
    W. Smith et al. v. James Walker et al.
    A party, having a valid defence at law, must make it in that tribunal; and if he fail, to do so, provided his remedy at law be clear and free from difficulty, equity cannot, after judgment at law, give him relief.
    Usury is a defence, which can be made at law, before a jury, when a party is sued on an usurious contract; and if he neglects to make it there, he cannot come into a court of equity for relief, after judgment; if any discovery from the other party be necessary, in aid of the defence at law, a resort to chancery can be had, before the judgment; and the necessity for such discovery, is, therefore, no excuse for not having defended at law.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    The bill, in this case, was filed by Jonathan Smith, John Webb, Gabriel G. Smith, and'William Smith, the two last partners, under the firm of W. & G. 0. Smith, against James Walker and-Bradley, executors of Andrew C. Hays, deceased, and states, that in March, 1837, in Tennessee, W. & G. C. Smith borrowed of A. C. Hays, $2400, and agreed to pay, as interest therefor, fifteen per cent, per annum; and they gave their note, with indorsers, for $2814, at twelve months, for the principal and usurious interest, at the end of which time- they gave another note, in renewal of the first, at four months, under the same calculation of fifteen per cent, interest. This last note was twice afterwards renewed, on each renewal the same usurious interest being included ; that in August, 1839, the interest was calculated upon the debt, at the same rate, and the Smiths paid $250, and for the residue, gave two notes, one for $2118 40, and the other for $1884 09, due the first of May, 1840; these notes included interest at twelve and a half per cent. only. The note for $2118 40, was sued upon, and judgment obtained, in Tennessee, which was paid ; and judgment was rendered, at the November term, 1843, of the Madison circuit court, on the other note, for $1818 50. That defendants, Walker and Bradley, are executors of Hays, and this judgment, although in the name of Walker alone, and individually, is for the benefit of Hays’s estate; but the note was indorsed by Hays, in his lifetime, in blank, for the purpose of collection ; that this judgment was not for as much as purported to be due on the note, by about $300, which was deducted, in consequence of a provision in Hays’s will, reducing the amount claimed to $1500; that if the sum really borrowed were calculated at legal interest, it had been fully paid, provided the $300, credited in the will, should be allowed; but if not allowed, the defendants in the judgment were indebted about $240, which they were ready to pay, if this court determined that they were not entitled to the provision in the will, and credit for the usurious interest also.
    That, although they filed a plea of non-assumpsit to the suit at law, they withdrew it on the final call of the cause, and made no defence at law, and “ that, owing to the numerous renewals of the note, and the complicated nature of the transaction, they had no adequate remedy at law.”
    That six per cent, is, and was the legal interest of Tennessee, and that contracts reserving a greater rate of interest are, by the statute of that state, made void, as to the excess.
    The prayer was for perpetual injunction, for a decree, in favor of complainants, for the excess paid over the legal interest, allowing them the benefit of the provision of the will, or for general relief.
    Walker, in his answer, states, that he had no knowledge, in relation to the alleged loan, and usurious contract, and the renewals of the notes. He admitted, that judgment was rendered, in Tennessee, on the note for $2118 40, and had been satisfied, but did not know whether it originated, as stated in the bill, or not, or whether or not it was tainted with usury; admitted that judgment was rendered, in Madison circuit court, at November term, 1843, for $1818 50, founded on the note for ■$1884 09, and that it was for the benefit of Hays’s estate; that the abatement, in the judgment, from the amount due as appeared by the face of the note, arose in this manner: When Hays was <?n his death-bed, he called on defendant Walker to write his will, and among other things, stated, that in moneyed transactions between himself .and Smith, he had charged him usurious interest, and his conscience prompted him to refund it; that to reduce the note for $1884 09, to $1500, would be about right, and by his direction, this defendant inserted the clause in his will reducing the note to $1500; that after the death of Hays, he made known to Smith the provision in the will, and the reason that led to it, and Smith expressed himself entirely satisfied with its justice and correctness, and agreed with defendant, in writing, that when the suit which had been brought on the note was