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Latest revision as of 12:48, 30 June 2021
5. under the new agreement of giving day of payment, the negotiable note of $600: & the discount thereon; $400 a part thereof was paid, & $200 the balance thereof, renewed for 60 days, & discount paid, which he withdrew from bank and brought here, at the request of the complainant, who not only promised to pay it, but also a further sum, & to give a negotiable note in further payment as first above said. The complainant is very suddenly in funds, if he be ready to deposite the whole money in Court; this defendant should be happy to receive the money, but he can come under no terms, and will only receive unconditionally, he has no disposition to borrow money, but desires to collect his honest dues.14. It is insisted that this is an effort on the part of the Complt. to set off the superceded decree in the Court of Appeals, of more than uncertain result, against a certain demand; and further it is insisted, that whilst the case stands superceded, it is in the nature of a new trial to be had de novo before the appelate Court, and the presumption is exactly opposite to the allegation of the bill, or the writ of supercedeas would not have been granted. This defendant thinks he ahs much cause of complain, as plaintiff has violated his solemn promise and agreement, founded upon a valuable consideration, has gained time, saved sheriff's com's &c, and hence comes with unclean hands. And this defendant can hold no communion with him, other than to carry out his agreement with him as aforesaid, which he would not violate for the sum involved. 15. This defendant insists, that what he has received was rightfully received, and rightfully appropriated, he not only claims it, but insists that he is now entitled to receive the amount of the note already anticipated, as well as the balance of the judgement. And having answered the allegations of the bill, he prays your honor to refuse the injunction, and to refer him to the Court of Appeals, upon your refusal, that they may consider it, if need be, in connection with the case now before them, where doubtless right will be done, it being a matter as he is advised beyond the reach of this Hon. Court. And he prays that you award him his costs in this behalf expended &c and as in duty &c Ballard May Term 1849