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16 Miss. 131

Smith v. Walker

Court of Appeals of Mississippi

Decided January 15, 1847

Court of Appeals of Mississippi · decided 1847-01-15

<p>A party, having a valid defence at law, must make it in that tribunal; and if he fail, to do so, provided his remedy at law be clear and free from difficulty, equity cannot, after judgment at law, give him relief.</p> <p>Usury is a defence, which can be made at law, before a jury, when a party is sued on an usurious contract; and if he neglects to make it there, he cannot come into a court of equity for relief, after judgment; if any discovery from the other party be necessary, in aid of the defence at law, a resort to chancery can be had, before the judgment; and the necessity for such discovery, is, therefore, no excuse for not having defended at law.</p>

Decided 1847-01-15

Mr. Justice Clayton

¶1delivered the opinion of the court.

¶2By the repeated decisions of this court, a party, having a valid defence at law, must make it in that tribunal; and if he fails to do so, equity cannot, after judgment at law, give him relief. This, however, presupposes that the remedy at law is clear, and free from difficulty. See Mewborn v. Glass, 5 Humph. 520.

¶3We think this case is of that description, and does not form an exception to the general rule. The fact of usury could be determined quite as well by a jury, as by the chancellor, and if *138any discovery were necessary, a resort to chancery might have been had, as well before as after judgment.

¶4There was no error in dissolving the injunction, and the order is affirmed.

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