Royster v. Watkins, 3 Port. 436

Royster v. Watkins

3 Port. 436 | Ala. | 1836

Hitchcock, C. J.

This is a bill, in Equity, to enjoin a judgment at law, on the ground of usury.— The bill was .dismissed by the Circuit Court of Madison Co'unty, and the case’ comes here, on a writ of error, to reverse that decree.

The facts disclosed in t’he bill make out, undoubtedly, a case of usury — every one of which, unfortunately, for the complainant, were within his knowledge, before the rendition of the judgment; notwithstanding which, the complainant voluntarily gave *438a power of attorney, to confess the judgment, which he now seeks to avoid; and without stating any legal excuse, either for giving the power of attorney, or. for not applying, before, judgment, to avoid the contract.

It is a well settled principle, that a Court of Chancery will not relieve, against a judgment at law, on the ground of its being contrary to equity; unless 4he defendant in the judgment was ignorant of the fact in question, pending the suit; or, it could not be received as a defence at law: or, unless, without any neglect or default, on-his part, he was prevented, by fraud or accident, or the ac't of the opposite party, from availing himself of the defence.a

The facts relied upon, by the complainant, are the alleged collusion of Watkins and Meux, and the threat, by Watkins, that he would sue on the nóte, if the defendant did not give a power of attorney, to confess judgment.

These, so far from furnishing an excuse, for not going into equity, till after the judgment, furnish the strongest reasons why he should have applied himself to equity, .before the judgment. The complainant comes into Equity, entirely too late. Although it may be a hard case; yet, the complainant has made it so, by his own neglect; and ne cannot relieve him.

It is contended, that this'Court cannot look into the equity of the bill, as the assignments ar'e confined to the refusal of the Court below, to grant the motions for the attachment, and the order to take the testimony of Meux and Irby.

This reasoning cannot be sustained. We are obliged to look into the bill, to ascertain whether the *439motions should have been granted ; and, in doing so, if we find there is no equity in the bilí, dt furnishes all the reasons that are necessary, to dispose of. the case.

It would be idle to reverse and remand the case, when we are satisfied, that the'bill itself, would.be bad, on demurrer.. Besides this, it is .conceived, that the fourth assignment'brings the equity of the bill, directly befpre the Court.

Let the decree be affirmed.

Hopkiiís, J., not sitting.

6 Johns Rep. 87