¶1We agree with the learned judge of the court below, that what was paid by Guilinger to Eberman was paid on the contract of June, 1879, and back of that contract we cannot go to look for usury in the judgment of the savings bank.
¶2No fraud was practised upon Guilinger, and, even if something were included in the contract that he ought not to have paid, he certainly cannot retain the benefits which he gained by that contract, and at the same time recover back the money paid or any part of it. In order to do this he must restore to Eberman, the assignee, what he got from him; but until he does this his attempted rescission, in whole or in part, comes to nothing.
¶3The judgment is affirmed.