
    Parker v. Cousins.
    October Term, 1845,
    Richmond.
    [44 Am. Dec. 388.]
    1. Usury — Discounting Commercial Paper — Deduction of Interest. — A private individual discounts commercial paper, and deducts the interest at the time of the discount. This is not usury.
    2. Same — Same—Same—How Computed. — On the discount of commercial paper, the month is reckoned at thirty, and the year at 360 days; and interest' of one half per cent, for thirty days is taken. This is not usury.
    3. Same — Same—Renewal.—On the discount of a note for the maker, it is agreed, that it may be renewed every sixty days, for a specified time, on the maker's paying the discount. It is so renewed, and upon the renewals, interest is charged twice for every 64th day. This is not usury.
    4. Usurious Security Given for Pre-existing Debt-Effect. — A usurious security is given for a preexisting bona Me debt. Though the usurious security is void, the pre-existing debt is still a valid obligation, and may be recovered.
    5. Partnership Note — Dissolution—Renewal of Note — Partners make a note, and then the partnership is dissolved. The partner who is authorized to settle up the business of the partnership, cannot renew the note in the partnership name, so as to bind the other partner.
    6. Same — Same—Same—Validity of First Note. — In such a case, though the last note does not bind the partner who has not executed it, the first note is still a valid security as ^against him, though it was surrendered when the last note was taken.
    7. Same — Same—Same—Same.—The renewed note being made in the partnership name, it cannot be inferred that the creditor intended to release the partner who did not execute it, and look alone to the party who renewed the note for payment.
    8. Joint Debtors — New Security from One — When Other Released. — The taking a new security from one of two joint debtors, will release the other, if in any case, only, where there is an agreement by the creditor, express or implied that he shall be released.
    This was an action of debt brought in the Circuit Superior Court of Petersburg, by Willis Cousins, against William P. Wyche, and William Parker, as late merchants and partners, upon the following note: $6000. Sixty days after date, we promise tó pay to Willis Cousins or order, without offset, negotiable and payable at the office of discount and deposite of the Farmers Bank of Virginia at Petersburg, six thousand dollars, value received.
    Signed,
    Wyche & Parker, by Wm. P. Wyche. The declaration contained a special count upon the note, and also the general counts for monej” lent, had and received, and paid laid out and expended; with counts for goods wares and merchandise, upon an account stated.
    Wyche being returned no inhabitant, the suit abated as to him; and Parker appeared, and filed a plea of nil debet, with an affidavit according to the act of assembly, in which he «denied the execution of the note by himself, or by any person in any wise authorized to act for him.
    The plaintiff joined issue on the plea; and the cause came on for trial at the November term of the Court for 1838, when the defendant demurred to the evidence. The jury found a verdict for the plaintiff for 6000 dollars, with interest from the 14th of July 1836, or such part thereof as the Court should think the plaintiff entitled to recover, subject to the demurrer to evidence.
    *From the evidence in the record, it appears, that as early as January 1833, Wyche & Parker were merchants and partners, doing business in the town of Petersburg; Wyche being the acting partner, and Parker living in the county of Sussex. On the 31st of January 1833, they were indebted to Cousins, on account of a note of theirs which had been transferred to him, and for money adyanced to Wyche to buy groceries, in the sum of 4887 dollars; and on that day he advanced them the farther sum of 1049 dollars; making due him. 5936 dollars; and he took their negotiable note for 6000 dollars, payable at sixty days. The sum then advanced was intended to make up the sum of 6000 dollars, less the discount on that sum for sixty-four days, taken according to the custom of the banks of Petersburg. This note was given under an agreement between Cousins, and Wyche acting for the partnership, that the note was to be renewed every sixty days, until Hay 1837, upon their paying the discount. The note was, accordingly, renewed at the expiration of every sixty days, and the days of grace; and sixty-four dollars were received for the discount thereon; the day of the date of the note, and the day when it fell due, being both counted; so that in fact, interest was taken twice for every sixty-fourth day; whilst the year was counted at 360 days, and the month at 30 days, according to Rowlett’s tables. These notes were regularly renewed until the 12th of May 1836, when the note on which this suit was brought was executed: but they were never deposited in bank, but were attended to by Wyche and Cousins themselves, or their clerks.
