Grant v. McCaughin — 4 How. Pr. 216

Majority

p. 216

SUPREME COURT.

E. T. Grant and al. vs. John McCaughin and al.

Headnote

Where a defendant is aEowed to answer on payment of costs, the court wiE not impose the further condition, that the defendant shaE not set up the defence of usury.

Albany Special Term,, January, 1850.

In this case Mr. C. L. Austin moved to set aside a judgment and showed that the defendant had a good defence on the merits and that judgment had been entered in consequence of a misapprehension as to the effect of a stipulation that had been given to him extending the time to answer.

Mr. W. L. Earned, resisted the motion, and showed that an execution had been issued, and that the answer tendered to him only set up the de

p. 217

fence of usury; and claimed that if the defendants were let in to answer on terms, it should be on the condition that they should not seek to avail themselves of the defence of usury.

Parker, Justice, allowed the defendant to answer, on paying to the plaintiff $3.50, (being one-half the sum allowed by the code for the services of his attorney in prosecuting the action to judgment,) together with the disbursements included in the judgment and incurred on the execution, and also $10 for his costs of resisting the motion.

But he refused to impose any condition as to the nature of the defence. He said so long as the statute made the taking of usury a defence, it was entitled to be treated like every other legal defence, and he would make no discrimination in imposing terms. One of the defendants being insolvent, the judgment was directed to stand as security.