By the Court
Flandrau, J.It is clear from the allegations in the complaint, that the Plaintiff has fully paid the note which the Defendant holds against him. The note was payable in eleven months from date, with interest at the rate of three per cent, per month. There was no stipulation that it should draw that rate until paid, or after maturity; but simply that it should draw interest at three per cent, per month. A note in these terms draws interest from date till due, at the stipulated rate, and if not then paid, damages at the rate of seven per cent, per annum may be recovered for *126the non-payment. Apply all the payments at the dates respectively alleged,, and they make np the sum due, and something over, according to the most enlarged terms of the note. "We then have a note in the hands of the defendant overpaid, and upon which the Defendant claims a sum due of one hundred and fifty dollars, and refuses to give up the note. Do these facts constitute a cause of action against the Defendant; and in favor of the Plaintiff, for the cancellation of the note, and the recovery of the sum overpaid ? Upon the ordinary rules of equity discussed by the counsel for the Defendant, we would not hesitate to say no. There are no facts alleged that show the necessity of applying to a Court of Equity for relief. The, note is past due, and consequently cannot be passed into third hands, discharged from the defence of payment. Nothing, in fact, is shown, except that the note is paid, which is a good legal defence, available in a court of law, and where those courts afford an adequate remedy, upon a given state of facts, courts of- equity have no jurisdiction.
There is a statute in this State, however, (Comp. Stat., p. 629, sec. 35,) which seems to have been passed to meet exactly such cases as the one at bar. It is in the following words:
“ An action may be brought by one person against another, for the purpose of determining an adverse claim, which the latter makes against the former, for money or property upon an alleged obligation, and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which the Plaintiff is bound as surety.”
In this case the Defendant holds the note of the Plaintiff, which the latter claims is overpaid, the Defendant claiming adversely that there is due upon it the sum of one hundred and fifty dollars. To settle this adverse claim this action is brought; we think the case is comprehended by the statute. It is unnecessary, therefore, to determine whether the facts make out a'cause of action for the recovery of the sum overpaid. on the note, and we purposély omit to pass upon that point. One good cause of action being disclosed, the demurrer to the whole complaint was improperly sustained, and the judgment rendered thereon for the Defendant must be reversed.
*127The case is remanded, with leave to the Defendant to answer over within ten days after notice of the jugdment of this Court.