reached on the docket, judgment should be rendered for the amount for which it was subsequently rendered ; which was the sum agreed to be due. An agreement to that effect was exhibited with the answer. When the suit was reached, Smith and others endeavored to defeat it, on the ground set up in the bill, and failing therein, the plea was withdrawn, and judgment rendered according to Hays’s will. He denied that there was anything alleged in the complainants’ bill that was not competent to have been relieved against at law; that the suit was instituted to the spring term, 1841, and judgment was not rendered till November term, 1843, during which time, the complainants delayed taking any steps to defend the suit, till the eve of the trial, and finally withdrew their plea; which, it was insisted, precluded the complainants from relief in equity; and defendant claimed the benefit thereof, as if set up by way of formal plea or demurrer.
    The defendant Bradley made no answer.
    Upon this state of pleading, the cause was submitted to the chancellor, on amotion to dissolve the injunction. The chancellor sustained the motion, and the complainants appealed.
    Calhoun, for appellants.
    The injunction should have been retained in this case by the chancellor.
    1. It is well settled, that where a party has not a plain and adequate remedy at law, equity will relieve. See 1 Story’s Ec[. 96. It follows, that a party will not be compelled to defend at law, unless his defence is plain and certain. If the nature of the proof, or of the transaction, is so complicated, as to be likely to embarrass the defence at law, then equity should interfere, as in matters of account, &c. No one can read the bill in this case, without seeing the great difficulty and uncertainty of a defence at law. The bill states, that, owing to the complicated nature of the transaction, the appellants had no adequate remedy at law, and this is apparent.
    2. The suit at law was prosecuted in the name of Walker, but was really for the benefit of the estate of Hays. A discovery of this fact, from Walker, was necessary, and the appellants had to resort to a bill, to procure it, as well as to establish the usury. Walker is a resident of the state of Tennessee, and the appellants could not coerce from him, by bill, a discovery in aid of their defence at law. Will it be insisted that they could have enjoined the suit at law, till discovery was made; and that this was the only remedy they had 1 I think this doctrine absurd. Let me suppose a case to prove it so. A non-resident sues a citizen on a plain note, which was given on an illegal consideration, and is void, which fact can be proved by the plaintiff only. The defendant files his bill for a discovery, and enjoins the suit at law till it is made; the plaintiff fails to answer, and not being within the jurisdiction of the court, cannot be compelled to do so; and so the matter rests until he dies. The suit for discovery abates, the defence at law fails, and his representatives recover the debt. Could such a defendant be said to have a remedy at law? As the appellants could not obtain a discovery to aid the defence at law, the court of chancery had-jurisdiction, and ought to grant relief after a trial at law.
    3. A few words upon the agreement of the parties, (set up in the answer,) that judgment should be rendered for $1500, which the chancellor regarded as a virtual confession of judgment. He then adds, that “ neither a court of equity, nor any other tribunal, proposes to relieve against a judgment by confession, unless the party was seduced into it by the fraud of the opposite party, or by a mistake of his own.” Now I labor under a great mistake, in common with the leading authors' who have written on the subject, if usury is not regarded as fraudulent. It is classed under the head of constructive fraud. Public policy is deeply concerned in its suppression. To close the courts against its suppression, on flimsy pretexts, would bring into action the most grovelling passion, exerted upon the most helpless victims.
    4. I think the excuse set up in the bill for not defending at law is sufficient, but if the court should be of a different opinion, still I think, on another ground, the chancery court ought to grant relief. It is admitted that this transaction took place in the state of Tennessee. The laws of that state, as held by its supreme court, should govern it. That court has held that when usurious interest has been paid, it may be recovered back in a court of equity; if so, it follows that the courts there would restrain the collection of it at any time before payment. The rule there ought to follow the contract, and prevail here. If the appellants are compelled to pay the usurious interest, they will have a right to return to that state and recover it back; and will the courts here drive them to this unnecessary litigation 1
    
