3 Paige Ch. 407 | New York Court of Chancery | 1831
The object of the 121st rule ivas to pre-elude the parties from raising the question, upon affidavits, as to the fact of an agreement, or consent, relative to the proceedings in a cause, which was not evidenced by writing; and thus to relieve the court from the necessity o£ settling such & question upon conflicting affidavits, as well as to prevent controversies between the solicitors. Much of the. contention between gentlemen of the profession arises out of paroi agreements of this kind, and is produced-by a misapprehension, by one party, as to what was actually intended to be conceded, or
In this case the defendants swear to merits ; and upon looking into their answer there is a probability that they have an equitable defence to some part of the claim set up in the complainant’s bill. As the default is satisfactorily accounted for, it is a matter of course to permit the defendants to make their defence upon equitable terms. But as the order to take the bill as confessed is technically regular, they cannot be permitted to insist upon any grounds of defence which are in the nature of a penalty or forfeiture. They will not, therefore, be let in to a defence of usury, so as to deprive the complainant of the amount actually due, with legal interest thereon. The defendants are to be permitted to serve a copy of the answer, which has been already filed by them, upon payment of the costs of entering the order to take the bill as confessed, and the costs of all subsequent proceedings in the cause, previous to the 28th of June last; and upon their delivering to the solicitor for the complainant a stipulation not to