Cowman v. Kingsland

The bill contains enough upon its face to affect the bonds, on which the judgment has been recovered, with usury. But the question is, whether the complainant is not too late in seeking relief in this court after trial and judgment against him at law in the action on the bonds ?

It is the principal ground of the demurrer that the complainants, having failed at law with a defence which was a legal and available one there, cannot seek relief in this court on the same ground.

In Norton v. Woods, 5 Paige’s C. R. 251, S. C. on appeal, 22 Wend. 520, the chancellor has laid down the doctrine, from a number of former cases in this court and in the English chancery, that a party,- having a legal defence, must avail himself of it in a suit at law—even by the filing of a bill of discovery for evidence, if he cannot avail himself of facts in any other way. If he omits to do so and does not render a satisfactory excuse for not resorting to such a bill in the first instance, the court will not relieve him from the consequences of his neglect or omission after a judgment has been obtained.

In the case of Norton v. Woods, supra, it appeared that the complainant had been deprived of the testimony of the only person who knew the facts, by his being a party plaintiff in the suit at law and, therefore, not admissible as a witness, although otherwise disinterested ; and, moreover, a bill of *629discovery would have availed nothing. Hence the propriety, in that case, of a resort to the court of chancery after judgment for relief. But the case in hand is different. Here, a bill of discovery, in the first instance, would have been available. The facts were within the knowledge of the plaintiff in the court of law and might have been obtained preparatory to a trial. It is true, that another mode of obtaining a discovery of usury is authorized by the statute, namely, of putting the plaintiff upon the stand as a witness. This, the complainant attempted to do; but it failed—either because he could not or did not make the necessary and proper affidavit to entitle him to put the plaintiff on the stand as a witness. If he could not make a sufficient affidavit for that purpose, he must be supposed to have known, beforehand, that he could not; and that being só, he should have resorted to his bill of discovery. If he could have made the proper affidavit and did not, it was his own folly or negligence; and the omission in such a case presents no ground of excuse. It is true that the complainant has, now, in this court, a competent witness in Gillender to prove the usury, whose testimony he could not have had on the trial at law ; and, therefore, he waives a discovery from the defendants in this bill. But the competency of Gillender, as a witness now, does not excuse the omission of not filing a bill of discovery before the trial.

I find no precedent for granting anew trial because a person has become competent to prove facts constituting a defence since the trial, when the party could have had the benefit of the same facts upon a bill of discovery before the trial.

The case of McIntire v. Mancius, 16 J. R. 592, has been mentioned ; but it is not an analogous case-; and Cowman v. Lovett (M. S. opinion of V. C. Nov. 6, 1843), which has been referred to, was a case of a bill filed for discovery before a trial at law; and, in that respect, different from the present.

There may be a very great hardship in leaving this complainant liable to pay the judgment; but I do not see that there is any help for him.

With respect to the promissory note spoken of in the bill *630and prayed to be surrendered and cancelled, the complainant stands in no need of the aid of this court. The note pagt ¿¡ue an¿ if ever an action is brought on it, he can now make a good defence at law.

Order, that the demurrer be allowed; and bill dismissed, with costs.