Sea Insurance v. Day — 9 Paige Ch. 369

Majority

p. 369

The Sea Insurance Company vs. Day and others.

Headnote

Where the defendants in a foreclosure suit, who had set up the defence of usury in their answer which was put in without oath, applied for an issue to try the question of usury by a jury ; Held, that an issue ought not to be granted without an affidavit showing some probable grounds for believing that the defence of usury could be sustained by proof, and that the issue was not asked for by the defendants for the purpose of delay merely.

December 11.

This was an application, by the defendants, for an issue to try the question of usury set' up in the answer. The complainant resisted the application on the ground that the answer, setting up the defence of usury, was put in without oath, and that the allegation of usury therein was untrue in point of fact.

C. M. Jenkins, for the complainant.

C. Stevens, for the defendants.

said, that to entitle the defendants to an order for an issue to be tried by a jury, in such a case,

p. 370

they must show by affidavit or otherwise, to the satisfaction of the court, that they had probable grounds of defence, and that the answer was not put in for mere delay. That as the answer in this case was not sworn to by any one who was willing to state on oath that he believed the allegation of usury could be sustained by proofs, the awarding of an issue would be productive of unnecessary expense and delay.

Motion denied with costs.