Farmers & Mechanics' Bank of Genesee v. Joslyn

Porter, J.- -The judgment is in exact accordance with the legal rights of the parties. The Court refused to enforce the illegal agreement, and it also declined to permit its perversion to a f use injurious to the Plaintiff and beneficial to the Defendants, but to which the latter w'ere not entitled either in conscience or in law. *310 The infected contract did not absolve the mortgagor from bis antecedent obligation, nor did it impair the rights of the Plaintiff under a prior and valid agreement. It is true that the usurer is not permitted, at Ms own election, to allege an illegal act as a ground for reinstating an old security; but it is equally true that a party who claimed to be the victim of exaction' cannot avail himself of the invalidity of a later contract, as a shield from liability on one of an earlier date which was honest and free from vice (Brown v. Dewey, 1. Sandf. Ch. R. 56; Swartwout v. Payne, 19 Johnson, 294; Billington v. Wagoner, 33 New York, 31; La Farge v. Herter, 5 Selden, 241; Crane v. Hubbell, 7 Paige, 413). It appeared on the trial that the paper in question was discounted for the sole purpose of renewing a note previously due and dishonored, and of which the payment was secured by the mortgage set forth in the complaint. To meet the case in this new phase, the Judge submitted to the jury such additional issues as were essential to bring to the view of the Court all the facts material to a just and intelligent decision. To this we see no well founded objection. He was invested with the same power at the Circuit which he exercised at Special Term in framing the original issue. It was a question addressed to his sound discretion. "We think he was clearly right in the disposition which he made of it; but if we entertained a different opinion, we should not be at liberty to reverse the judgment on a question of' mere practice, in resjDect to which the Court below is the ultimate arbiter. The order of the Court, conforming the pleading to the proof and the findings, was made in the exercise of a like discretion. It involved no change in the form of the action, or in the nature and substance of the claim. The Defendants were not taken by surprise, and they suffered no legal prejudice from the amendment. The judgment should be affirmed. All the Judges concurring, Judgment affirmed. JOEL TIFFANY, State Beporter.