
    NOVEMBER TERM, 1844.
    A. L. Yeizer, et al. v. Burke, Watt & Co.
    It is too late, upon an appeal from the dissolution of an injunction upon bill and answer filed in the Chancery Court, to object that the answer was not filed within the time limited by the rules of the Court, after a demurrer overruled. The objection to the answer should have been made in the Court below before it was filed and considered.
    It is too late to object to the sufficiency of the jurat, to answers to a bill in chancery, on an appeal from the final decree of the Chancellor upon the merits of the case; such objection should be made in the Court below.
    A certificate of a competent officer appended to the answer, stating that the parties appeared before him and made oath that the facts, matters and things contained in the answer which was signed by them, were true, is evidence of a sufficient affidavit to the truth of the contents of the answer. ,
    It is competent for the complainants'in a suit in chancery to waive the insufficiency of an affidavit to the answer of the defendant; and permittifag the case to be disposed of on its merits, is equivalent to such a waiver.
    Usury is a defence cognizable at law, and when not made there, relief cannot be had in chancery.
    It is no valid reason for not making a defence to an action at law, that the counsel of the party failing to make the defence was indisposed; more especially where the names of two attornies are filed to his pleadings in the court at law. He should be present himself.
    Where a party was sued for an usurious debt, and compromised the suit by giving a bond with sureties payable at a distant day, suffers himself to be sued upon the bond afterwards, permits a judgment to be rendered against him, ' gives a forthcoming bond, and allows it to be forfeited, and then comes into equity seeking relief; held, that even if originally he had been entitled to relief in equity, his great delay to make his defence would operate against his right to relief upon such application.
    This is an appeal from the Superior Court of Chancery.
    The appellants, Archibald L. Yeizer, Joseph A. McRaven, Jacob B. Morgan, and Thomas J. Randolph, complainants below, filed their bill in June, 1839, in which they state that during the years 1835 and 1836, A. L. Yeizer, one of the complainants, had extensive transactions with Burke, Watt & Co., merchants of New Orleans, and with A. Fisk, Watt& Co., whom the former firm sue-ceeded in business ; that in the course of these dealings, bills of exchange to a large amount were drawn by Yeizer on these houses, which were accepted and paid for the accommodation of the drawer; on which bills, in the account current, ten per cent interest, and two and a half for acceptance, and two and a half per cent for advancing, are charged ; Yeizer being also credited in the interest account at the same' rate. The account was settled by the note of Yeizer for the balance appearing to be due. In 1837, Burke, Watt & Co. levied an attachment on the goods of Yeizer in New Orleans, La. Yeizer, as the bill states, under a “ sort of moral duress,” was forced to give a new note with security, ‘payable 1st January thereafter, which note bears interest at ten per cent. On this note suit was commenced and judgment recovered at May term, 1838, of the Circuit Court of Warren county, in this State. The bill states that Yeizer employed an attorney to defend the suit, but that none of the defendants attended the Court, or considered it necessary to do so, expecting their attorney to make the necessary defence. The defendants excuse this negligence by stating that they were informed that their attorney was sick at the trial, of which they had not notice in time to avail themselves of the services of another attorney. The bill further states, that, abating the excessive and illegal interest, and the charges for accepting and advancing, the balance due will be small, which complainants were willing to pay.
    Upon the judgment, execution issued, and a forthcoming bond was given by Yeizer and Morgan with securities, which was forfeited, and the bill was filed to enjoin the execution sued out on the forfeited bond. '
    The bill insists that, notwithstanding the judgment, the defendant, Yeizer, expected Burke, Watt & Co. to correct any errors, and refers to their letters dated 24th September, 1836, in which they declare their willingness to correct any mistakes which Yeizer may point out, at the same time denying that any exist in the account.
    The record of the suit at law is made an exhibit, from which it appears that the action was commenced on the bill single of defendants, due 1st January, 1838. The writ was served 31st March, 1838. The defendants filed a demurrer to the de.claration, which was signed by two attornies, and was the only plea or issue tendered, so far as the record shows. The judgment of the Circuit Court overruled this demurrer, and the defendant failing to plead over, the Court rendered judgment. The first execution which was issued was stayed by order of plaintiffs’ attorney, and a new writ of fi. fa. sued out, directed to the sheriff of Hinds, which was levied, and bond given as before, stated.
    These are the facts presented’ by the bill, to which a demurrer was filed, and submission made to dissolve the injunction upon the insufficiency of the statements of the bill to entitle complainants to relief. The Chancellor, on the 18th day of June, 1839, overruled the demurrer,' and granted leave to answer in ninety days.
    The answer of Burke, Watt & Co, was filed on the 11th day of December, 1339, and stated that they are citizens and residents of New Orleans, La., and admits the fact that they had large transactions with Yeizer, principally in bills drawn on and accepted by thern, which were in part paid by shipments of cotton made by Yeizer. That their account current was rendered 11th July, 1836, showing balance, composed of principal and legitimate charges for interest on £i money loaned, money advanced, for the labor, skill and attention of respondents, in storing, keeping, and sale of cotton, for Yeizer.” 'That for this balance, Yeizer gave his note at his house in Hinds county, Mississippi, when no suit was pending, and when he was under no “ moral duress.” That the conventional interest charged is legal at New Orleans, where the payments were made, and where all the transactions took place. That on this note, they commenced suit by attachment in the courts of Louisiana, and at the urgent solicitations of Yeizer, were persuaded to dismiss their action, upon his executing a new note, payable at a future day, with the other defendants at law as his securities. The answer denies, that there was any “moral duress,” by which the'last named note was forced from the .necessities of the makers. Respondents admit, that they were in 1836, as they now are, willing to correct any errors pointed out in their account; but they deny that any existed or were ever pointed out.1. They refer to letters from Yeizer, dated more-than one year after their letter to him, in which he makes positive assurances of prompt payment on the presentation and maturity of his note, and that with exchange for Mississippi bank paper added. Respondents in their answer state, that they know nothing in relation to the sickness of the complainants’ attorney, and other excuses, as stated in the bill, for not defending at law, and do not deem these allegations very material, inasmuch as they desire the decision of the Court upon the merits of the case. The answer denies all fraud, and insists upon satisfaction of the judgment at law. This answer is signed by Glendy Burke, John Watt, and Louis D’Salles, who composed the firm of Burke, Watt & Co. The certificate of A. Mazereau, a notary public of New Orleans, Louisiana, states that Burke and D’Salles appeared before him, a notary public, and were duly sworn to the truth of the statements of the answer ; but the defendants did not sign the affidavit, which followed the bill in due order. Watt was sworn before E. R. Warren, justice of the peace of Warren county, Mississippi; and his certificate is of a similar character.
    At the June term, 1840, the injunction was dissolved with damages, and from this order dissolving the injunction, the present appeal was granted by the Hon. E. Turner, then a judge of this Court.
    The present Chancellor having been concerned as counsel for the complainant in the Court below, the motion to dissolve was submitted to a special Chancellor, under the act of 1840; whose decision is the one appealed from.
    The assignment of errors presents three points: —
    1st. That the Court below ought to have overruled the motion to dissolve, because the answer of the defendants is “not sworn to,” the affidavits or certificates of the notary and justice not being signed by respondents.
    2dly. The order and judgment of the Court below should have been in favor of complainants.
    3dly. The Court below ought to have retained the injunction, and directed an account on the matters of the bill. '
    J. F. Fouie, for appellants.
    Complainants insist that the order or decree in the Court below was erroneous, for the following reasons :
    
