Polynesian., 1859-12-03
No. 81.

ter OF fact or Of law, under plea Of the general issue
and would not have been required to plead the statute
specially -
ms defence raises question of considerable nicety
%hicn mas never yet been settled in courts / ana
Tree 70 confess that, to my own mind this question
seemed at first difficult one to determine; but after
mature reflection have arrived at the conclusion that
the respondent liable for interest the rate Of two
per eeat per month, for the whole period
Ii no rate of interest lad been expressed in the note
cr mortgage 1t IS clear the complainant, in an acton
or the money could not have recovered interest at the
'e Vi Two per cent per month, by proving that the
respondent contracted, verbally pay interest at that
rae. lie must have shewn written contract to that
eect or been content to recover only the rate of in
erest allowed by the statute But that is not this case
Here the respondent by the promssory note did con-
tract IN writing, to pay interest at two per cent per
month on the loan. And now the question is, did the
subsequent verbal agreement when the loan was ex-
tended that the interest should continue to run at the
same rate as previously stipulated carry forward the
operation OF the original written contract to paw inter-
est at two per cent in the manner that the YER
pal agreement to extend the time for paying back the
ioan made the respondents promise pay on the lst
OF october 1893, evidenced by the note in effect
promise to pay on the lst Of October, 1859! think
it did.
his suit embraces but contract of loan between
the parties. There has been but one borrowing and
ehdng The verbal agreement for extension of the
credit beyond the LIST of October 1855 did not create
new borrowing and lending When the respondent re-
cetved the complanants money on the lst of Deem
Der, 1897, he stipulated in writing, to pay as cousid-
Grafton for the use of it, two per per month interest,"
up to the lst Of October 1885, when the principal sum
Was to be repaid. As that date was approaching the
respondent desired to have the use of the money upon
the same terms for year longer to which the COM
painant assented No note or mortgage was given
here was simply an extension Of the existing oan the
contract for which evidenced by the note and mort
gage previously given. A fair construction of the
agreement seems to me to amount to this the respon
dent agreed that in consideration of the compliments
agreeing to treat the note which payable on the lst
OF october 1885, as not payable until the 1st of Octo-
ber 1853, by forbearng to ask for the money sooner
Ae the respondent, would regard his written contract
previously made, to pay interest at two per cent rs
consideration for the Of the money as continuing in
full force during the extended time This it seems to
me- brings the respondents contract fairly within the
spirit and meaning of the statute referred to- There
contract in writing here to pay interest two per
cent. per month.
The matter will be referred to the Master TO compute
the exact amount due the note and mortgage allow
ing simple interest and report the for the nfor-
nation OF the Court, preparatory TO a final decree
Mr. Montgomery for Complainant.
Mr. Austin for Respondent.
November 18th, 1859