    Between the 31st of January 1833, and February 1835, the firm of Wyche & Parker, was changed several times, by the admission and withdrawal of another partner; and on such occasions, the name of the firm was changed; but these notes were always made in the same name of Wyche & Parker. At this last date, the ^'partnership of Wyche & Parker was dissolved; Parker selling out to Wyche, at 12 per cent, advance upon the capital he put into the concern; and Wyche binding himself to discharge all the liabilities of the partnership; and being authorized to settle up the business of the concern. The notice of dissolution was immediately published, and very soon afterwards the fact that Wyche was to pay the debts was known to Cousins.
    The note to Cousins continued to be renewed by Wyche, after the dissolution of the partnership, until he absconded in June 1836; and the only change in the mode of its execution was, that it purported to be signed “Wyche & Parker, by William P. Wyche.” All these notes were executed by Wyche; and it does not appear that Parker knew of the existence of this debt, until after the dissolution of the partnership. It appears that before Wyche absconded, Cousins informed Parker that he held the note, and Parker promised to see Wyche about it, and then see Cousins again; but that upon Parker’s speaking to Wyche on the subject, Wyche denied there was such a note, and Parker did not therefore return to Cousins.
    It was in proof, that the discount taken in this case was according to the usage of the banks and merchants of Petersburg; and that Cousins was engaged in the business of discounting commercial 'paper.
    Upon the demurrer to evidence, the Court below was of opinion for the plaintiff; and gave.-judgment against -the-defendant, for ■ 5950 dollars 73 cents, with legal interest thereon from the 14th of July 1836, till paid, and the costs. From this judgment, Parker applied for and obtained an appeal to this Court.
    Joynes, for the appellant.
    1. This action cannot be sustained upon the special count in the declaration. That is upon the note executed by Wjche after Cousins had notice of the dissolution of the part-376 nership. It cannot *be doubted, that as a general principle, the power of one partner to bind his copartner, ceases upon a dissolution of the partnership; and an original note, executed by one of the former partners for a partnership debt, would not bind the other, though executed in the partnership name. But a note given for the renewal of a former note stands upon the same footing. 3 Kent’s Com. 63; Vernon v. Manhattan Co., 22 Wend. R. 183,
    The authority to Wyche to settle up the business of the partnership, is only the usual authority; and that is always confined strictly within the necessities of the case. Abel v. Sutton, 3 Esp. R. 108; Lansing v. Ten Eyck, 2 Johns. R. 300; Sanford v. Mickles & als., 4 Johns. R. 224; Martin v. Walton - & Co., 1 M’Cord’s R. 16; National Bank v. Norton, 1 Hill’s R. 572. It may be said, that the agreement was that the notes should be renewed until 1837. But the original execution of the note, and all the-renewals of it, were by Wyche alone; and there is no evidence that Parker had any knowledge of the agreement. To bind Parker by Wyche’s agreement, Wyche must have had authority to make it; and it is not pretended that he had any other than the usual authority of a partner. It cannot be contended that this enabled Wyche to bind Parker to continue to renew the note after the dissolution of the partnership. When, therefore, that was terminated, Parker was not bound to renew the note in his own name, or to acquiesce in its renewal. Bank of South Car. v. Humphreys, 1 M’Cord’s R. 388. But not only was Parker not bound to renew the note after the dissolution of the partnership, but it is impossible to suppose that Cousins considered that Parker was a party to the renewed note. He knew that Wyche was to pay this debt; he knew that Parker had left with Wyche the partnership effects, for the purpose of paying the debts of the partnership; that Parker had no interest in its renewal, but much that it should be paid; and as the renewals were without *his knowledge, Cousins knew they were a fraud upon him.
    If the action cannot be maintained upon the special count, can it be sustained upon the common counts? It is insisted for Parker, that he has been discharged from the payment of this debt, by the dealings between Wyche and Cousins. I have en-deavoured to prove that this is the note of Wyche alone. When the note was renewed, it was in the course of business, as it was the right of the makers, that the old note should be given up. And this would especially be the case here, as the notes were not deposited in bank, but were attended to by the parties or their clerks; and it is certain that none of the old notes have been produced upon the trial of this cause. They cannot, therefore, be relied upon in this case as sustaining the liability of Parker.