      1. It will be seen, at pages 23 and 24 of the record, that defendants’ demurrer to complainants’ bill was overruled on the 18th of June, 1839, and defendants ordered to answer within ninety days ; and that the paper purporting to be an answer was not filed until 11th December, 1839, near six'months after; and that no leave to file answers was asked, or granted by the Court; and that the pretended answer was placed on file without leave and without authority, and in violation of the rules of the Court, and hence could not be properly regarded as before the Court, or entitled to be regarded by the Court as constituting any proper- ground for its action.
    2. If, however, this Court are of opinion that the answer was properly before the Court below, still it is wholly defective and insufficient in' many essential particulars, viz. : It will be seen that the answers are not properly sworn to or-verified. At pages 27 and 28 of the record will be seen the affidavits, or jurats, on which the answer is supposed to be authenticated ; these are nothing more than certificates, by the notary and justice, of events which happened before them. None of defendants have signed the affidavits, and none of them could be prosecuted for perjury, as to any fact stated in the answer, however false it may be. The 11th Rule of the Superior Court of Chancery of the State of Mississippi (page 8 of printed Rules) requires, that “affidavits to bills, answers, pleadings, or for verification of facts whereon to ground any motion, order, dr proceeding, must be signed by the party making such oath or affirmation,” &c. &c. It is most clear that the verification of the answer of defendants is not in accordance with above-quoted rule ; and it is equally condemned by, and in violation of, the universal and well-established rules and practice in chancery. See 1 Smith’s Chancery Practice^ .244, 245, 265 ; 2 Smith’s Chan. Prac. 624, form of júral; 6 Wendell, 39 ; 'Fulton Bank v. Beach, et al., 2 Maddock’s Chan. 331 ; 2 Paige, 307 ; Halsted’s Digest, 172, Trumbull v. Gibbons; Bays v. Seguin, 1 Hogan, 274 ; 4 Paige, 94, Dongrey v. Topping; lb. 504, Bartlett v. .Gayle. 3. We assume, therefore, that this answer is not sworn to ; and it is well settled that a Court of Chancery will not dissolve on an answer not sworn to, although complainant may waive necessity of an answer on oath by defendant. 4 Paige, 94, Dongrey v. Topping. And, even when an answer on oath is waived by complainant,„the answer is not evidence in favor of defendant for any purpose. Bartlett v. Gayle, 4 Paige, 504.
    “ On a motion to dissolve an injunction, objections of every, kind to the answer may be made, and are then in order ; and it is a general rule, that, if the facts on which the equity of an injunction rests are denied, the injunction must be dissolved, otherwise (if not denied) it must be continued to the hearing.” See 1 Bland’s Chan. Rep. 352, Gibson v. Tilton.
    
