Dew v. Hamilton

23 Ga. 414 | Ga. | 1857

By the Court. —

Lumpkin, J.

delivering the opinion.

[1.] The equity of the bill is based upon the foregoing facts, and it is clear, if the allegations are true, and the demurrer admits them to be true, the debt sued on, is not only tainted with usury, but steeped in it. Taking the statements of the complainant as true, and the bill is as replete with equity as the judgment is with usury.

[2.] As to the want of jurisdiction in the county of Cass, the bill is not aggressive, but strictly defensive. It prays for a new trial and to be allowed to make that defence to the note, which would have been made when judgment was rendered, but for the reasons assigned in the bill. It seeks no decree beyond this, against the defendant. The Court in Cass had then jurisdiction.

It is suggested that there is no averment in the bill, that the complainant would have made the defence of which he now seeks to avail himself; and that he had intended to have made it The bill shows that the defence had already been filed, and it is charged that it would have been made available, but for the conduct of the plaintiff, in lulling the defendant to sleep, and then taking advantage of the trust and confidence which he reposed in him.

Under the circumstances, we are of the opinion that the Court below was right in overruling the demurrer, and requiring the defendant to answer.

Judgment affirmed.