment, the complainant agreed to pay, and did actually pay, to the defendant, Bond, upwards of $1500, in consideration of which, he agreed to stay the execution as to one half the amount, for about one year, and as to the other half, about two years. It farther charges, that Bond, after receiving this amount of money for the indulgence to be granted, in violation of the agreement, issued the execution, before the expiration of the stipulated time, and was proceeding to enforce it against the estate of Hicks, who was then dead. Prays that he be enjoined from farther proceeding, and that the amount so paid, by complainant for the indulgence, might be credited upon the execution.

There were various other matters alleged in the bill, and several other defendants made; but it was demurred to, and the demurrer sustained, and the bill dismissed, except as to Bond. There is also a credit of $1000 claimed, over and above the amount paid for indulgence.

The answer admits the judgment, and that it was rendered for the principal sum only, and admits the payment by complainant of the sum of $1495, but denies that it was paid for indulgence to be granted upon the execution. Alleges that the note was originally, in truth and in fact, given for money loaned, or what was regarded as such by the parties, and that by the contract interest, at the rate of ten per cent., was to be paid, the then legal rate of interest for money loaned. States that complainant, after the rendition of the judgment, for the principal sum only, of her own accord, wrote to respondent, that the defence of usury was made, without her knowledge or consent, and that she was determined to pay according to the contract of her husband. That in pursuance of this voluntary determination of her own, they had called on a neighbor, who, in the presence of Hicks and the complainant, had computed the amount of interest, which, when thus computed, was the sum paid by complainant. That as matter of favor and gratuity, then, at the request of complainant herself, the respondent agreed to stay the execution for the period stated, and an in-dorsement for the stay was entered upon the execution. That afterwards, and after the death of Hicks, the complainant had herself informed him, that the estate of Hicks would be insolvent, and urged him to issue the execution, and make the money, without regard to the stay. That in pursuance of this request; he erased the order as to the stay of the execution, and caused another to be issued. He therefore resisted the entering of any credit upon the execution, for the amount so paid by the complainant. The court below directed the payment to be applied as a credit, as well as the sum of $1000 claimed' as a credit in the bill, but which the answer averred had been given. From this decree Bond appealed.

The testimony in the cause establishes the correctness of the facts, as detailed in the answer, in regard to the payment of the larger sum. The question therefore is, whether, taking them as true, the decree of the chancery court is right.

Money paid upon an usurious contract may be recovered back at law; so in equity, where there are circumstances to give the court jurisdiction. Comyn on Usury, 3 Law Lib. 80; 3 Hum. 666. The judgment at law in this case, fixed the character of this transaction, and stamped it with usury. The payment, therefore, was not valid in law. It was, on the part of the complainant, a misapplication of the assets of her decedent, and subjected her to the imputation of waste. Although not made by coercion, it was a payment without consideration, and against the law.

The principle of the decree below, that the respondent should give credit upon the judgment for this payment, is correct. The direction in regard to the mode of stating the interest in taking the account, is incorrect. Our statute points out the mode of computing interest, when partial payments are made. How. & Hutch. 614, 615. It directs the payment to be first applied to the discharge of the interest due, and the balance to the principal. This too is the mode previously established in equity. For this reason the decree must be reversed, and one entered in pursuance of this direction. The commissioner will ascertain the amounts paid, and the time of payment, and enter the credit at its date. He will also ascertain whether the sum of f 1000, admitted by the answer to have' been paid, has been credited already; if not he will give credit for it. In other respects the decree is correct, and the cause will be remanded for further proceedings.

It is insisted in argument, that the bill should be dismissed, because it is multifarious. If the demurrer stood alone, and, if it had been drawn with that view, it might have had that 'effect. See Boyd v. Hoyt, 5 Paige, 65. But in this case the answer is very full as to the point of usury, and the payment alleged in the bill, and the demurrer of Bond, is in its terms confined to “the other particulars,” in the bill contained. The rule is, in reference to this matter, that if the answer go farther, than merely to deny the combination, which is usually charged in the bill, it will overrule the demurrer. Mitford’s PI. 241.

Decree reversed, and the cause remanded.  