Opinion on Application for Rehearing.
The many details in this case have made another examination necessary.
*388Plaintiff, in one of the statements of record, shows “to one-half of account of S. W. and B. G. Vance, one thousand four hundred and two dollars and fifty cents.” This is an additional amount to which the defendant is entitled.
In our opinion on the rehearing is the following:
We have reduced the interest charged'from twelve per cent, to five per cent.
In the decree by a slip of the pen the following was written: “Diminished by deducting seven per cent, of all interest charged to Vance.” This is corrected and the decree will now read that the reduction of interest is from twelve per cent to five per cent, ■as written in the body of the opinion.
Appellant directs our attention to the ten thousand dollars loaned by E. Jacobs.
We extract the following statement from appellee’s first brief:
April 7,1892. To balance shewn by account rendered....................................$10,367 77
To one-balf o£ account of S. W. & M. B. G. Vance, $2805, one-balf................. 1,402 50
(The item allowed above,)
To credit matter, credit given Vance & Wycbe..............................................$10,000 00
To rent year 1891 ................................................................................................ 1,300 00
'To judgment, Dreyfous & Co............................................................................ 611 01
We have heretofore decided that these $10,000 were properly charged to Vance.
It is incumbent upon plaintiff to prove that this amount of $10,000 has been paid or settled in some way, otherwise he must stand charged with it. His right to prove payment or settlement of this amount is reserved. This is one of the issues upon which the judge a quo will have* to pass.
As to items as follows, viz.:
January 1,1887. Improvements on. South Buck Hall..................................... $250 00
January 1, 1889. Improvements on South Buck Hall........................ 250 00
January 1, 1890. Improvements on South Buck Hall........................................ 250 00
Vance is entitled to these three credits for these improvements— no more.
The appellee sets forth in his brief, that five per cent., if allowable at all as commission for attorney’s fees, should not exceed five per cent, on the amount as will be fixed by decision of this-court.
The fee is thus limited; that is, the fee is allowed on the amount the court finds is due by Vance to Zeigler or his transferee.
The counsel of the appellee in his brief says:
*389“ That the court should not require Vance to deposit these notes in court a qua as a condition precedent to his right to a credit for their value to be ascertained by testimony. But that, possibly,. Vance might induce the holders of these notes to present them in court a qua on trial of proceedings to ascertain their value for purposes of identification and to show who is holder at that time.”
We do not think, after further consideration, that it is essential for Zeigler, the defendant, or Vance to surrender the deed of trust or the two notes of six thousand dollars each, signed by Vance as maker.
The investigation can be held as to value and credit given to Vance of the amount of this value, without the necessity of having, the papers in court.
To Zeigler is reserved the right of surrendering the notes and deed of trust, and upon that surrender of being relieved from having the claim reduced on account of the notes and deed of trust being outstanding.
But if he does not produce and surrender the said notes and deed of trust, then, in that case, the value is to be ascertained, and he is to be charged with their value as ascertained.
It is therefore ordered, adjudged and decreed that prior deerees are in force save as amended in this decree.
That the sum of fourteen hundred and two dollars and fifty cents is allowed as an additional credit to defendant.
That the reduction of interest is from 12 per cent, to 5 per cent.— i. e., interest at rate of 5 per cent, is to be computed, instead of 12 per cent.
It is further ordered, adjudged and decreed that right is reserved to plaintiff to prove that the ten thousand dollars loaned by Jacobs, to Zeigler, and by the latter to Vance & Wyche, and subsequently charged to Vance have been paid or settled.
It is further ordered, adjudged and decreed that plaintiff be allowed three years’ credit for improvements of South Bupk Hall.
It is also decreed that the attorney’s fee be limited to 5 per cent, on the amount, when fixed'by the decision of court.
And lastly, it is ordered and decreed that plaintiff be relieved from the necessity of producing and surrendering the notes of six thousand dollars each, and that Zeigler be relieved from the necessity of producing and surrendering the deed of trust.
*390It is ordered that to Zeigler is reserved the right of surrendering the notes and deed of trust, and upon that surrender of being relieved from having the claim reduced (as to their value), on account of the notes and deed of trust being outstanding.
It is further ordered and decreed, if he does not produce and surrender the said notes and deed of trust, then, and in that case, the value is to be ascertained, and he (Zeigler) or defendant is to be charged with their value, as ascertained.
The questions have been argued orally and by brief; a rehearing would serve no purpose.
It is therefore refused.