Cooper and another vs. Tappan.

dition that the complainants should first execute a bond to the defendant in the sum of $2,100, conditioned to pay the judgment which was enjoined, and also a bond in the sum of $500, conditioned to pay the damages as provided in section 99 of the revised statutes, above referred to.

We think that the order was correct, so far as it related to the security to be given in order to obtain the injunction; we are therefore brought to the consideration of another objection made by the appellant, and that is, that one of the bonds which was in fact given, did not conform to the order of the judge. The deviation consists in omitting from the [369] bond any penalty, while the order of the judge directs that the bond shall be given in the sum of $500.

We think that we are relieved from the necessity of deciding what the effect of the omission would be, by the fact that a new bond, which conforms to the order made by the judge, was afterwards filed in the case.

This brings us to the consideration of the main objections made by the appellants to the order of the court below, which are: 1st, that the bill discloses no equity, and 2d, that if we should be of opinion that upon the case made by the bill, the complainants are entitled to relief, the answer fully denies the material allegations of the bill.

We do not think that either of the positions taken by the appellant can be sustained. The bill sets up a parol agreement made by the complainants and the defendant, by which the note which was given by the former to the latter should not be the subject of legal proceedings to enforce its collection for two years, unless the complainants became embarrassed and were in failing circumstances, while the note, by its terms, was payable in one day after date; in other words, the bill sets up a parol agreement, made at the time when the note was signed, which materially varies its import and changes its character. To this part of the bill, the objection of the appellant is well taken. The principle that a party to a written contract cannot

Cooper and another vs. Tappan.

vary or control it by a parol agreement, made before the written contract was entered into, or simultaneously with it, is too well settled to require the citation of any authorities to support it. But the bill clearly alleges that when the note was signed, an usurious contract was made by which the defendant reserved a greater rate of interest upon the note than the maximum allowed by the statute (Sess. L., 1851, ch. 172); and that this was done by the making of the other notes described in the bill. The statute above cited makes contracts of this nature void, and provides that no court of equity shall "require or compel the payment or deposit of the principal sum or any part thereof, as a condition of granting relief to the borrower, in any case of usurious loan forbidden by this act.”

Before the enactment of this statute, according to the settled practice of courts of equity, no relief would be granted to a party complainant, except upon the equitable terms [370] or condition that he would pay to the defendant the sum which was equitably due, although the statute provided that all bonds, notes or other contracts or securities wherein or whereby a greater rate of interest was reserved or taken than the statute allowed, should be void, and although the bill of complaint alleged that the contract against which relief was prayed was of that character. Tupper v. Powell, 1 Johns. Ch. Rep., 439; Fanning v. Dunham, 5 id., 122. But we think that this subject is within the control of the legislature, and that, since the passage of the act above referred to, courts of equity in this state are compelled to grant relief against such contracts in the manner which the statute prescribes. Livingston v. Harris et al., 3 Paige, 528. We do not, therefore, see how a bill which sets up such a contract, and prays for relief against it, can be defective for want of equity, although it does not contain an offer to pay the sum equitably due. We must, therefore, hold that the first objection taken by the appellant to the bill cannot be sustained; nor do we think that the answer of the defendant so fully denies the allegation of usury VOL. IV-25

Cooper and another vs. Tappan.

contained in the bill as to warrant the dissolution of the injunction.

Upon this part of the case, we cannot express our opinion fully without, perhaps, prejudicing the rights of the parties in the subsequent prosecution or defense of the suit. We, therefore, will only say, that the allegation of usury contained in the bill is not so fully and satisfactorily denied, and with such circumstances of credibility as to justify the dissolution of the injunction. 1 Bland R., 194; 2 Johns. Ch. R., 202; 3 Sumner R., 70.

As the statutes of the state of New York are similar to ours, we were referred, at the argument, to the case of Livingston v. Harris et al., 3 Paige, 528, to show that the injunction in this case was improperly allowed, for the reason that the bill does not waive the penalty which the statute imposes in cases of this nature. In the case above referred to, the bill stated that an action at law had been brought by the defendant Harris, against the complainant and the other defendant on a joint and several note, which the complainant had signed as surety, and which he had subsequently discovered was given to secure a usurious

loan. The bill prayed for a discovery; that the note [371] might be delivered up to be canceled; and for an injunction to stay the proceedings at law.

