McLaren v. Steapp , 1 Ga. 376 ( 1846 )

By the Court.

Warner, Judge.

This case comes before the court on a writ of error, from the county of Campbell, alleging error on the part of the court below, in not sustaining a general demurrer to a bill in equity, filed by the defendant in error, against the plaintiff in error, for discovrey and relief. The complainant in the bill seeks a discovery from the defendant in relation to various usurious transactions, which it is alleged took place between the parties, from, the year 1838 up to the year 1843, whereby the defendant received from the complainant the sum of one thousand dollars, or other large sum, and also prays an account of the money so received by way of usurious interest by the defendant, and that he maybe decreed to pay the same to the complainant. It is also charged, in the complainant’s bill, that various notes were given by the complainant to the defendant, due at different times, and drawing different rates of interest; that the whole of the usurious interest was paid without any judgment being obtained against him therefor; that he does not know the excess of usury due him from the defendant, over and above the principal and lawful interest; and that he has no way or means of establishing the same by evidence, without resorting to the conscience of the defendant. The defendant demurs to the complainant’s bill generally, for want of equity, and that he had an adequate common-law remedy. There are several assignments of errors, but they may all be embraced, and disposed of together. The defendant insists, that as an action at law would lie, to recover back the usury from him, this court has no jurisdiction ; and if this court had jurisdiction, for the purpose of obtaining a discovery from the defendant, it can be obtained for the purpose only of aiding a suit in a court of common law'. The argument for the plaintifF in error is, that the complainant below should have instituted his suit in the common-law court, to recover back the usury; and then come into this court for the discovery, in aid of that suit. This is a bill for discovery and account. Account is one of the ancient heads of equity jurisdiction. — 1 Madd. Ch. 23. Courts of equity, as well as courts of law, have concurrent jurisdiction in cases of accounts.— 1 Madd. Ch. 85; Cooper's Eq., under head of Jurisdiction, 29; 1 Story's Equity, 423-4, sections 441, 442; ib. 438, sections 457, 458. We do not intend to be understood as establishing the rule, that a plaintiff may go into equity to recover every demand which he may have founded on account, where he has a plain and adequate remedy at law ; but that a court of equity has concurrent jurisdiction, with courts of law, in matters of account, where there is doubt or difficulty as to his right to recover in a court of'law. In all cases of account, where the remedy of the plaintiff would not be as adequate and complete in a court of law, as in a court of equity, either from the defect of proof or other impediment, or for the purpose of avoiding a multiplicity of suits, the jurisdiction of the latter court attaches. Indeed, if it is necessary for the plaintiff to search the conscience of the defendant, in order to establish his account, he may come into a court of equity for the discovery in the first instance, and the court will not only give him the discovery, but will (on a proper prayer for that purpose) proceed to decree to him the appropriate relief consequent upon that discovery. 1 Madd. Ch. 85; Cooper's Eq. under head of Jurisdiction, 30, 31; 1 Story's Eq. 81-87, sections 64-71; ib. 437-8-9, sections 456, 457, 458; Carlisle vs. Wilson, 13 Ves. 276; Post vs. Kimberley, 9 John. Rep. 470; Rathbone vs. Warren, 10 John. Rep. 605; King vs. Baldwin, 17 John. Rep. 388; Hawley vs. Cramer, 4 Cowen's Rep. 727; Russell vs. Clark's Ex’rs, 7 Cranch, 69.

In this case, the complainant alleges, there have been, during several years, various renewals of notes, different usurious contracts made with the defendant, which necessarily renders the account sought, intricate and complicated, and that he cannot prove these usurious transactions without a discovery thereof by the defendant. That the complainant is entitled to the discovery, there can be no doubt; and the court having jurisdiction of the cause for that purpose, ought, both on principle and authority, to retain it, and decree the appropriate relief, consequent upon such discovery ; or, as was said by the court in Russell vs. Clark's Ex'rs: “ If certain facts, essential to the merits of a claim purely legal, be exclusively within the knowledge of the party against whom the claim is asserted,he may be required, in a court of chancery, to disclose those facts ; and the court, being thus rightly in possession of the cause, will proceed to determine the whole matter in controversy.” Besides, the demurrer in this case went to the whole bill; and the rule is, “ where there is a general demurrer to the .whole bill, filed for discovery and relief, and the plaintiff is entitled to an answer to any part of the bill, the demurrer will be overruled.” — Kimberley vs. Sells, 3 John. Ch. Rep. 467. In Dey vs. Dunham, (2 John. Ch. Rep. 191,) it is said : “ There is no doubt that a court of chancery will order a defendant to account for money, overpaid, in pursuance of a usurious contract.” The reason why a court of chancery, in this State, should grant the relief, consequent upon a bill of discovery in cases like the present, is greatly strengthened by the consideration, that all equity causes are tried by a jury, under the direction and supervision of the chancellor, and which would be as competent to settle matters of account as a common-law jury.

We are therefore of the opinion there is no error in the record; and that the judgment of the court below must be affirmed.