Thatcher v. Gammon
Massachusetts Supreme Judicial Court
*In this action, the plaintiffs, as executors of the last [*268] will of Peter Thatcher, deceased, demanded possession of sundry tracts of land, which the defendant had mortgaged to the said Peter, by deed dated the first day of August, in the year 1809, as collateral security for the payment of the defendant’s promissory note to the said Peter, of the same dale, for the sum of $ 1200. The defendant pleaded in bar, that more than six per cent, per annum was taken, secured,…
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*In this action, the plaintiffs, as executors of the last [*268] will of Peter Thatcher, deceased, demanded possession of sundry tracts of land, which the defendant had mortgaged to the said Peter, by deed dated the first day of August, in the year 1809, as collateral security for the payment of the defendant’s promissory note to the said Peter, of the same dale, for the sum of $ 1200. The defendant pleaded in bar, that more than six per cent, per annum was taken, secured, and reserved in the said mortgage deed. The plaintiffs traversed the said allegation ; and, issue being joined thereon,…
1Opinion of the Court
The action was continued nisi for advisement, and at the succeed ing term, in Berkshire, a new trial was ordered.
Parker, C. J.
Upon consideration, we are satisfied that the direction, given by the judge to the jury in the trial of this action, was wrong ; and that the judgment, although suffered by default, precluded the party, against whom it was rendered, from impeaching it for any cause of which he might have availed himself upon a trial.
The general principle is certainly clear, that, upon a scire facias, or in an action of debt upon judgment, no defence can be admitted *235which existed prior…
2Cases cited1 opinion
- Flint v. SheldonMassachusetts Supreme Judicial Court · 1816
3Cited by13 opinions
- Savage v. EvermanSupreme Court of Pennsylvania · 1872
- Radclyffe v. BartonMassachusetts Supreme Judicial Court · 1894
- Lovejoy v. WebberMassachusetts Supreme Judicial Court · 1813
- Wardell v. EdenNew York Supreme Court · 1801
- Charles v. Davis, Ex'r.Supreme Court of New Hampshire · 1882
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