The court held, that inasmuch as the bill did not contain an offer to pay the sum which was equitably due, but insisted upon the penalty which the statute imposed, the complainant was not entitled to any discovery from the defendant. It was held, that to compel the defendant to discover as to the usury, would be to compel him to answer as to matters which might subject him. to a forfeiture, and that it would be inconsistent with the spirit. of the constitution to compel a party to be a witness against himself in such a case. It was also held, that the complainant was not entitled to relief, because he "had a perfect defense at law, if he could establish the fact of usury without a discovery from the defendant." The injunction was therefore dissolved.

Cooper and another vs. Tappan.

The difference between this case and the one before us is very apparent. Here a judgment has been recovered, and the only adequate relief to be obtained is by application to a court of equity.

The bill must, therefore, be sustained, as a bill for relief, even admitting that the complainants were not entitled to the discovery which they sought, if it sets up facts which warrant the interference of a court of equity, and upon this subject we have already expressed our opinion. The defendant could not, perhaps, have been compelled to answer that part of the bill which sought a discovery of the alleged usury, but if the usury can be established by other legal testimony, we do not see why the complainants are not entitled to the relief prayed for in the bill.

The order of the circuit court must therefore be affirmed.

NOTE. INJUNCTION. · The section referred to in the opinion read: “No injunction shall issue to stay proceedings at law in any personal action after judgment, unless, 1. A sum of money equal to the full amount of such judgment, including costs, shall be first deposited by the party applying for such injunction, or a bond in lieu thereof, be given as hereinafter di rected; and 2. Unless such party, in addition to such deposit, shall also execute a bond, with one or more sufficient sureties, to the plaintiff in the said judgment, in such sum as the judge or officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff and his legal representatives of all such damages and costs as may be awarded to them by the court at the final hearing of the cause."

The present statute relating to injunctions and the security thereon in ch. 129, R. S. 1858; 2 Tay. Sts., 1461.

Appeal from order made at chambers does not lie to this court. Party should move at term to vacate chamber order, and from order denying motion, appeal lies. Gen. Laws, 1860, ch. 264; 2 Tay. Sts., 1635. Moore v. Cord, 13 Wis., 413; Eaton v. Gillett, 16 id., 546. But from order at chambers discharging attachment, denying, dissolving, vacating or modifying injunction, immediate appeal lies. Gen. Laws 1861, ch. 139; 2 Tay. Stats., 1641. Constitutionality of act questioned. Punch v. New Berlin, 20 Wis., 189. Vide Couldren v. Caughey, 29 id., 317.

WRITTEN CONTRACT. - Parol evidence not admissible to vary terms of. Cooper v. Tappan; Gregory v. Hart, 7 Wis., 532; Racine Co. Bank v. Lathrop, 12 id., 466; Same v. Keep, 13 id., 209. But where note is given, evidence is

Downer vs. Staines and another.

admissible to show that by parol agreement it was to be paid in particular manner. Jones v. Keyes, 16 id., 562. But not to show that it might be paid in bank notes. Racine Co. B'k v. Keep. But is, to show that by subsequent agreement the note has been paid. Tilson v. Gilbert, 26 id., 637. And to show what was said or agreed, for purpose of showing failure of consideration. Peterson v. Johnson, 22 id., 21; Smith v. Carter, 25 id., 283.

Evidence of collateral contemporaneous written agreements admissible, and are construed together. See cases above cited. Norton v. Kearney, 10 Wis., 443; Page v. Smith, 24 id., 368.

USURY.

See note to Platt v. Robinson, 10 Wis., 128, and cases there cited.

Also note to Dudley v. Beck, 3 id., 274.

[372]

DOWNER VS. STAINES and another.

Illegibility of a bill in chancery is not a cause of demurrer. The proper course is, if the fact exist, to move to strike the bill from the files.

APPEAL from the Dane Circuit Court.

Demurrer to the complainant's bill on the ground that it was illegible. Demurrer sustained, and the complainant appealed. J. Downer, for the complainant.

Abbott and Petherick, for defendants.

By the Court, WHITON, C. J. The sole cause of demurrer to the bill of complaint is, that it is illegible. We do not think this a ground of demurrer. If the fact alleged as a cause of demurrer exists, the defendant should have moved in the court below to strike the bill from the files.

NOTE. S. C., 5 Wis., 159. Circuit Court Rule No. 29 under present practice requires that "all the pleadings and other proceedings and copies thereof be fairly and legibly written, and if not so written, the clerks shall not file such as may be offered to them for that purpose."

Order setting aside service on ground of illegibility of pleading served, and allowing twenty days to serve same on terms, not appealable. Orton v. Noonan, 32 Wis., 104.