Wayne County MI Archives Court.....Barrows, Vs Doty 1837 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/mi/mifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:06 am Source: Cases In Chancery Written: 1837 CASES IN CHANCERY. Juba Barrows and others v. Ellis Doty. Equity jurisdiction: Remedy at law. The court of chancery will not take jurisdiction of a case where there is a plain and adequate remedy at law. (a.) Laches in making defense at law. A party who has a defense at law, of which he is advised, and neglects to make it, comes too late into this court to ask to be relieved against the judgment. (b.) The bill in this cause was filed in the circuit court for the county of Wayne, February 7, 1837, before the organization of the court of chancery, and afterwards was transferred to this court. The bill stated that, in the month of February, 1834, Juba Barrows, being under pressing necessity for money, made his wants known to one Charles Tryon, who said he expected to have money put into his hands by another person to loan, which other person Barrows understood to be Ellis Doty; that soon afterwards Tryon did actually loan to Barrows $44, for which he gave his two several promissory notes for $33 each, payable in ninety days to Tryon or bearer, which notes were signed by Thomas Palmer and John Howard as sureties; that it was at the time agreed between Barrows and Tryon that if Barrows should pay fifty dollars when the notes became due, it was to be received in full satisfaction thereof, and if not paid at that time, Barrows should pay the amount of fifty dollars with four per cent per month, from the time the same became due; that Tryon afterwards became indebted to Barrows in the sum of twenty dollars, which Tryon agreed to endorse on the notes; that when the notes became due Barrows called on Tryon several times with the money to pay the notes, and he made excuses that he could not attend to it then, saying a few days would make no difference, and on one occasion said the notes were at Judge Doty's; that Doty afterwards told Barrows that he held the notes and that payment was to be made to him; and further told him that he took the notes for the face of them, and should not allow the twenty dollars which Tryon had agreed to endorse; that Barrows offered then to pay the notes if Doty would deduct the twenty dollars, which he refused to do; that Doty afterwards recovered judgments on the notes for the full amount of the face of the same, and was about to take out execution. The bill further alleged that Barrows had always been ready and willing, and still was ready and willing to pay the actual amount of money loaned, with legal interest thereon, and prayed for an injunction to restrain the collection of the judgments. A preliminary injunction was granted January 2, 1835. A. D. Frazer, for defendant, moved to dissolve the injunction and to dismiss the bill for want of equity. H. Chipman, contra. The Chancellor. This bill cannot be sustained, for the usury was a good defense at law, and Tryon, being the agent who negotiated the loan, must have known all the facts, and might have been called as a witness. The complainants have suffered judgment to be taken on the notes with a knowledge of all the facts, without making their defense, and they come too late to this court to ask to be relieved against those judgments. See Thompson v. Berry & Van Buren, 3 Johns. Ch., 394; Lansing v. Eddy, 1 Johns, Ch., 49. The injunction must be dissolved and the bill dismissed. (c.) Ordered accordingly. ------------------ (a.)—See Wales v. Newbould, 9 Mich., 45; Bennett v. Nichols, 12 Mich., 22. If however, the remedy at law is difficult or doubtful, that fact is sufficient to give equity jurisdiction. Ankrim v. Woodworth, post, 355. And see Wheeler v. Clinton Canal Bank, post, 449; Edsell v. Briggs, 20 Mich., 429. The objection that there is an adequate remedy at law should either be taken on demurrer or insisted upon by the answer; and if the defendant answer fully without taking it, the court, when the case is brought to hearing on pleadings and proofs, may disregard it: Stockton v. Williams, Wal. Ch., 120; except where the case made by the bill is not one of equitable cognizance, in which case the objection will be fatal in any stage of the case. Bennett v. Nichols, 12 Mich., 22. (b.)—See to the same effect Wright v. King, post, 12; Mack v. Doty, post, 368; Roberts v. Miles, 12 Mich., 297. So if he is ignorant of his defense, but this ignorance is connected with negligence, and might have been avoided by the use of ordinary means to obtain the necessary information, equity will not relieve; Wixom v. Davis, Wal. Ch., 15; compare Wales v. Bank of Michigan, post, 308. But if a party is prevented by fraud or accident, or by the act of the opposite party, from making his defense at law, he is not precluded by the judgment from having relief in equity: Mack v. Doty, post, 366; Burpee v. Smith, Wal. Ch., 327. In Campau v. Van Dyke, 15 Mich., 371, a party who, with knowledge of all the facts, delayed for over six years to file a bill to impeach for fraud a decree affecting the title to land, was held to have lost all remedy by his laches. And in Campau v. Godfrey, 18 Mich., 27, it was decided that one having a statutory right to redeem who fails to exercise it in due time, can have no relief afterwards in equity. (c.)—See Wright v. King, post, 12. The case of Thompson v. Berry, cited above by the chancellor, was affirmed by the court of errors on appeal, in 17 Johns., 436, and was cited in the court of appeals with approval in Schroeppal v. Corning, 6 N. Y., 114. Additional Comments: CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN BY ELON FARNSWORTH, Chancellor File at: http://files.usgwarchives.net/mi/wayne/court/barrows15gwl.txt This file has been created by a form at http://www.genrecords.org/mifiles/ File size: 6.2 Kb