    “ And an injunction cannot be dissolved if the answer be evasive, or does not deny the facts on which the plaintiff’s equity rests.” 1 Bland’s Chan. Rep. 195, Williams v. Hall.
    
    Or if defendant, in his answer, admits the equity of the bill, but sets up new matters of defence, on which he relies, the injunction will be continued to the hearing. , Mvnturn v. Seymour, 4 Johns. Ch. Rep. 497; Paynes v. Coles, 1 Munford, 373,/cited 3 Eq. Digest, 465, pi. IS, and 386, pi. 38.
    4. If the Court will regard the.answer as filed in time, and by proper authority, and that it is duly verified and authenticated, then complainants insist that the answer is insufficient to authorize a dissolution of injunction, because it does not deny the usury charged in the bill, and is evasive, and seeks to avoid the force and legal consequences of the facts charged in the bill, and neither admits nor denies material facts in the bill, except arguendo. Ward v. Van Bokelen, 1 Paige, 100;-Moore v. Hylton, Devereux’s Eq. Rep. 429 ; Hagthorp v. Hook's Jldm'rs, 1 Gill & Johnst. 272, cited 3 Eq. Digest, 454, pi. 17, 12, and 385, pi. 18 ; Noble v.^ Wilson, 1 Paige, 164; Norton y. Woods, 5-Paige, 249; 2 Story’s Equity, page 745, sec. 1529.
    5. And all material facts charged in the bill, and not denied in the answer, must be taken as true on a motion to dissolve. Randolph v. Randolph, 6 Randolph’s Rep. 194, and authorities passim.
    