    But whether or not the preceding note was surrendered or cancelled, it was extinguished by the execution of that one which succeeded it. When, therefore, Cousins accepted a note which only bound Wyche, and which Cousins must be presumed to know only bound Wyche, and which he did know ought onty to bind him, in satisfaction of the note of Wyche & Parker, that was a discharge of Parker from all liability, not only on the note, but for the debt. Sheehy v. Mandeville, 6 Cranch 2S3; Thompson v. Perceval, 27 Eng. C. L. R. 241; Story on Part. 239, 242; Smith & als. v. Rogers, 17 Johns. R. 340; Hart v. Alexander, 32 Eng. C. E. R. 71S; Winter v. Innes, 4 Mylne & Craig 101. In these cases, the note of one partner was given for a debt of the firm by open account. But there is another class of cases more resembling that now before the Court, where the creditor, holding the note of the firm, takes that of the continuing partner for it. If the old note is retained, then the presumption is that the creditor takes the new note as a security. But when the old note is given up, then it is to be inferred that the creditor agrees to take *the new note instead of the old one. Arnold v. Camp, 12 Johns. R. 409; Evans v. Drummond, 4 Esp. R. 89; Bedford v. Deakin, 3 Eng. C. E. R. 303; Vernon v. Manhattan Co., 17 Wend. R. S24; S. C. 22 Wend. R. 183. The cases of Dodge v. Dicas, 5 Eng. C. E. R. 397; and David v. Ellice, 11 Id. 201; will be relied on by the counsel for the appellee; but the principle of these cases was disapproved in Thompson v. Perceval, and Winter v. Innes.
    Wyche, having undertaken to pay the debts in consideration of the partnership effects, this is a sufficient consideration for the contract between Wyche and Cousins; and is precisely the contract of delegation of the civil law. Wharton v. Walker, 10 Eng. C. E. R. 302; 1 Archbold’s Ni. Pri. 24, 49 Eaw Libr. 80. But the execution of the new note was an additional consideration, because in some respects, it was a preferable security to the old one. Thus, the new note being taken on the day when the old one fell due, this last was of no use, except to prove the debt; whereas, the new one might be discounted, and money b.e raised upon it. The new note, moreover, gave the creditor a greater rate of interest for his money than he would have received on the old one. Both these advantages are matters of value; and the quantum of value is not for the consideration of the Co.urt, but of the parties. If there is any legal value, it is enough for the Court.
    But if there has been no valid novation of this debt, by the substitution of Wyche’s note for that of the partners, Parker is released by the dealings of Cousins with Wyche. After the dissolution of the partnership, Wyche was only the agent of Parker to settle up the business of the firm. Now, a creditor dealing with the agent, by taking his separate security for the debt of the principal, and giving time to the agent, so that the principal, supposing the debt settled, leaves with the agent property which otherwise he would withdraw, the creditor cannot, *on failing to receive his money from the agent, go back upon the principal. Reed v. White, S Esp. R. 122; James & als. v. Hackley, 16 Johns. R. 273; Muldon & als. v. Whitlock, 1 Cow. R. 290. But the case here is still stronger. By the agreement between Wyche and Parker, on the dissolution of the partnership, as between themselves, Wyche became the principal debtor, and Parker his surety; and Cousins was fully informed of this agreement. He, therefore, in dealing with Wyche, was dealing with the principal debtor; and anything which would release a surety released Parker. Oakeley v. Pasheller, 10 Bligh’s N. S. 548; Williams v. Bush, 1 Hill’s R. 123. And it has been expressly held, that a creditor taking another acceptance upon farther time, releases the endorser. Gould v. Robson, 8 East’s R. 576.
    It is a general principle, that taking interest in advance is usury. Corny, on Usu. p. 81 to 84; Agricultural Bank v. Bissell, 12 Pick. R. 586; Utica Ins. Co. v. Tillman, 1 Wend. R. 555; Same v. Kip, 3 Id. 369; Hart v. Wilson, 2 Id. 513. This Court has decided, that this principle does not apply to commercial paper discounted at bank; but in this case the bank was no party to the transaction. It was a simple loan of money by one man to another, upon which the interest was taken in advance, so that in fact Wyche & Parker never received but 5936 dollars, whilst they paid interest on 6000 dollars: and paid double interest on every sixty-fourth day. In Crup v. Nicholas, 5 Eeigh 251; and Thornton v. The Bank of Washington, 3 Peters’ R. 36, it was held, that under the usage of the banks, the taking double interest on the sixty-fourth day was not usury ; but it was conceded in both these cases, that if there was a contract not to pay, but to renew, that it was usury. Here, I submit, that under the agreement between the parties, according to the con-cessum in these cases, the contract was usurious.
    *Macfarland and G. N. Johnson, for the appellee.
