Swann's Administratrix v. Brown

CRanch, C. J., delivered the opinion of the Court as follows. The supplemental bill does not substantially differ from the [249] original bill; but it is somewhat more formal and pointed in its allegations; and it refers to the original agreement signed by Mr. W. T. Swann, and the defendant, which is referred to in an affidavit of Gustavus B. Alexander* and is admitted in the defendant’s answer as constituting the original agreement. That the bond in question was executed in pursuance of that agreement, is apparent by comparing them with each other. That the original agreement thus confessed in the answer, was usurious, is apparent on its face. The bond, therefore, is affected, or infected by that usury. The only question remaining, is, whether this Court, as a court of chancery, or a court of equity, can now give relief. ' That point was decided by this Court upon the former demurrer, which embraced all the causes of demurrer which are now urged. That decision we believe to be fully warranted, by the judgment of the Court of Appeals of Virginia, in the case of Young v. Scott, 4 Rand. 415, which case embraces and decides every point of demurrer made in this. In one particular, this case is stronger for the complainants than that; because, in that case, a judgment at law had been rendered without any reservation of equity ; a forthcoming bond had been given, upon an execution issued upon that judgment; the forthcoming bond had been forfeited, and a judgment rendered upon it, without reservation of equity. Whereas, in the present case, the judgment was confessed, with a saving of the defendant’s equity; meaning thereby, no doubt, the defendant’s right to apply to a court of equity for the relief given by the statute, as well as relief upon any original equity of which they could not have availed themselves at law. As the ease is clearly made out in favor of the complainants, without resorting to evidence beyond the written contract, the answer and the bond upon which the judgment at law was rendered, we have not looked into the affidavits of the Alexanders, and therefore give no opinion as to their competency as witnesses, or the competency of the matter of. the affidavits. We think the injunction ought to be perpetual, and that the complainants are, under the statute, entitled to costs. Decree accordingly, nem. con. Reversed by the Supreme Court of the United States, (10 Peters, 497,) who do not seem to have noticed the case of Young v. Scott, 4 Randolph, 415, upon the authority of which case, this Court decided the cause.