    6. Defendants, in their answer, waive all advantage of their judgment at law, and submit the whole case to this Court, without any reservation of legal advantages ; and, if thus considered by this Court, there can be no doubt, from examination of bill and exhibits of complainant, and especially the account current, upon which settlement was. made and balance struck, for which note was given, that usury and compounded usury was charged against complainant, and most unconscientious charges made by defendants, and in violation of law; for it will be. seen, that the notes given by Yeizer, and by him and his sureties, on which judgment at law was had, were made in the State of Mississippi, not in Louisiana, and that defendants seek recovery in the Courts of Mississippi, and must necessarily be governed by the laws of Mississippi, regardless of the laws or customs of Louisiana, the residence of some of defendants.
    7. A reference to the account current of defendants rendered to Yeizer, and on which his note was given 16th July, 1836, shows that defendants became acceptors for Yeizer, on 6th February, -1835, of' several bills falling due 10th Febuary, 1836; the two first bills amounting to $1414.41 ; and that .on 28th Dec. 1835, defendants received of complainant, Yeizer, $553.64, and on 11th January, 1836, $1139.04, — together $1692.68 ; nearly $300 more than the amount of defendants’ liabilities, and the whole funds in defendants’ hands two months before their acceptances fell.due ; and that on 2d Feb. 1836, defendants received near $4000 of Yeizer’s funds, near $500 more than amount of acceptances of defendants, made on 6th Feb. 1835 ; and it also appears from same account current, that the acceptances by defendants falling due last of February, and in March and April, 1836, were fully met by large shipments of cotton made by Yeizer to defendants, the net proceeds of which defendants had in hands on 12th, 16th, and 23d April, and 9th May, and 14th June, 1836. Those last mentioned sales of cotton amount to near $10,000. Upon the receiving and sales of all this, cotton, defendants charged and retained large fees and commissions, charged on their account sales, and only credit Yeizer with the net proceeds of his cotton, on this account current; and yet, although defendants were thus paid commissions, and had on several occasions large amounts of Yeizer’s funds in their hands for some time before they were called on for it, yet the defendants charge commissions for accepting, and commissions for advancing, and ten per cent, interest. In such case, it seems to us impossible, that equity and good conscience can tolerate such charges, and lend the arm of the law to collect them.
    For all which, and many other reasons which will readily occur to the Court, complainants' pray that decree of Court below be reversed, &c., and that the prayer of their original bill be granted.
    
      Mason and Busioell, for appellees.
    1st. The submission in the Court below was upon the bill, answer, and exhibits. The answer is signed by each of respondents, and no objection was taken in the Court below, but the paper purporting to be the answer of Burke, Watt & Co. was regarded as being what it purported. To obtain the benefit of this exception, complainants should have moved to take off the file this paper, describing it as a paper writing, purporting to be the answer of Burke, Watt & Co. Story’s Eq. PI. 666.
    But we contend that the answer is properly verified by affidavit. The notary and justice certify that the respondents who subscribed the answer appeared before them, and took an oath that the statements in the answer are true. The practice does not require the signature of the respondent to the affidavit or certificate ; his signature to thje answer itself is only necessary, or required, when by consent of the plaintiff the oath is dispensed with. Story Eq. PI. 671. The early practice was to direct a commission to take the answer ; and the signature of the commissioners, who were supposed to take it from the mouth of the defendant, was a guaranty of the propriety of its contents. The modern practice requires the signature and indorsement of counsel for the same purpose. The important inquiry is, “ was the answer sworn to ?” and this inquiry is answered by the certificate of the officers appointed to administer the oath : the paper sworn to is sufficiently identified by the signatures to the answer. See 1 Smith’s Chancery, 266, 268 ; How. & Hutch. Dig. 525, sec. 75 ; 5 Howard, 104 ; 3 How. 117 ; J How. 458 ; 1 How. 113.
    2d. The Court below very properly dissolved the injunction.
    The Chancellor might with propriety have sustained the demurrer to the bill, or dismissed it for want of equity on its face. No excuse is given for the failure to make defence at law, and from the record it is evident that full defence was made. demurrer to the declaration is a plea in bar, and upon this plea, defendants and their counsel rested the defence. It is stated that one of them was absent from the trial on account of sickness. Where was the other who was associated with him in the defence, and what excuse is given or pretended for his failure to assert the rights of his clients, and making the available defence, which it is now pretended they had ? It is not pretended in the bill that either of the counsel employed were advised of the grounds of defence relied on; and yet it is stated, that none of the defendants attended the Court, or felt bound to do so, but relied on the one who was absent to m.ake the necessary defence. Truly, defendants’reliance in their attorney is without example. They expect him to learn by supernatural instinct the facts on which the defence was to be rested. Not satisfied with this ample reliance on his instinctive knowledge of the past, they rely upon his insight into the future, and expect him, foreseeing that the Court would overrule the demurrer, to prepare himself to make the affidavit of merits which by the statute is required before any plea would be received. The attorney in the Court at Law had before him a plain bond, conveying a strong suspicion at least of debt, • and no other materials out of which to extract the information upon which to make “ the necessary defence.” If all of his clients were as reluctant to furnish him with necessary information to draw necessary defences from, as the appellants, this most excellent lawyer would of necessity stereotype and 'file in every case the only plea which Robin Hood would, in the tenderness of his conscientious scruples, permit to be filed for him'.
    Leaving out of view the pther attorney whose name is signed to the demurrer, here is a fatal defect in the case as made by the bill, for which alone a demurrer ought to have been sustained. But this is not all. In October, 1838, after the defendants had for six months grieved over the deficiency of Mr. Lake, the principal defendant Yeizer joined others in a bond, which was returned forfeited the 5th of November, 1838. When, by the effect of the execution upon this bond, it was discovered that all the Common Law means of delay were exhausted, an application was made for an injunction. 3 J. C. R. 399 ; 5 How. 104; 3 How. 117 ; 1 How. 113 ; 6 How. 575.
    
