Bartholomew v. Yaw

1 Sarat. Ch. Sent. 35, 1841 N.Y. LEXIS 393

• Court: Saratoga Chancery Court
• Decided: May 4, 1841
• Status: Published

Opinion

The bill in this case was filed to recover back the usurious premiums which the complainant had paid to the defendant upon a loan of money at the rate of per cent per month in addition to the legal interest. Judgments had been obtained for the amount of the notes given upon the loan, and the same had been paid by complainant, On the trials at law the defendant omitted to set up the defense of usury. The chancellor decided that he had no power to interfere in such a case. That the complainant, when sued at law, should have set up the defense of usury, and if a discovery was necessary to establish such defense he should have filed his bill here to enable him to use the defendant’s answerpn the trial. That upon such a bill it would be a matter of course to grant an injunction to stay the proceedings in a suit at law until such bill was fully answered. That a party who has a legal defense i to a suit at law must avail himself of it in that suit; and that if a bill of discovery is necessary he should not wait until after judgment *under the expectation that he can recover back the money collected under such a judgment,by the aid of this court, Decretal order of the vice-chancellor overruling the demurrer reversed, and bill dismissed, with costs, but without costs to appellant on the appeal.