« ΠροηγούμενηΣυνέχεια »
payable at future days in yearly installments, with annual interest; but plaintiff cannot set forth the precise language and terms of said bond, as said bond is now in possession of said James Grant and John Cowan, or one of them.
That, in pursuance of said usurious agreement, at the time of the execution and delivery of said bond, the plaintiff, for the further securing the payment of said sum of $1,091.78, and interest, at the times and in the manner aforesaid, also executed and delivered to said James Grant and John Cowan a certain indenture of mortgage, bearing date the day and year last aforesaid, upon certain real estate, being the farm owned and occupied by the plaintiff, described therein as follows: [Insert description.]
That said James R. McLaughry was the son of the plaintiff and was of full age, and had resided in the county of Delaware, and that in the autumn of the year 1833 he had sailed from New-York to some port in some of the southern states, with a quantity of butter in charge for sale; that he never returned, except for a few weeks in the spring of 1834, and that it was generally known that he had failed and become insolvent, and that demands against him were notoriously worthless; that it was believed he never would return again, and that he never has since returned to this state, as plaintiff believes, except as above stated.
That the said plaintiff was not owing anything to said James R. McLaughry, but that said James R. McLaughry was owing said plaintiff, and that said James R. McLaughry had no funds or property in the hands of said plaintiff, and had never, in any manner, requested him to pay said debts, claimed to be due from said James R. McLaughry, to said James Grant and John Cowan, or either of them; that it was claimed said debts were due from
said James R. McLaughry to said John Cowan and James Grant, severally, for a quantity of butter each of them had sent by said James R. McLaughry to the south to sell, at the time he went to one of the southern ports, as aforesaid.
That the said consideration of said, bond and mortgage was as follows, viz: cash loaned to the plaintiff $500; debts claimed to be due from James R. McLaughry to said John Cowan, $285.78; and debts claimed to be due from said James R. McLaughry to said James Grant, $306 (the interest on said alleged debts being included in said sums so due from said James R. McLaughry), amounting in all to the sum of $1,091.78; that, with interest thereon, being the sum secured to be paid by said bond and mortgage.
That all the money said plaintiff received from said James Grant and John Cowan, or either of them, for which said bond and mortgage were given, was the said sum of $500, and that the plaintiff received from them no other property or value whatever; and that, to induce them to loan to the plaintiff the said sum of $500, the plaintiff agreed to pay to them the said sum of $1,091.78, and the interest thereon, as aforesaid, executed and delivered to said James Grant and John Cowan the bond and mortgage aforesaid, and that the plaintiff was driven by his own necessities to submit to said conditions, so imposed by said James Grant and John Cowan, for the sole purpose of obtaining said loan of $500, as aforesaid.
That payments have been made by the plaintiff, to apply on said bond and mortgage, amounting to about
$280. On sai
And the plaintiff further shows, that the said James Grant and John Cowan are proceeding to foreclose said mortgage by advertisement, under the statute, and that said advertisement was first published in a paper called the Delaware Express, printed and published at Delhi, in the county of Delaware, in January, 1841, and which notice is published weekly in said newspaper, and that said published notice is, in substance, as follows: [State substance of notice, time and place of sale, &c.]
Wherefore the plaintiff demands judgment against the defendants, that they may be adjudged to surrender to the plaintiff, and to cancel, said bond and mortgage, and that said bond and mortgage may be declared void; or that said James Grant and John Cowan may be adjudged to execute to the plaintiff, under their hands and seals, a release and discharge from said bond and mortgage; or, in case said bond or mortgage should not be held to be absolutely and entirely void for usury, then, that the plaintiff may be relieved from paying thereon any more than the money actually loaned to him, as aforesaid, with lawful interest, and that, in such case, the said James Grant and John Cowan may be enjoined from proceeding to foreclose the said indenture of mortgage, by advertising for sale, as above set forth, or otherwise, and from continuing to advertise for sale said premises and real estate, and from proceeding, with any other advertisement, to advertise the said premises for sale, and from selling the said premises and real estate, or any part thereof, under said mortgage, or by virtue of any power of sale contained therein, and from any foreclosure of said mortgage, at law or equity, and from any prosecution on said bond and mortgage, or either of them, to collect the amount claimed to be due thereon, or any part thereof, until the further order of this court; and for such other and further relief, &c. [as in No. 1.]
PARKER & PALMER,
Attorneys for Plaintiff.
( No. 23.)
To restrain certain parties, defendants, from prosecuting
vexatious suits under an agreement rendered void in their hands from their failure and inability to comply with its provisions, and praying that the agreement be delivered up to be canceled ; several of the contracting parties, who should have been plaintiffs, refusing to join, are for that reason made defendants."
NEW-YORK SUPERIOR COURT.
Cyrus W. Field
agt. Darius B. Holbrook, - Holbrook, Peter
Cooper, Moses Taylor, Marshall 0. Roberts, and Chandler White.
Cyrus W. Field, plaintiff, complains and alleges :
First. That on the 24th day of March, 1854, he, together with Chandler White, acting on behalf of themselves and their associates, Peter Cooper, Moses Taylor, and Marshall 0. Roberts, entered into an agreement with
* A demurrer to this complaint was overruled by Justice HOFFMAN, at Special Term of the Superior Court, and this decision was reversed by the General Term, on appeal. (14 How., 103.) In the opinion of the General Term, Justice Duer, specifies the four following classes of cases, in which, alone, the jurisdiction of the Court to order a written instrument to be delivered up to be canceled, can be said to be established and undoubted:
First. Where the plaintiff alleges, that the instrument he prays may be surrendered or canceled, is void, upon grounds in which a Court of Equity alone can tal cognizance, in fewer words, when he sets up a purely equitable defence.
Second. When the instrument is a deed, or other document concerning real estate, which, although inoperative, if suffered to remain uncanceled, would throw a cloud upon the plaintiff's title to the
Ambrose Shea, as agent of Darius B. Holbrook, and of Holbrook & Co., a firm consisting of the said Darius B. Holbrook, and of Holbrook, as the plaintiff is informed and believes, of which agreement a copy is hereto annexed, marked A.1
Second. That the said Holbrook afterwards caused to be delivered to the plaintiff, and his associates, an account
lands which it embraces, or to which it refers. (See an example of such a case, ante, No. 21, and authorities cited in note.]
Third. When the instrument is negotiable in its character, as a bill of exchange, and the putting it into circulation by the holder would be a fraudulent act.
Fourth. When the plaintiff claims to have a defence, valid in law, but which rests upon evidence which he is in danger of losing if the adverse party is suffered to delay the prosecution of his claims. (See authorities cited in support of these propositions in the reported case, Field v. Holbrook and others, 14 How., 160.] · The following is a copy of the agreement :
St. Johns, March 24th, 1854. AMBROSE SHEA, Esq.,
Dear Sir: In compliance with the verbal understanding had with you, we stated that we have agreed with you, as agent of Messrs. Holbrook & Co., and D. B. Holbrook, to give them, respectively, stock at par in the New York, Newfoundland and London Telegraph Company, for the actual amount of money paid by them (and interest at 7 per cent.) for the Newfoundland Electric Telegraph Company, and actually received by that company, such stock to be given to them on their demanding it of us in New-York, at any time in the month of August next, and on their surrendering to us all the bonds and stock received by them from said Newfoundland Electric Company.
Your obedient servants,
On behalf of the Associates. I accept the above terms on account of Messrs. Holbrook & Co., and D. B. Holbrook.
(Signed,) A. SHEA, St. Johns, Newfoundland, March 31st, 1854.