      It appears in the bill, that in 1837, Burke, Watt & Co. instituted suit on a note of A. L. Yeizer in the Court of New Orleans, and levied an attachment on his goods ; and it is stated that Yeizer, under “ a sort of moral duress,” executed the note with security, payable at a future day, the judgment on which is enjoined. If Yeizer had any defence, an opportunity was then afforded him to avail himself of it in the Courts of the country with reference to which the contract was made, and by the law of which it must of course be governed. Could he find in New Orleans no attorney skilful in “necessary defences ?” or did he find the Courts of that State to lend an unwilling ear to them when made ? Such an imputation on the Courts of Lousiana is not cast in the bill, and out of courtesy would be discountenanced by the Courts of a sister State. It was more convenient to waiv.e the defence at that time, and to.pay a present and pressing demand (for the recovery of which suit was commenced in the Court best qualified to decide upon its merits) by a note at the good old-fashioned January credit; and for the easy payment of this last note, to rely upon the kind and comprehensive offices of attorney in the Court below, in the first place, and upon “a sort of moral duress,” as a dernier resort. This “moral duress ” must refer to' the attachment suit in New Orleans. The note is executed in Hinds county, Mississippi. _ The levy on goods in New Orleans creates a “ sort of moral duress,” which regards distance of space as little as defendant Yeizer did his oft-repeated promises of payment. What is the substance of the duress under which Yeizer gave the note ? In some sort it may be said to have been a “ duress per minasfor Burke, Watt & Co. in the suit and levy on the goods, did threaten, that if the Court gave judgment in their favor, and so directed the executive officers of the law, they would permit the, goods to be sold in due process of execution, unless their debt was paid ; in which event, they would permit the Court to keep them or return' them to Yeizer, whichever course might be deemed right and proper. Or are we mistaken as to the character of the duress, and may it be classed under the head of “ duress of the person by imprisonment,” on a new theory, invented to suit this case, by which the moral feelings would be securely lodged in a bale of dry goods, .corked up in a bottle of fluid, or booped up in a barrel of groceries, in such manner, that when you confine the latter in legal custody, you imprison the person, and acquire an unjust and unrighteous influence. This would truly 'join Ephraim to his idols, and the Courts of justice, as they regard Scripture, would let him alone.
    3. The Court ought to have retained the injunction, and directed an account on the matters of the bill. This will of course depend on the right of complainants to relief. To what purpose direct an account, when the situation of the parties to the litigation precludes any further action upon it ? The taking of an account is auxiliary to the relief asked by the bill, and if the plaintiff is entitled- to no relief, he will be entitled to no account.
    Appellants, however, rely upon the clause in the answer in which .respondents state their ignorance as' to the sickness of their attorney, and their belief that the charges in the bill on that subject are immaterial, and conclude by saying they wish the Court to decide upon the merits of the whole case. Respondents insist upon the immediate payment of their debt. The ’questions of law arising upon the bill had been submitted-to the Court by the demurrer : and this expression in the answer cannot be regarded as a waiver of any legal right. The whole record is now before the Court, and the demurrer to the bill was well taken. The demurrer is to the whole bill, and if allowed puts an end to the suit. 1 Smith, 213. The appellee in desiring the decision of the Court upon the whole merits, must be understood to speak with reference to the previous proceedings, upon which they had insisted upon their legal rights.
    Upon the whole record we ask an affirmance of the decree.
    