    The first question to be considered is, whether the evidence sustains the special count. This depends upon the other question, whether Wyche was authorized to renew the note of Wyche & Parker, after the dissolution of the partnership. It is to be borne in mind, that the note was originally executed, and after-wards renewed during the partnership, by Wyche, when he certainly had full authority to do so; that he was authorized to wind up the business on the dissolution of the partnership; that the note was regularly renewed from that time to May 1836, without objection or complaint by Parker; and that whatever was the agreement between Wyche and Parker, Parker was responsible to Cousins for this delit.
    We admit it is a general rule, that after dissolution, one partner cannot bind the other by a new contract. But it is equally true, that he has power to do all acts necessary to wind up the business of the partnership judiciously. This involves the power to make contracts, because the condition of a partnership at the time of dissolution, renders it absolutely necessary. There are debts outstanding which are to be collected by a judicious employment of the'means best adapted in each case to attain the end. There are debts due from the partnership, and means are to be provided for their payment. There are goods on hand which must be sold. There are adventures not closed. The partnership business cannot, therefore,’ be settled, without the making of contracts; and there must be a discretion on the part of the acting partner.
    There is then a limitation to the general principle above stated; and the true rule will be found to be, that no contract can be made by one partner, after the dissolution, by which the others will be bound, unless such contract is an appropriate means, for settling up the business of the concern. For this purpose, the partnership, *and the power of one partner to bind the others continues. It is upon this principle, that it has been held, that after the dissolution, one partner may, by his acts or admissions ascertain the existence of debt due by the firm, so as to bind all the partners. Garland v. Agee’s adm’r, 7 Leigh 362; Brown’s ex’or v. Higginbotham & Co., S Leigh 583. So, one partner may give an acknowledgment of a debt of the firm, which will bind all. Wood & ais. v. Braddick, 1 Taunt. 104; Lacy v. M’Neile, 16 Eng. C. L. R. 185. So it has been held that an admission by one of the partners after the dissolution, would revive a debt barred by the statute of limitations. Whitcomb v. Whiting, Doug. R. 652. And this case has been recognized as law in England, by a series of cases, and also -in many of the States of this Union. It has been denied in Pennsylvania, and Kentucky, and by the Supreme Court, in Bell v. Morrison, 1 Peters’ R. 351. But in this case, the Court was divided, and the decision was controlled by the Kentucky authorities.
    Apply the principle of these cases to the case under consideration, and there would seem to be no room for doubt, as to the power of Wyche to renew the note so as to bind Parker. There is certainly nothing in this record to prove that Parker could have expected a debt which had existed for three years, whilst the input capital of both partners might be resorted to to discharge it, would be paid off within sixty days after the dissolution of the firm, and the withdrawal of the whole of Parker’s capital, and twelve per cent, upon it. If he did not expect it to be paid in that time, he must have expected it to be renewed; because he knew that a refusal to renew, would have prompted Cousins to enforce payment, which must have destroyed Wyche’s credit, whilst it subjected him to a burden which by the terms of the dissolution was to be borne by Wyche. The renewal of the note was therefore a necessary, and a judicious *measure in the settlement of the business of the partnership.
    If the Court shall be of opinion that Wyche had no authority to renew the note after the dissolution of the partnership; and so that the case’ cannot be sustained upon the special count; then we submit that upon the common money counts, we are entitled to recover either on the last note executed whilst the partnership existed, or upon the original consideration. This note is binding upon Parker, unless it has been paid, or he has been discharged by the acts of Cousins. It is not pretended that it has been paid. The only question, therefore, is, has Parker been discharged by the acts of Cousins? We say by the acts of Cousins, because a retiring partner cannot be discharged by any act or agreement of the partners, among themselves; but there must be an agreement on the part of the creditors, either express or implied to release him. Cary on Partn. 5 Law Libr. 70. In most of the cases it is considered a question of fact for the jury; and it is only when the facts are clearly made out that the Court will infer an intention on the part of the creditor to release the retiring partner. This case comes up on a demurrer to evidence by Parker. The inferences are, therefore, to be made against him; and as there are no facts to prove the agreement to release him, it is impossible that the Court can infer such intention.
