I concur in what has been said in the opinion in chief, except that relative to what is referred to in the opinion as the third contention of Jones.
This is the second appearance of this case in this court, and the opinion rendered on the former appeal will be found in131 Miss. 545, 95 So. 519. As set out in the opinion then rendered:
"Jones borrowed the sum of four thousand five hundred dollars from the defendant, Brewer, on February 25, 1914, and executed his ten promissory notes therefor, each being for the sum of four hundred fifty dollars, plus eight per cent interest on the debt due; that is to say, the first note included eight per cent. interest on the four thousand five hundred dollars to January 1, 1915, the second note included interest on four thousand and fifty dollars from January 1, 1915, to January 1, 1916, and so on through the series."
Brewer admits that all of these notes have been paid except, and his effort here is to collect, the last four notes. *Page 153
According to the allegations of the bill, usury was collected from Jones by Brewer on some of these notes that have been paid; and this court, in its former opinion, held that a payment on one of the original notes was a payment on the entire original indebtedness, and directed the usury collected by Brewer to be applied accordingly. When the evidence came in on the return of the case to the court below, it appeared that usury was not collected by Brewer on any of the original notes, the facts being that when the first of these notes, which was for the sum of seven hundred sixty dollars matured, Jones made a payment on it of one hundred thirty dollars and took up the note by the execution of a new note for the sum of one thousand eight hundred dollars, which included the balance due on the old note, additional money then loaned Jones by Brewer, two other debts not connected with the four thousand five hundred dollar debt due from Jones to Brewer, and interest. When the second of the original notes, which was for seven hundred seventy-four dollars, matured, it was taken up by a new note executed by Jones for one thousand four hundred seventy-four dollars, which included the old note, a new loan, and interest. These two notes and interest thereon were paid by Jones.
The court below held that these two notes were tainted with usury and applied all interest paid thereon to the principal, which resulted in an overpayment thereof by Jones of several hundred dollars, which amount the court further held could be set off by Jones against the four notes of the original series which Brewer here seeks to collect. No interest was allowed Jones on the usury held to have been paid by him.
His contentions here are: (1) Since one of the original series of notes was embraced in each of the two new notes included by him, one for one thousand eight hundred dollars and one for one thousand four hundred seventy-four dollars, the payment of usury thereon by him was a payment of usury on a part of the original debt of *Page 154 four thousand five hundred dollars, and that consequently, all interest paid by him on any of the original series of notes should be forfeited; and (2) if mistaken in this, he should have been allowed interest on the amount of usury paid by him on the two new notes.
I concur in the holding of the court below on the first of these contentions, but I am of the opinion that Jones should have been allowed interest on the usury paid by him on the two notes. Usury in excess of the principal of the debt on which it is paid becomes, when paid, a debt due by the recipient thereof to the person paying it; and, under the statute, of course, bears interest at six per cent.
We are not confronted with Jones' right to interest on this set-off at a rate in excess of that borne by the debt against which he seeks to set it off.
I am unable to concur with my associates in holding that the amounts overpaid by Jones on the one thousand eight hundred dollars and one thousand four hundred seventy-four dollars notes were payments by him on another and different debt, to-wit, the unpaid notes of the original debt, and, if I am correct in so holding, the rule which regulates the application of payments, on which my associates, in effect, decide this branch of the case, has no application here. The difference to Jones whether the amounts overpaid by him on the one thousand eight hundred dollars and one thousand four hundred seventy-four dollar notes are held to be payments on the four thousand five hundred dollar debt, or are allowed to him by way of set-off, may here be of no consequence, but whether the rule regulating the application of payments or that of set-off should be applied in cases of this character may in other and future cases materially affect the rights of litigants.