      W. H. Hurst, on the same side.
    In this case the principal ground of the appellant to sustain'his bill in the Court below, was, that the renewal of his note, the note on which judgment was obtained in the Circuit Court, was obtained from him by moral duress. The duress complained of, was the attachment of defendant Yeizer’s goods in New Orleans by due course of law. We presume that legal duress is meant, as we are unaware of this new species of moral duress. Kent says, “ If the contract be entered into by violence offered to the will, or under the influence of undue restraint, the party may avoid it by plea of duress. If a person be under arrest for improper purposes without just cause, or where there is an arrest for a just cause, but without lawful authority, he may be considered as under duress.” Here then are the only cases of duress enumerated by that great Chancellor, and neither of them approach the case before the Court. In this case there is a suit brought in the ordinary manner of attachment in Louisiana ; the party is not present, is not imprisoned, but the fact is, executes the compromise at his own house in Mississippi. In the case of Stoaffer v. Latshaw, 2 Watts’s Penn. Rep. p. 165, the learned Court, after able arguments, decide, “that to constitute duress at law, the arrest must have been originally illegal, or made so by a subsequent abuse of it; the legality or illegality of an arrest is determinable by the laws of the State in which it is made ; and in the absence of proof to the contrary, an arrest upon legal process in another State will be presumed to be justifiable.” In this case the arrest was not of the person, but of the goods of Yeizer. A bond given to release goods from attachment cannot be avoided for duress. Summer v. Juryman, 11 Mod. 202 ; Meek v. Atkinson, 1 Bailley, S. Car. Rep. 84.
    In the case referred to in Watts’s Reports, the learned Judge says, “In no case have I found an authority for the notion that there is a sort of equitable ” (I presume this is tantamount to moral as here used) “ duress, which may be made the foundation of an injunction against proceedings at law.” It seems to me, then, at the time of the attachment of the goods of Yeizer in New Orleans, which is not now pretended to have been illegal, he was under no moral, equitable, or legal duress ; and in order to obtain further time, he agreed to do that which Burke, Watt & Co.' sought, viz., to secure the safety of their claim ; he did so by liquidating the debt then due, postponing the payment for twelve months, and giving the conventional interest of Louisiana, which was in accordance with the laws of that State where the note was made payable.
    
      J. F. Foute, in reply.
    Complainant, appellant, thinks the ground of duress mentioned in his bill, by no means the principal ground on which he is entitled to relief; and considers the importance given by defendants’ counsel in that matter, as evidence of a misapprehension of the true and real grounds of complainant’s bill. Complainant is well satisfied that the Court will have no difficulty in understanding the “ moral duress,” which seems so much to puzzle defendants’” counsel, and therefore will not trouble the Court with further argument as- to that matter. In reply to'so much of defendants’ argument as relates to the waiver of defendants in their answer, of all benefit and advantage of their judgment at law, counsel for complainant insists that defendants have fully and absolutely by their answer waived and abandoned any and every advantage they might have had by the judgment at law ; and therefore defendants’ argument, and attempt to set up the strict rules of law on that subject, cannot be'considered by the Court, and will be disregarded in the consideration of the cause.
   Per Curiam.