    But it is insisted, that where a creditor of the firm gives up the note of the firm, and takes the note of the continuing partner, the retiring partner is discharged. But the principle upon which this rule is based, is, that such is the intention of the creditor. Does our case come within the rule, or the reason on which it is founded? If there has been no agreement by Cousins to take the note of Wyche in place of the note of Wyche & Parker, then the case does not come within the principle on which the rule is founded. If he has not taken *the note of Wyche, but took that of Wyche & Parker, then the case does not come within the rule. Indeed nothing could more clearly evince the intention of Cousins to hold Parker bound for bis debt, than his act of continuing to take the note in the name of the firm. Why thus take the note if he was content to have Wyche alone for his debtor?
    It is said again, that an agreement to release the retiring partner may be inferred from the dealings of the creditor with the firm. But where ■ there is a distinct expression of intention to hold the retiring partner bound, surely this inference cannot be made. To bring this case within the authority, Cousins should have left his money with Wyche, and must have dealt and contracted with him, as being his only debtor. Lord Abinger, in Hart v. Alexander, 32 png. C. H. R. VIS, held that the outgoing partner was bound until an agreement could be proved, or inferred from his continued dealings with the continuing partners. So in the case of Sheehy v. Mandeville, 6 Cranch’s R. 253. And in the case cited by the counsel on the other side of Vernon v. Manhattan Co., 22 Wend. R. 183, it is held that the retiring partner will not be discharged, unless the creditor so intended. All the authorities ascertain that it is not mere dealing or indulgence from which an agreement to release the retiring-partner will be inferred. Heath v. Percival, 1 P. Wms. 682; Peatherstone v. Hunt, 8 Elng.-C. B. R. 34; Bedford v. Deakin, 3 Png. C. H. R. 303.
    Having seen that an intention on the part of the creditor to release the retiring partner is necessary to effect it, it follow's of necessity, that the last note executed when the partnership existed, of the authority to execute which there is no doubt, is still a valid and subsisting securitj'. This is involved in the principle that an old contract is not merged in or satisfied by a subsequent security of the same character. This principle is clearly established by many cases, and among others by Cole v. *Sackett, 1 Hill’s R. S16. And the doctrine that an intention to release is necessary, is strongly illustrated by the case of Galt’s ex’or v. Calland’s ex’or, 7 Heigh S94. That was the case of a bond executed by one partner in the partnership name, which was held not to extinguish the original debt.
    But it is said, that by the agreement between Wyche & Parker, Parker became a mere surety of W’yche, and that he is on this ground released by the indulgence of Wyche, by Cousins; and for this the case of Oakeley v. Pashelter, 10 Bligh N. S. 548, is relied on. That case was decided on its peculiar circumstances; and does not sustain the general principle deduced from it. But if it did decide that partners by their agreement can convert one into the surety of the other, without the assent of the creditors, it is in conflict with Bedford v. Deakin, and Vernon v. Manhattan Bank. , The ground of usury relied on by the counsel on the other side, is the taking the interest in advance; and taking double interest for every sixty-fourth day. The first point is settled by the cases of the State Bank of North Car. v. Cowan, 8 Heigh 238; Bank of Utica v. Wager, 2 Cow. R. 712; New York Pire Ins. Co. v. Ply & als., 2 Id. 678; Stribbling v. Bank of the Valle3, 5 Rand. 132; Thornton v. The Bank of Washington, 3 Peters’ R. 36. The second ground is overruled by Crump v. Nicholas, 5 Heigh 251. These cases leave no doubt upon the question of usury, unless the agreement that the note might be renewed, varies the case. In Crump v. Nicholas, there was an understanding that the note -would be renewed, but the Court held there was no obligation binding both parties to renew, and therefore 'there was no usury. To exempt this case from the influence of Crump v. Nicholas, it must be shewn that the agreement to renew was obligatory upon both parties. The counsel on the other side has relieved us from the trouble of proving that such was not the agreement, by performing the task himself.
    *But if there was usurj in taking the interest in advance, or in taking double interest for every sixty-fourth day, that would not avoid the pre-existing debt; and Cousins is entitled to recover on that account, even if all the notes were usurious. Comyn on Usu. p. 187 to 195; Rankin’s ex’or v. Rankin’s adm’rs, 1 Gratt. 153.
    
