Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-03-10
DECISIONS OF THE SUPREME
COURT.
Nashville, December Term. 1856.

OF equity will not entertain bill for relief, eK
cept in special cases. where the complicated ans
embarrassed state Of facts in which the usUrl
| originated and consists are such as 10 render in
adequate the remedy at law.
2 DIsCOYERT.-A bill for discovery must al
ege, and II required, the fact must be estab
| lished, the plaintiff is unable TO prove by Othel
testimony the evidence sought 10 be disclosed
an omission to state this Will, on demurrer. b.
fatal 70 the bill as a bill Of discovery.
! 3. SANE, CoRPORATfOSs.-Wh here disclosure
u sought from corporation, its principal oficel
or agent may be made a party, although such
officer or agent has no individual interest in the
suit, and no relief can be had against him.
4 SAME.-As a general rule, courts of equity
viii net enforce forfeitures, or, on bill Of dis
covery, oblige the defendants 10 disclose what
nag subject BIN 10 a penalty. forfeiture ol
criminal accusation.
s. SAM. ANSWER NOT UNDER OATH-The ans
( EeF Of an Individual not under oEth, where this
oath is expressly waived hy complainant. even
IN bill for discovery, though directly resp0n-
slFe 70 the allegations IN the Dill, creates only
an issue Of pleading and does not sntitle thede-
iendant, without more. 10 decree in his favor.
A. y S. Lindsey ps. John d. James, et ais.
This is a bill fled in the Chancery Court
at Nashville, to enjoin an action at law, for
discovery and general relief f
! The bill alleges that, on the 9Th of Janu-
/ ary 1857, the defendant, NJ. w. Whetmore,
made his promissory note, due and payable
twelve months from the date thereof for
the sum Of $4,000, upon which the COM
| plainant, Lindsey, became the accOmmo-
dation endorser. The note was afterwards
discounted by the Bank of Commerce, of
which the defendant, John d. James, was
the President and principal owner. The
bank, az stated in the bill, made an assign
ment Of its assets after the note in contro-
yersy was discounted, 10 the defendant,
| Thomas q. James, as trustee, for certain
purposes specified in the trust. This note
was passed under this assignment to the
! trustee.
Ii further appears that since the assign
ment, the defendant, John ID. James,
brought his action at law in the Circuit
Court Of Davidson county, in his own name
and right, 10 recover the note, and that he
| Is prosecuting IL to final Judgment.
The bill also charges that the note was
| discounted at usurious rates of interest,
greatly beyond the legal rate of six per
cent; and that the same should have been
credited on the note before suit.
II is further alleged, that Whetmore
assigned to the defendant John D. James,
and the Bank, several thousand dollars in
other paper, to secure the payment of the
note, and that he had since made large
payments thereon, for which the complain
| ant is entitled to credits. The payments
and collaterals assigned to secure the note,
as charged in the bill are, if properly ap-
piled, sufficient 10 extinguish the note.
But the former have not been credited, and
the latter are lost, or misapplied. The
amount Of both are unknown to the com
plainant; and Whetmore has left the State
insoIyent
The bill seeks discovery Of the amount
OF the collaterals and the payments. and
their application as credits on the note in
controversy. ... r..
The discovery is sought against the
bank, and the defendant, John d. james;
and they are required to answer, but not
under oath.
The defendants, John d. James and the
bank, demurred 10 the bill, which was
sustained by the chancellor, and the bill
dismissed, From this decree the COM
plainant prosecutes an appeal in error to
this court.
There are six specific causes of demurrer
assigned, which constituted the chief
grounds Of contest in the court below; and
they are made the basis Of the argument
here.
For all the practical purposes of this
case, it will not be necessary to notice the
several grounds Of demurrer separately. Ii
is sufficient 10 refer to such only as are
necessary TO this adjudication, and upon
which this decision must turn.
The bill, as alleged in the demurrer, fur
nishes 20 ground Of relief in a Court of
Equity. 1t is clear, under oGr practice,
that Court of Chancery has no jurisdiction
when the party has perfect remedy at
law, free from difficulty and embarrass-
ment Meigs' Digest, par. 3S6. But it
is not at all times readily ascertained
whether or not such a remedy exists. Each
case rests on its own peculiar facts and cir
cumstances, and they must be Judged of by
the court hearing the cause and if the
remedy is complete, ,tlnembarrassed and ad-
equate at law, Court Of Chancery will not
entertain jurisdiction.
Admitting this to be the rule in such
cases governing courts Of law and equity,
it is insisted that the Jurisdiction of Courts
Of Equity over usurious contracts is only
statutory, and that the act Of 1916, ch l67,
which conferred the jurisdiction, is repealed
by the 4lsi section of the Code, and the iu-
risdiction of Courts of Chancery, in matters
Of usnry, goes with the repeal of the
statute
We do not concur in this view of the
law The act of 1885, Ch. 50, which, with
some modification, has been carried into
the Code, has never been held ~ either con-
lerring upon or ousting Courts of Chan
cery Of their jurisdiction over usurious son
tracts
The jurisdiction Of Courts Of Equity and
A d. g,
current even before the statute Of 1885.
The statute conferred no new inrisdic-
ton on either tribunal IL prescribed the
mode in which, in court Of law, the plea
Of uslry might be made svailing. Courts
of equity, land indeed Courts Of law, also
SAYS Judge Story, will assist the borrower
10 recover back the excess paid beyond
principal and lawful interest hut no far
! ther. For il is no lust objection to say that
he is pdrticrps crimiaiS, and that UolenG non
f iIVWid. IL would be absErd 10 apply
the latter maxim 10 a man, who from mere
/ necessity pays more than the other can in
Justice demand. snd who has been signif-
cantly called the sldps of the lender. He
can in no Just sense be said 10 paw volun-
tarily, and as to the pdrticeps c1iminiS, he
stands ia riacltliS and is compelled to sub
nit 10 the terms which oppression and ne
cessity impose upon him. ] Story's Eq.
in. 5SO2.
The same principle is fully Recognized
in the case of Bnmpass as. Realms ! Sneed
SOS la that case il is held in direct refer
ence 70 the act of 1885, ch. so, that courts
of law aud equity have concurrent jurisdic-
tionofthe subject Of usuy, and therefore the
| couu Which6rsi hss possession Of The subject
must, upon principle, Gnally conclude it
| by is Judgment, subject 20 csses. And
80 IL Nas held hy this Court, that after
"a trial at Law court OF equity
will not entertain a bin for relief
againsi usury, except in special cases, when
On account of the complicated and embar-
rassed state ot facts in which the usary
originated ard consists, the remedy was
insufficient and inadequate Cor its redress.
Mchotn rs Cooley, 3 Hmm SCI, Frierson
! az Moody Hum. 565
But this rule was changed by the act Of
/ lS44. ch. l67, which in substance and
effect declared, that in usury cases courts
Of equity shall entertain jurisdiction, and
give relief. notwithstanding there was a
trial al law. and the defendant failed to
make his defense or having made IL.
failed for want of proof