The judgment is in exact accordance with the legal rights of the parties. The court refused to enforce the illegal agreement, and it also declined to permit its perversion to a use, injurious to the plaintiff and beneficial to *Page 355 the defendants, but to which the latter were not entitled, either in conscience or in law.
The infected contract did not absolve the mortgagor from his antecedent obligations, nor did it impair the rights of the plaintiff under a prior and valid agreement. It is true that the usurer is not permitted, at his own election, to allege his illegal act, as a ground for re-instating an old security; but it is equally true that a party, who claims to be the victim of exaction, cannot avail himself of the invalidity of a later contract, as a shield from liability on one of earlier date, which was honest and free from vice. (Brown v. Dewey, 1 Sandf. Ch. 57; