Barker v. Elkins

1 Johns. Ch. 465, 1815 N.Y. LEXIS 176, 1815 N.Y. Misc. LEXIS 9

Opinion

The Chancellor.

The plaintiff should have made his defence at-law, by way of payment, or set-off; and he might, perhaps, have called for a discovery in aid of his defence at law. No reason is assigned why he did not call for a discovery, or prepare and defend himself in due season. He has not stated what were the obstacles to a defence at law. A defendant cannot come " here for a new trial, when no special ground of fraud or surprise is suggested, and when he neglects, or omits due diligence, and without due excuse, to defend himself in his proper place. This is a fundamental doctrine in this court. (Le Guen v. Gouverneur & Kemble, 1 Johns. Cas. 436. M Vickar v. Wolcott, 4 Johns. Rep. 510. Lansing v. Eddy, decided in this court, June, 1814.

* Smith & Mead v. Lowry, October, 1814.† The principle has been so often declared, that it is useless to enlarge; and, without resting on minor objections, the injunction cannot be retained on the merits di the case.

Motion granted.(a)

Ante, p. 49.

Ante, p.320.

See De Lime v. Glassell, 4 H. & M. 369. Turpin v. Thomas, 2 H. & M. 139. S. P.