
    George A. Armstrong v. G. W. Smith.
    Promissory Note — Usury.
    The surety on a promissory note has the right to have all payments made on the note applied as credits.
    Practice.
    Where in a suit on a note the law and the facts are submitted to the court its judgment thereon is final, and may be appealed from without first making a.motion for a new trial; such preliminary step is only necessary in cases where trials have been had and verdicts rendered by a jury.
    APPEAL, FROM SHELBY CIRCUIT COURT.
    February 27, 1877.
    
      Caldwell & Harwood, for appellant.
    
    
      Bullock & Beckham, for appellee.
    
   Opinion by

Judge Pryor:

Smith gave to Tevis a check for the amount of the note sued on, and Tevis in return gave to Smith his check for a like amount. The one check balanced the other and left Smith with his original note, or the amount due thereon unpaid. There was no payment of money by Tevis to Smith or any money handed by Smith to Tevis by way of loan. The parties considered the' debt paid by reason of a transaction when no money passed, and which, in fact, left the parties in the exact position they were in before the checks were given. It was an effort to evade liability on the part of Smith for the usury, in the event the debtor saw proper to assert his claim to it. The surety has the right to have all payments made on the note applied as credits. No motion for a new trial was necessary, the law and facts having been submitted to the court. The judgment was final, from which an appeal can be taken without the preliminary steps required in cases where trials have been had and verdicts rendered by a jury. Judgment reversed and cause remanded for further proceedings consistent with this opinion. Union Insurance Co. of Louisville v. Groom, 4 Bush 289.  