      
      Usurious Security Given for Pre-existing Debt— Effect. — Though the usurious security given for a pre-existing bona Me debt is void, the pre-existing debtis still a valid obligation and may be recovered. For this proposition the principal case is cited in Moseley v. Brown, 76 Va. 426. See also, citing the principal case, foot-note to Rankin v. Rankin, 1 Gratt. 153.
    
    
      
      Partnership — Dissolution—Power of Partner. — The dissolution of a partnership revokes the authority of one partner to bind the partnership in reference to any new contract except in the settling and paying of the debts of .such partnership; and the agreement that one of their members shall wind up the business, does not enlarge bis powers so as to enable him to impose any new liability upon the firm, or create a cause of action against the other members. Conrad v. Buck, 21 W. Va. 407, citing Parker v. Cousins, 2 Gratt. 372. See also, citing the principal case for this proposition, Woodson v. Wood, 84 Va. 487. 5 S. E. Rep. 277. In Brook v. Washington, 8 Gratt. 257, the principal case is also cited.
    
    
      
       Joint Debtors — New Security from One — When Other Released. — For the proposition that the taking of a new security from one of two joint debtors, will release the other, if in any case, only where there is an agreement by the creditor, express or implied that he shall be released, the principal case is cited in Moses v. Trice, 21 Gratt. 568; Miller v. Miller, 8 W. Va. 550; Feamster v. Withrow, 12 W. Va. 62; Bantz v. Basnett, 12 W. Va. 794, 823, 837, 849; Bank v. Good, 21 W. Va. 465; foot-note to Blair v. Wilson, 28 Gratt. 165; dissenting opinion of Brannon, J., in Moore v. Johnson, 34 W. Va. 679, 12 S. E. Rep. 921.
    
   STANARD, J.

The efficacy of the objection to the judgment in this case, on the ground of usury, depends on the result of the enquiry, whether usury can be justly imputed to the original transaction between these parties. Por, if the discount of the first note was not usurious, that note constituted a valid debt, which would remain a just and legal demand, though usury could be legally predicable of the notes subsequently discounted, of which this debt founded in part the consideration. Indeed, though there was usmy in the discount of the first note, so far as the consideration of that note was a pre-existing and valid liability, the debt remained in full obligation, to the extent of that liability, though the note, as a security for the debt, should be null and void, by reason of the usury in the discount of it.