This is an appeal from the Superior Court of Chancery. By the bill it seems that Yeizer, a citizen of Mississippi, had many dealings, during the years 1835 and 1836, with the appellees, who were commission merchants of New Orleans. Yeizer -was in the habit of shipping them cotton, and drawing bills on them. In 1836, Burke, Watt & Co. exhibited an account current, showing a balance against Yeizer of $2235, which was in part produced by charging ten per cent interest, and also by charging him two and a half per cent for advancing money, and a like commission for accepting his bills. The account current shows charges and credits amounting to hear eighteen thousand dollars. For the balance due, Yeizer executed his note payable on the first of March, 1837, bearing ten per cent interest. On this note the appellees attached property of the appellant in New Orleans, to release which Yeizer gave a bond with sureties, for the sum of $2425.25, being the amount of principal and interest due on the first note ; which bond was also made payable in New Orleans. On this bond suit was brought in the Circuit Court of Warren county. Yeizer. employed an attorney to defend it, on whom he relied, and did not think it necessary to attend the Court, as the defence was apparent froimthe papers. The attorney was absent from Court at the time of trial in consequence óf sickness. By an inspection of the record of judgment, which is an exhibit, it seems that the defendants demurred to the declaration, the demurrer having to it the names of two attornies. The demurrer was overruled, and the defendants failing to plead, a default was taken. An execution issued on the judgment, which was returned stayed by order of the plaintiff’s attorney. Another execution issued, which was levied, and a forthcoming bond given and forfeited; and thereupon another execution issued, to enjoin which this bill was filed.

The appellees first demurred to the bill, but the demurrer was overruled, and they answered, averring the fairness of the whole transaction throughout, and expressing a willingness to have it fully investigated. They admit the charge of ten per cent interest, and say that it was legal conventional interest in Louisiana where the debt was contracted and made payable. They also exhibit two letters from Yeizer, bearing date the 14th and 26th of December, 1837, in which he expressed a determination to pay the note, and requested that it should be forwarded to an agent in Vicksburg, and that he would pay it there. After answer, a motion to dissolve the injunction was sustained, and an appeal ppayed.

The first objection raised on the part of the appellants is, that the injunction was improperly dissolved, because the answer was not filed within the time allowed by the Court' for that purpose when¿ the demurrer was overruled. This objection seems to come too late. By the rules of the Chancery C.ourt, a defendant must answer within the time allowed, and if he fail to do so, the bill may be taken for confessed. Rules, page 6, sec. 3. This course should have been taken, or a motion should have been made to take it from the file. Then the question would have been properly raised in the Court below, but it is too late to raise such an objection, for the first time, after the case has been disposed of on the answer in the Court below.

Another objection is, that the affidavits to the truth of the answers were not signed by the respondents; hence it is assumed that the answers were not legally sworn to, and therefore were not answers. This too is an objection which should have been raised in the Court below. If the Chancellor chose to dispense with his rule, and consider of the merits of the case, on an answer not exactly conforming to his rule in one particular, we cannot on that account say that his decree on the merits was erroneous. Independently of the rule, we should say the affidavits were sufficient. A competent officer certifies that the parties appeared before him, and made oath that the facts, matters and things stated in the answer, which was signed by them, were true. But even if they were not legally sworn to, it was competent for the party .to waive this objection; and’permitting the case to be disposed of on the merits, was equivalent to a waiver.

On the merits the case is equally clear. The bill was filed with a "view to relief from a usurious transaction, after a judgment at law. In the case of JWcRaven v. Forbes, 6 Howard, 569, it was held that usury was a defence cognizable at law, and relief in chancery was refused after judgment at law. The great delay which occurred in this case must operate against the right to relief, even if under different circumstances it would be proper to give it. The .complainant compromised a suit in New Orleans, where the defence might have been’made with great propriety, as the note was payable there. He had also an opportunity to defend the second suit in this State, but did not even plead usury. He demurred to the declaa-ation and failed to plead over. True, he.alleges that the attorney he employed was absent from indisposition. The demurrer is signed by two attorñies, and the other may have been present, and the party himself should have been present. After judgment he gave a forthcoming bond, and did not come to chancery for relief until pressed by the execution on the bond. Under these cir-' •cumstances, we think the demurrer to the bill ought to have been sustained.

But the answers explain away the only ground of relief laid in the bill. The notes, although made in this State, were, payable in Louisiana. The respondents were therefore entitled to the rate of interest allowed in Louisiana. The debt in fact was created there. They deny that they have charged more than is allowed by the laws of that State ; so that the charge of usury is denied ; and the decree was right.

Decree of the Chancellor affirmed.  