BROWN V. SWANN, 35 U. S. 497 (1836)

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U.S. Supreme Court

Brown v. Swann, 35 U.S. 10 Pet. 497 497 (1836)

Brown v. Swann

35 U.S. (10 Pet.) 497


The statute of Virginia against usury provides that

"Any borrower of money or goods may exhibit a bill in chancery against the lenders and compel them to discover on oath the money they really lent and all bargains, contracts, or shifts which shall have passed between them relative to such loan or the repayment thereof, and the interest and consideration of the same, and if thereupon it shall appear that more than lawful interest was reserved, the lender shall be obliged to accept his principal money without interest or consideration and pay costs, but shall be discharged of all the other penalties of this act."

The complainants in the Circuit Court of the County of Alexandria, in the District of Columbia, filed a bill to obtain relief under the statute against an alleged usurious loan, and made a contingent and prospective offer to pay the principal, when the affairs of the intestate (the borrower) "would admit it," and there was no averment that the complainants were unable to prove the facts sought from the conscience of the defendants by other testimony. Held that the bill was deficient in material averments essential to all such bills of discovery.

When the Legislature of Virginia passed the statute, it fixed the nature and extent of the jurisdiction of a court of equity to compel a discovery upon oath from an interested party in a suit either at law or in equity and the rules which equity had prescribed to itself to enforce its jurisdiction in this regard. It knew the distinction between a bill for such discovery from other bills in chancery, which are also bills for discovery. One of the former is a bill for the discovery of facts alleged to exist only in the knowledge of a person, a party to a private transaction with the person seeking the disclosure, essential to the establishment of a just right in the latter, and which would be defeated without such disclosure. In other words, it is a bill to discover facts which cannot be proved, according to the existing forms of procedure at law. The jurisdiction of a court of equity in this regard rests upon the inability of the courts of common law to obtain or to compel such testimony to be given. It has no other foundation, and whenever a discovery of this kind is sought in equity, if it shall appear that the same facts could be obtained by the process of the courts of common law, it is an abuse of the powers of chancery to interfere. The courts of common law having full power to compel the attendance of witnesses, it follows that the aid of equity can alone be wanted, for a discovery in those cases where there is no witness, to prove what is sought from the conscience of an interested party. Courts of chancery have established rules for the exercise of their jurisdiction to keep it within its proper limits and to prevent it from encroaching upon the jurisdiction of the courts of common law.

The rule to be applied to a bill seeking a discovery from an interested party is that the complainant shall charge in his bill that the facts are known to the defendant and ought to be disclosed by him, and that the complainant is unable to prove them by other testimony, and when the facts are desired to assist a court of law in the progress of a cause, it should be affirmatively stated in the bill that they are wanted for such purpose. chanrobles.com-red

Page 35 U. S. 498

The general rule is that after a verdict at law, a party comes too late with a bill of discovery. There must be a clear case of accident, surprise, or fraud before equity will interfere. Such now is the established doctrine in England, and has been for a longer time the doctrine in the United States. And the doctrine, as applied to a case for relief from usury is that a defendant sued at law on a contract alleged to be usurious will not he entitled to a bill of discovery if he suffers a verdict and judgment to be taken against him, and especially when he does so without making a defense at law. The reason of the rule is that the proof of usury is a good defense at law, and when it is in the knowledge of the defendant, no satisfactory reason can be given why the discovery was not sought while the suit was pending.

Whenever a party seeking a discovery had knowledge of the facts during the pendency of a suit at law, equity will not permit him to do so afterwards to enjoin a judgment.


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