1 Paige Ch. 429 | New York Court of Chancery | 1829
The Chancellor :—Without examining the question whether the new facts are admissible as evidence, under the present state of the pleadings, I am satified the other objection, taken by the complainants’ counsel, is fatal. If a party seeks equity in this court, he must do equity. If he comes here to obtain a discovery, or to ge’t rid of a usurious contract, he must consent to pay the money actually lent, with legal interest. If the defendant sets up a
The defendants subsequently applied to amend their answer for the purpose of setting up a general defence of usury, to enable them to establish a different kind of usury from that set up in their former answer. The motion was argued by
S. A. Foot, for the defendants:—He contended that the application now was to enlarge the answer. Usury had been set up therein generally, without a knowledge of the particular facts. These facts have since been discovered. The draft answer, which was prepared by the defendants’ counsel and miscarried in the post-office, contained substantially what was now asked to incorporate in the answer by way of amendment. Mistakes in pleading should always be corrected where justice will be administered by so doing. Usury is a meritorious defence; and the defendants being
J. Hoyt, for the complainants:—Application to amend pleadings are not granted except upon terms; (Beekman v. Waters, 3 John. Ch. R. 410; Shepherd v. Merrill, 3 John. Ch. R. 423; Thorn v. Germand, 4 John. Ch. R. 363; *Bowen v. Cross, 4 John. Ch. R. 375.) The party asking to amend his answer, must satisfy the court that at the time of putting in the answer, he was ignorant of the facts which he seeks to insert in it by way of amendment; (Liggon v. Smith, 4 Hen. & Munf. 407; Const v. Barr, 2 Meriv. 57.) An amendment will not be granted where there has been a mere mistake of law; (Pearce v. Grove, 3 Atk. 522; S. C., Ambler, 65.) And where a party has not set forth his defence, in consequence of an inability to do it with precision he cannot amend; (Tennant v. Wilsmore, 2 Anstr. 363.) An amendment must be moved for, the first opportunity, and must be sworn to. It must also be served upon the opposite party; (Rodgers v. Rodgers, ante p. 424.) The Court of Chancery will not relieve against a usurious contract, unless the party seeking relief does equity by paying the sum actually advanced; (Rodgers v. Rathbun, 1 John. Ch. R. 367; Tupper v. Powell, 1 John. Ch. R. 439; Fanning v. Dunham, 5 John. Ch. R. 122.) The court will not, therefore, upon this principle, grant the amendment moved for by the defendants in this case, unless they consent to pay the sum equitably due. The effect of the amendment would be to enforce a penalty or forfeiture; a proceeding which equity never aids; (Livingston v. Tompkins, 4 John. Ch. R. 431; Mason v. Gardiner, 4 Bro. C. C. 436.) It is a settled rule, that if a defendant mispleads the statute of usury, he shall be bound by his plea; (Parker v. Rochester, 4 John. Ch. R. 332; Hamilton v. Boiden, 1 Mass. Rep. 50.) In Goff v. Popplewell, (2 Term. Rep. 707,) an amendment
The Chancellor :—When this case was before me, on the petition to re-examine Mark Spencer as a witness, I did not examine the question whether the new facts proposed to be proved by him were admissible under the present state of the pleadings. That question was distinctly raised and argued on that occasion by the complainants’ counsel; but as I was *clearly with him on the other points, I did not consider it necessary to look farther. The defendants being probably satisfied that this objection was well taken, notwithstanding their appeal to the Court of Errors from the decision of this court refusing such re-examination, now ask to amend their answer for the purpose of making the new evidence material, if they should succeed in reversing that decision. The application at this time appears to me premature and unnecessary. If the former decision of this court is reversed, it necessarily follows that the new testimony ought to have been received, and was proper under the pleadings as they now stand. If that decision is affirmed, the witnesses cannot be re-examined, and the amendment would be useless. As the case now stands, it is res adjudicata in this court, that the rule to close the proofs is not to be opened; and while an appeal from that decision is pending, this court ought not to do that indirectly, by an amendment, which it could not do directly. The defendants should have dismissed, their appeal and made an application here to amend and to re-examine the witness to the new matter, or should have waited until that appeal was determined. But, as both parties have requested that the question may be decided now, I shall dispose of it without waiting for the decision of the Court of Errors.
The former application was denied on the ground that the relief prayed for in the petition was not a matter of strict right, as the proceedings on the part of the complainants to close the proofs had been perfectly regular. The
The power of the court to allow amendments, in futherance of justice, at anytime before a final decree, is unquestionable. They are always in the discretion of the court; but the exercise of that discretion must be governed by those general principles of equity by which the proceedings in this court are regulated. One of those principles is not to lend the aid of the court to enable a party to enforce a forfeiture, *or any thing in the nature of a penalty or forfeiture. (Livingston v. Tompkins, 4 John. Ch. Rep. 415.) If a party sues in a court of law upon a usurious contract, the defendant has a right to set up the legal defence, and insist upon the forfeiture, if he can establish the facts. But if he cannot avail himself of that defence without the aid of a court of equity, when he applies for equitable relief, he must consent to waive the forfeiture, and pay or agree to pay the amount actually due. (Rogers v. Rathbone, 1 John. Ch. Rep. 367; Tupper v. Powel, id. 439; Fanning v. Dunham, 5 John. Ch. Rep. 122. And the same rule prevails when he applies for equitable relief to a court of law. (Fitzroy v. Gwillim, 1 Term Rep. 153.) It makes no difference that a suit upon the usurious contract is brought in this court. If such a suit is brought here the defendant may set up the usury in his answer, and if he can establish it by proofs in the ordinary way, it will be a complete bar to the suit. But if he asks for the interposition of the extraordinary or equitable powers of this court to aid him in such defence, he must consent to do equity before he can obtain that aid. Thus in Mason v. Gardiner, (4 Bro. Ch. Cases, 436,) where a suit was brought in Chancery, upon securities which were tainted with usury, and the defendant filed a cross bill to discover the usury, it was held bad on demurrer, because he did not offer to pay the sum
But there are some extraordinary features in this application which show the danger of permitting a party to set up a new defence after the testimony in the cause has been taken. The defendants have put in a joint answer, in which some of them swear positively to, and the others as to their belief in a state of facts which is wholly inconsistent with the facts they now seek to avail themselves of under the amendment asked. They do not pretend there was any mistake in the allegations in their former answer; but still insist those allegations are true, and that the defence which they now seek to establish is not true in point of fact. Yet as the complainant’s witness, who swears in opposition to their answer, has stated those matters, they wish to amend their answer so as to avail themselves of them, if the court should be satisfied their present answer is incorrect in point of fact. To avoid the difficulty of swearing to a defence which they do not believe to be true, they propose, in their supplemental answer, to state generally, that the complainants’ demands were founded upon a usurious consideration, without specifying the particulars.
The motion must be denied with costs