
    Clark vs Young et al.
    
    Chancery,
    Error to the Fayette Circuit.
    
      Case 28.
    
      Bar in equity. Injunctions.
    
    
      September 28.
    Case stated and the decree of the Cirouit Cowrt’
   Chief Justice Robektson

delivered the Opinion of the Court.

Benjamin Grimes having enjoined, on the ground of usury, a judgment which had been obtained against him by John Clark, on a note for $122, executed in the year 1829, for a supposed balance of an old loan, upon which, as alleged, much more than the principal had been paid; his injunction was afterwards dissolved, because the injunction bond had been lost and lie refused to execute another, and at a subsequent term, his suit was abated by his death.

If an. injunction enjoining ajudgjnent at law, on the ground of nsnry, be properly dissolved., the ground of usury cannot be legitimately relied on ill a snitin chancery, brought to setup the lost injunction bond, but if the injunction be discharged because the comp’lt. refused to execute a new injunction bond, it constitutes no bar to the adm’r. and surety of comp’lt.. in a now bill setting up usury in the original transaction.

Subsequently Clark brought a suit in chancery for enforcing the lost injunction bond against John Young, the surety therein, and James E. Davis, the administrator of the principal obligor, Grimes, and obtained a decree pro confesso, his bill being unanswered. Afterwards Young and Davis filed a bill for reviving Grimes' original suit, and for enjoining Clark’s last decree, for errors alleged to appear on its face; but upon hearing, the Circuit Judge dismissed this bill. Before the close of the term at which that decree of dismission was rendered, Young and Davis appeared and filed a petition for opening the decree for alleged errors appearing in the record, but by mistake or some clerical misprision, no entry Was made on the order book noticing the petition or the recognition and continuance of it by the Court; and afterwards Young and Davis filed a bill alleging these facts, exhibiting the pretermitted petition, and praying for a revivor of the abated suit of Grimes, and for an injunction against the decree on the injunction bond. In his answer to this last bill Clark relied on.his decree on the last injunction bond .as a bar, and moreover insisted that the. record did not ■show that there was available usury in the note on which his judgment had been obtained: but on the final hearing, the Circuit Judge perpetually enjoined Clark’s decree, excepting as to only about $12, and he now seeks a •reversal of that decree.

As the allegations by Young and Davis respecting the petition are virtually admitted by Clark’s answer, there can be no doubt that their last bill should have.all the effect to which their first was entitled; and the first question to be considered, therefore, is whether, after the decree by default on the lost injunction bond, the bill by Young and Davis was maintainable? And we think it was.

Although an injunction may have been improvidently gran ted, yet if it be in fact pending when a final decree is made in the cause, and comp’lt. show himself entitled to the relief prayed for, it will be proper to make the injunction perpetual, as far as comp’It. may show himself entitled to relief.

If the injunction had been properly dissolved on account of the loss merely pf the injunction bond, a decree for enforcing the last bond could not have been resisted by Grimes.himself, on the ground of usury, which ho was litigating in the very suit in which the dissolution had been decreed; and, of course, neither his surety nor administrator, by reviving, as they had a right to do, his abated suit, could have resisted the decree for dissolution on the same ground; for if this could be done, the interlocutory dissolution of an injunction may always be made unavailing as long as the principal suit shall .remain undecided.

And if such a dissolution as that exhibited in this ease should not be enforced by a court of equity, because, on its face, it was irregular and unjust, and should have been only a discharge instead of a dissolution, still the failure to answer Clark’s bill on the lost bond did not preclude Young and Davis from an equitable right to review the decree by default, for errors of law apparent therein.

And if it be admitted that a bill of review should not be sustained on such facts as those appearing in the record of Clark’s decree on the lost bond, nevertheless, we have no doubt that Davis might still have revived his intestate’s original suit, and have been entitled thereinto such a final decree for relief as Grimes himself might have obtained after the dissolution of his injunction and the enforcement of the injunction bond, had he lived and had his suit therefore never been abated by death. And although upon such a bill of revivor merely, it might have been improper to enjoin Clark’s decree on the injunction bond; yet as it was in fact enjoined, it was not erroneous to perpetuate the injunction, if on the final hearing, Grimes’ administrator would have been entitled to a decree pro tanio for restitution, had there beeri no injunction and had the amount decreed to Clark been paid, either by the administrator or by Young as surety; for, on the hypothesis suggested, it would have been idle and unreasonably vexatious and circuitous to dissolve the injunction against Clark because it had been improvidently granted'in the first instance, thereby remitting him to his original right to enforce that decree by execution, and then at the same time to decree that he should restore the greater part of the amount of that decree at the instant of its collection.

Pindell for plaintiff; Robinson fy Johnson for defendants.

We are of the opinion, therefore, that the decree now complained of should not be reversed, if, in the revived suit o'f Grimes, it was proper to decreejhat there was as much usury in the note of 1829 as the Circuit Judge decided that there was. And upon this last point we have no great difficulty. If, as alleged in Grimes’ original bill, the amount of the loan was only $150, there can be no doubt that the whole of the note for $122 was given for usury. Clark denied that the amount of the loan was as small as $150, and alleged that it was at least $175 or perhaps $200. Grimes also alleged that several years after the loan, to-wit: in the year 1820, he executed two notes to Clark, one for the principal whichhad been loaned, and the other for the usurious ¿interest which exceeded in amount the sum loaned, and that the smaller note for principal was for $178, These allegations were not responded to by Clark, and there is no extraneous proof as to the amount of the original loan.

Upon these facts the Circuit Judge ha,d an unquestionable right to assume that not more than $175, or $178 at the utmost, had been loaned by Clark to Grimes. He assumed $175 as the maximum amount of the loan; and on that assumption, there being clear proof of usury in the loan, his decree is not for two much. Perhaps he might have been more certainly and exactly right had he taken about $178 as the amount of the loan—but this is not absolutely certain, and even if it were, the difference' in the result would be too trifling to notice, especially after all the vexation and expense to which Grimes and his surety and administrator have been subjected by the persevering efforts of Clark to enforce usurious exactions.

It is, therefore, the opinion of this Court, that the decree now sought to be reversed should be, and consequently it is, affirmed.  