Hartson v. Davenport

2 Barb. Ch. 77 | New York Court of Chancery | 1847

The Chancellor

said, that although an injunction was prayed for, it was evident that no injunction could properly be granted, on this bill, to restrain the suit at law upon the bond; that the bill, if true, showed that the complainant had a perfect defence at law, and no discovery was asked for; and that, in such cases, this court should never interfere by injunction .to stay the suit which had been commenced at law, upon the bond, and to compel the plaintiff in that suit to come into this court to -litigate the question of usury. He said, however, that if the mortgage was usurious, and was a cloud upon the title of the complainant, the latter had a right, under the provisions of the act of 1837, to come into this court for the purpose of having the mortgage cancelled; but that would not entitle him to come .here for. an injunction, to prevent his adversary from trying the question of usury , before a. jury, in the suit at law upon the bond; unless a discovery was necessary, or some other obstacle existed to-the making of the defence there.

In reference .to .the terms upon which the vice chancellor had allowed ¡the complainant to amend, .the chancellor said -that .the decision appealed from was right; that where a party,-by a slip, had lost the opportunity to set up a mere technical or unconscientious defence, and came to the court for a favor, which it was necessary should be granted to enable him to set up such defence, the court would require him to do equity, as a condition of granting the favor asked; that, in this case, however, the refusal of the amendment would not deprive the complainant of the power to get rid of the usurious security, but would merely subject him to the uselesss expense of filing a new bill, without any benefit whatever to the adverse party.

The order appealed from was, therefore, affirmed, with costs.