We think the decree below was right. It is quite clear from the testimony that the new note was, by agreement of the parties, to be substituted in place of the third note of the series, and was to be entitled, in all respects, to the security and benefit of the deed of trust, as against the principal debtor, McNamara. The three hundred dollars retained by Condon cannot be treated as a payment. The purpose for which it was allowed might have constituted usury and nothing else. There is no case made which would justify the court in granting any relief on that ground.

The decree below must be affirmed.

dissented on the last point, holding that the $300 retained by Condon should be appropriated toward the payment of the amount due.