Smith v. Sparrow

Terry, C. J. concurring.

We think the Court below did not err to the prejudice of the Appellant in dismissing his bill. The bill alleges merely that the plaintiff has a legal defense to a promissory note held by the defendant. In Lewis v. Tobias, (10 Cal. 577,) we held that equity will not interfere in such cases, unless under peculiar circumstances. We do not understand this to be a proceeding under the 527th Section of the Practice Act. If it were, it comes within the principle of King v. Hall & Huggins, (5 Cal. 82.) *598Sparrow having taken his proceedings in the Twelfth District Court, the plaintiff has a full opportunity of terminating the controversy by having the case tried.

Judgment affirmed.