    
      5. It certainly cannot be successfully contended that the answer in this case contains such a denial of the allegations of the bill as to justify a dissolution of the injunction. A general denial, however positive, is not sufficient, where the defendant admits, or it is apparent that he “ could not have been personally cognizant of the facts.” MeGvjjie v. The Planters Bank, 1 Freem. Ch. R. 383; Roberts and Boyd v. Anderson, 2 Johns. Oh. R. 204. Here the party disclaims all knowledge on the subject, in one part of his answer, and in another admits that Hays told him on his death bed, that he had charged Smith usurious interest. Nor is it pretended that he stated that the reduction of the note to $1500 would cover the unlawful interest.
    Besides, Bradley, the other defendant, did not answer, although a discovery was prayed from him. It cannot be neces sary to dwell on this point.
    
      6. A word more as to the paper filed with the answer, agreeing to the amount for which judgment was to be rendered. It is at best but matter of avoidance, and the well known rule required that it should have been proved.
    
      A. H. Handy, for appellee.
    1. The bill shows that the complainants are not entitled to relief in equity. The ground of relief set up is usury, and yet the bill distinctly states that a proper plea to the action at law was filed, but withdrawn at the trial, and that no defence was made. Their remedy being ample at law, their own neglect will preclude them from relief in equity. 6 Howard, 569; Thomas v. Phillips, 4 S. & M. 358. This case is even stronger than the one cited; -for there the parties merely failed to make any defence, whereas here, after having placed themselves in an attitude to make the defence by filing an appropriate plea, they abandoned it. No sufficient reason is shown by the bill for pursuing this course. The only pretence for it is the “numerous renewals of the note, and the complicated nature of the transaction.” But it is manifest that all this was as susceptible of proof at law as in equity. It is not alleged or pretended that they are driven into equity for discovery as to these matters; and no reason at all is assigned for their failure to adduce the testimony, if it consisted in other witnesses. If capable of being proved in this court by other witnesses, it was equally susceptible of proof by the same witnesses at law, for certainly the several alleged renewals of the notes were matters that, when proved, a court and jury could easily understand. But if the bill is sought to be maintained on the ground of discovery, we insist that no such distinct ground is set up in the bill, either by allegation made with that distinctness and certainty necessary to support a bill for discovery, or by prayer. Nor does it contain that indispensable requisite of a bill of discovery, an allegation that the facts set up cannot be proved without the discovery of the defendants. Mitford’s PL 191; Wigram on Discov. 213; 1 Madd. Ch. R, (3d Am. edit.) 198. Again, a court of chancery will aid a defendant in obtaining discovery before trial at law, but not afterwards. 4 Johns. R. 510.
    
      2. The answer shows that the defendant, Walker, the plaintiff at law, has no knowledge of the alleged usury, and that no discovery can be obtained, the party who made the usurious contract being dead; so that, even if the bill was properly one for discovery, that object could never be attained, and the bill must be dismissed.
    3. It appears by the answer that the suit at law was pending upwards of two years and a half before the trial. That the complainants should for this long period, fail to make any efforts to substantiate their defence, is certainly such negligence as will debar them of any favor in equity.
    4. The facts stated in the answer go very far to destroy the allegations of the bill, as to usury. 1st. The declarations of Hays, undei; the solemn circumstances attending them, show that they were founded in honesty and truth. 2d. Smith’s expressing himself entirely satisfied with the justice and correctness of the provision of the will, is entirely irreconcilable with the statements of the bill, and goes far to establish the truth of Hays’s declarations. And 3d, The written agreement made between Smith and Walker, on the one part, that the note should be reduced to $1500, at maturity, and on the other, that judgment should be rendered when the suit was reached, and this too after suit was brought, either convicts Smith of the most culpable negligence and the worst faith, or destroys the allegations of the bill. In view of these circumstances his attitude cannot commend him to the favor of a court of equity.
   Mr. Justice Clayton

delivered the opinion of the court.

By the repeated decisions of this court, a party, having a valid defence at law, must make it in that tribunal; and if he fails to do so, equity cannot, after judgment at law, give him relief. This, however, presupposes that the remedy at law is clear, and free from difficulty. See Mewborn v. Glass, 5 Humph. 520.

We think this case is of that description, and does not form an exception to the general rule. The fact of usury could be determined quite as well by a jury, as by the chancellor, and if any discovery were necessary, a resort to chancery might have been had, as well before as after judgment.

There was no error in dissolving the injunction, and the order is affirmed.  