
    BROWN a. MITCHELL.
    
      Supreme Court, First District; Special Term,
    March, 1856.
    Leave to answee. — Ubury.
    The fact that an answer regularly served sets up the defence of usury, is no reason why the court should refuse the defendant leave to amend it in matters independent of that defence.
    Motion for leave to serve an amended answer.
   Davies, J.

This is a motion for leave to serve an amended answer, the original containing a clerical error by using the name of the plaintiff instead of George Bournan, the assignor of the note in suit, and from whom the plaintiff derived title.

Under ordinary circumstances, such a motion would be granted of course.

It is earnestly contended, on the part of the counsel for the plaintiff, that this correction of the defendant’s answer should not be permitted, because they set up the defence of usury.

It may be remarked as an answer to the objection thus urged, that the present is not like Bates v. Voorhees, (7 Pr. R., 234), and other cases cited. They were cases where the defendant sought leave to set up the defence of usury, which the court, for the reasons stated, refused. In the present case that de-fence is set up or interposed, and the question is, will the court permit the correction of a clerical error % I have no doubt of the duty of the court to permit it, however unconscionable may be the defence contained in the answer.

But even if this were a motion to permit the defendant to set up or interpose the defence of usury, I should feel it my duty to permit such an answer under such circumstances to be put in. I cannot but concur with Justice Parker, in Grant v. McCaughan, (4 How. Pr. R., 216), when he said that, So long as the statute makes the taking of usury a defence, it was entitled to be treated like any other legal defence, and he would make no discrimination in imposing terms.

In Catlin v. Gunter, (1 Duer, 253), the court refused to amend pleadings, to conform to the evidence produced on the trial. The reason given was, that “ in our judgment it would not be a proper exercise, but an abuse of our discretion, so to amend an answer after a trial as to let in the defence of usury against a holder for value.”

The judgment of the Superior Court in this case was reversed by the Court of Appeals. (1 Kern., 368). The court say :“We are not, I conceive, warranted in applying a different rule to the defence of usury, from that which we would hold applicable to other cases. It is a defence allowed and provided by law. The defendant, in seeking to avail himself of the evidence, notwithstanding the variance, did not claim an indulgence from the court, but simply asked for the application of those rules which the legislature has provided for all cases indiscriminately, whether the party invoking their exercise was seeking to visit his adversary with a forfeiture or not. The law has not made any distinction between such defences and those where no forfeiture is involved, and the court can make none. If the sense of the legislature is plainly expressed, as it seems to me to be, we have no judgment to pass upon the policy of these provisions.”

The motion, therefore, must be granted, on payment of $10 costs of opposing.  