45 Conn. 540 | Conn. | 1878
If the petitioner could compel the respondent to prosecute to final judgment the suit he has commenced on the note in question, then it might be said with truth that he has adequate remedy at law for the grievances set forth in his bill. But the petitioner has no such power over the respondent or the suit; neither does the law furnish him any means of acquiring it. The suit is under the entire control of the respondent, who may withdraw it at any time before the verdict of a jury or a finding of the facts by the court; and, abiding his time, he may take an unconscionable advantage of the petitioner when his witnesses are dead or have been scattered to parts unknown, or when the facts with regard to the fraud shall have faded from their memory. The note has seventeen years of life from its date; and if it be true, as is set forth in the bill, that it was obtained from the petitioner by fraud, it may well be expected that the respondent will use all the means in his power to prevent the petitioner from exposing its character on the day of trial; and to this end he will take all the advantage to be gained by delay to accomplish his purpose. It is clear therefore that we cannot take into account the fact that there is a suit at law now
If the note in question showed upon its face the fraud alleged in the bill, so that however late a suit might be brought the petitioner could not be deprived of his defense, it might with some propriety be said that the petitioner has adequate remedy at law. Judge Story, in the second volume of his Equity Jurisprudence, § 700 a, says: — “Where the illegality of the agreement, deed or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity to direct it to be canceled or delivered up would not seem to apply; for in such a case there can be no danger that the lapse of time may deprive the party of his full means of defense.” It would seem to follow that if the illegality did not appear upon the face of the instrument, courts of equity would interfere and order a cancellation of it. Indeed, in section 700 of the same volume the author says: — “If an instrument ought not to be used or enforced, it- is against
The case of Ferguson v. Fish, before referred to, does not differ in principle from the present one, but substantially controls it. That was a case where the consideration for giving the draft had entirely failed. This is a case of fraud in procuring the note. The draft in that case was negotiable, but past due. The note in this case is non-negotiable. A decree of cancellation was passed in that case, and one should be in this, if the allegations in the bill shall be proved true.
We advise the Superior Court that the bill is sufficient.