Without going farther back than the original note, I think, on the demurrer to evidence, the jury would have been justified in considering that note as offered by Wyche & Parker to Cousins for discount, and as discounted by him, retaining out of the sixty days note, sixty-four days interest in advance, and computing interest at the rate of the half of one per cent, for thirty daj's; that is, computing interest as if thirty days was a month, and three hundred and sixty days a year.

Supposing there had been no previous, transactions between the parties, but that. Cousins had given on the discount of a note of 6000 dollars at sixty days, 5936 dollars, the objections to the validity of the note on the ground of usury, are, 1st. That interest was taken for sixty-four days, and in advance. 2d. That in the computation *of interest, the year has been considered as equal to .twelve months, and thirty days as equal to the month; these being the elements of the computation from which Rowlett’s tables have been framed. That the first objection is not tenable, was decided by this Court in the case of Crump v. Nicholas, 5 Leigh 251; and by the Supreme Court in the case of Thornton v. Bank of Washington, 3 Peters’ R. 36. That the second objection is equally unavailing to fasten the imputation of usury on the transaction, was decided by this Court in the case of the State Bank of North Car. v. Cowan, 8 Leigh 238; and was so decided in Massachusetts in the case of the Agricultural Bank v. Bissell, 12 Pick. R. 586. If, then, the nett proceeds of the discount of the note, that is, 5936 dollars, had been paid to Wyche & Parker in money, the discount would not have been usurious. In this case the proceeds of the discount was in part applied to an existing debt of the makers of the note, and the residue thereof paid in money. Does this feature of the transaction give it a character different from that which it would have borne had the whole amount been paid in money? That it does not, is, I think, free from all doubt. The full amount of the discount is in each case accounted for to the makers of the note. The only difference is, that in respect to the part the makers previously owed, the money is already in their hands, without the tradition of it from the hands of the discounter or lender. Indeed, the discount of a new note to meet one previously discounted and at maturity, a transaction of such familiar occurrence, is the example of the application of the whole proceeds of the discount to an existing liability; and on the question of usury on such new discount, it never has been seriously contended, that the application of the proceeds of the discount to the existing note, rather than the payment of the proceeds in money, had the slightest influence. On a question which has never been seriously raised, judicial decisions cannot be expected. The case of Crump *v. Nicholas, 5 Leigh 251, furnished the occasion to raise such a question; and that case shews, that no one thought it could be even plausibly maintained; and that if it had been propounded it would have been condemned.

The original note, therefore, was valid: and by it Wyche & Parker became the debtor of Cousins, in the sum of 6000 dollars. The subsequent renewal of the note for that sum, during the cqntinuance of the partnership, notwithstanding that on the renewal the notes were taken, as the original note had been, by deducting the interest for sixty-four days computed as it was on the discount of the original note, on each renewal in advance, was not usurious; Crump v. Nicholas, 5 Leigh 251; and Wyche & Parker was, at the dissolution of the partnership, indebted in the amount of the then existing note. Besides, could the objection on the ground of usury be maintained in respect to the renewed notes, it would have annulled them; but that would not have cancelled the pre-existing debt. The new security would have been void, but the pre-existing debt would not have been abrogated. That would have remained unsatisfied by the nugatory and void security, and the creditor would have been remitted to his original title thereto, and remedy therefor. Comy. on Usu. 187-194; Gray v. Fowler & als., 1 H. Bl. R. 462; Rankin’s ex’or v. Rankin’s adm’rs, 1 Gratt. 153.

