Walker v. Walker

By the Court.

Warner, J.,

delivering the opinion.

It appears from the record in this cause, that the plaintiff iti error filed his bill in the Court below, against the defendant, for discovery, in relation to an usurious contract.

The complainant alleges that his testator, John Walker, on the 23d day of March, 1840, borrowed from the defendant, at usurious interest, the sum of $1,600, and gave his note therefor, with security, for the sum of two thoasand dollars, to fall due on the 23d day of March, 1841, being one year after the date of the note ; that he then renewed the note at 16 per cent., and gave his note with security for $2,320; that .lie again renewed at sixteen per cent., and gave his note for the sum of $2,691 20, to fall due on the 23d March, 1843 ; that when this last note fell due, the note was taken up and a new note given therefor, for the same amount, due on the 25th day of December thereafter, with interest from the 25th December preceding; but if the principal sum was paid punctually the interest to be remitted. On this last note two securities were given, and a mortgage on several slaves, which has been foreclosed ; and the complainant now seeks a discovery from the defendant as to these various transactions, for the purpose of establishing the fact, that the note which the mortgage was given to secure, is founded on the original usurious transaction. The defendant has filed his answer, in which he states, it is not true that the note for which the mortgage was given, was given for the consideration charged in the bill, to wit, for the loan of $1,600 at the usurious rate of interest of twenty-five per tent., which said note was renewed in 1841 at sixteen per cent., and again renewed in 1843. The defendant totally denies all such allegations and charges.

To this answer of the defendant, the complainant below excepted, which exceptions were overruled by the Court, and the answer held to be sufficient: whereupon the complainant excepted to the decision of the Court below, and now assigns the same for error here. Upon an examination of the allegations made by the complainant, and the answer of the defendant, we are of the opinion that the exceptions to the defendant’s answer ought to have been sustained, and the defendant ordered to answer over.

[1.] So far from answering the allegations as required by the rule in such cases, we think the answer is a complete evasion of the most important and material averments in the complainant’s bill. The complainant did not charge that the note for which the mortgage was given, was given for the loan of $1,600 : the note for which the mortgage was given was for the sum of $2,691 20, being the third renewal of the original note, which was given for two thousand dollars for the loan of only $1,600. The case made by the complainant’s bill is, that there was a loan of $1,600 on the 23d of March, 1840, at the rate of twenty-five per cent, per annum, and that the complainant’s testator executed his note payable 23d of March, 1841, for the sum of $2,000, and which was continued by renewals, until the 23d March, 1843, when the note which the mortgage was given to secure, was executed.

It will only beneeessary, to state the rule toshowthat the answer of the defendant in this case is not in compliance with its requisitions. “ An .answer must be full and perfect to all the material allegations in the bill. It must state facts, and not arguments. It is not sufficient that it contains a general denial of the matters charged, but there must be an answer to the sifting inquiries upon the general subject. It should also he certain in its allegations, as far as practicable. To so much of the bill as it is necessary and material for the defendant to answer, he must speak directly, and without evasion; and he must not merely answer the several charges literally, hut he must confess or traverse the substance of each charge. And wherever there are particular precise charges, they must be answered particularly and precisely, and not in a general manner, though the general answer may amount to a full denial of the charges.” Story Eq. Pl. sec. 852.

The complainant makes particular and precise charges in relation to the loan of #1,600, in 1840, and the rate of interest, and the various renewals of the notes, down to the time of the execution of the note which the mortgage was given to secure, and is therefore entitled to have from the defendant, a particular and precise answer to each allegation; not a general denial but a direct and specific answer to each separate charge, as the rule requires.

~We are of the opinion, that the complainant ought to have [2.] been permitted to amend his bill in the particulars specified, as the proposed amendment related to matters which existed prior to the filing of the same.

“Amending the bill may be useful for various purposes: for the correction of mistakes,- or for the suppression of impolitic admissions in the original statemenis; or for adding new parties; or for inquiring into additional fads-; or for the further investigation of facts which have been only partially disclosed; or for putting in issue new matter stated in the answer. If the plaintiff, after he has filed his bill, finds that he has omitted, to state any matter, or to join any person party to the suif which he ought to have done, he may supply such defect by amending -his bill. Or if, after the defendant has put in his answer, the plaintiff thereby obtains new lights as to the circumstances of his case, he may amend his bill, in order to shape his case accordingly. And in general, any imperfection in the frame of a bill may be thus remedied, as often as occasion shall require; but the matter introduced by amendment must not be matter which has happened since the filing of the bill, (which is teamed new matter,) unless indeed the defendant has not put in his answer, in which case the bill maybe amended by adding supplemental matter.” Story Eq. Pl. sec. 884, 885. The amendment sought to be made by the complainant, relates to the same subject matter as originally charged; it does not make an entire new case, but seeks only to introduce additional facts to strengthen and support the charge of usury originally made by the bill, between the same parties, and relating to the same contract.

Injunction bills may he amended without prejudice to the injunction, by leave of the court. Eden on Injunctions, 88. In Sharp vs. Ashton, 3 Vesey & Beam. R. 144, the answer of the defendant had been referred for impertinence, and the impertinence being expunged, the plaintiff took exceptions, which were allowed ; the plaintiff then amended, and obtained an order that the defendant should answer the amendment and exceptions together. As the defendant in this case must answer the exceptions, he can at the same time answer the amendment, and there will he no delay. The order for amendment will he made without prejudice to the injunction. Let the judgment of the Court below be-reversed.