There being a valid debt, existing at the dissolution of the partnership of Wyche & Parker, the question is, has any thing which has since occurred absolved Parker from the responsibility? The elaborate argument of the counsel for the plaintiff in error, though most creditable to his industry and ingenuity, is unavailing to justify an affirmative answer to this question. Without entering into the enquiry, whether in any case the unperformed promise, oral or written, by one of two already bound for the same debt, by a like promise to the *same party, can discharge, or be pleaded, or used in evidence to bar the legal remedy- on the original promise, I think it may be safely affirmed, on principle and authority, that such discharge will not be effected, nor such bar be created, unless the parties making and accepting such new promise intended or stipulated that such discharge or bar to the former assump-sit should be the consequence of the making and acceptance of the new several promise. The new note given by Wyche in the name of the old partnership, (whether the new note proprio vigore, in strict law bound Parker or not,) is plenary evidence that neither Cousins-or Wyche stipulated, or expected, or intended to discharge Parker from his responsibility for this debt. So far from this being intended, it is demonstrable that it was intended to continue his responsibility. Had Cousins accepted the individual note of Wyche for this partnership debt, a foundation would have been laid for the enquiry, whether it was taken in discharge of the partnership responsibility; and to the determination of the question, how far it operated a discharge, the acces-sional enquiries.into the known position in which the parties were placed by the terms of the dissolution, the conduct of the parties inter se, the influence of that conduct on the measures of the retiring partner in retaining securities or enforcing the liabilities of the other partner, would be most proper and relevant. But here no act has been done by the creditor indicating any purpose to absolve Parker, or calculated to mislead him; and no pretence even, that he has taken or surrendered any security from, or remedy against Wyche, or attempted, much less ever interrupted Parker in any attempt to enforce the obligation of Wyche, as between him and Parker, to do that which Parker was as much bound to the creditors to do as Wyche, discharge the liabilities of the partnership.

If the notes, made after the dissolution by Wyche in the name of the partnership, did not (and think they *did not) per se bind Parker, they did not perform the function they were intended to perform, and they should not have the effect of discharging the pre-existing debt. The only foundation for the hypothesis that the new note was accepted in discharge of the former, is, that the parties considered it as but a new obligation of the same parties for the same debt, and being so, the retention of the former evidence of the debt was supererogatory. Not performing this function, the consideration for the inferred stipulation to, discharge that debt, also fails, and the debt remains. No agreement of Cousins to discharge a former note but in consideration of the combined obligation of the parties on the new note, can be inferred ; and if such obligation was not continued by the new note, it cannot, against the intent of the parties, operate a discharge or satisfaction of the debt due on the old, and intended to be continued by the new note.

The strongest position that the plaintiff in error can take still leaves it predicable of the case, that the consideration of the new note was a partnership responsibility, and that it was given and accepted as binding on both of the former partners, but was, by reason of the defect of the power of the one who gave it to bind in that form the other partner, void of obligation as to that other. Now in the stronger case in which a partner gives a bond for a partnership simple contract responsibility, by which the other is not bound, and as to the partner giving the bond the simple contract is merged in the higher security, and pro tanto, there is an actual novation, and radical change of the original obligation, yet if the bond be in the name of the partnership, and thus furnishing satisfactory evidence that it was not the purpose of the parties, in giving and accepting the bond, to discharge the debt as to the partnership, the partnership liability still remains. The only consequence of the several liability of one of the partners on the bond might *be a change of the mode of enforcing the partnership liability. In such case the bond, if considered as a merger of the simple contract as to the party who gave it, would oppose a technical difficulty to the enforcement of the claim at law on the simple contract of the partnership; and if so, a Court of Equity would be the proper resort for redress against the partnership ; and there redress would be had. Galt’s ex’or v. Calland’s ex’or, 7 Leigh 594.

It is not perceived by what process of calculation the Court below reduced the amount of 6000 dollars principal, as found by the jury, to the sum of 5950 dollars 72 cents, for which the judgment was rendered. Some abatement of the principal of 6000 dollars might have been properly made, but I do not perceive that any abatement that could be justly claimed, or legally required, could equal the amount made by the Court. But of this excess of the abatement, the defendant in error does not, and the plaintiff in error has no right to complain ; and therefore it is not a cause for the reversal of the judgment. I am therefore of opinion that the judgment should be affirmed.

The other Judges concurred in the opinion of Stanard, J.

Judgment affirmed.  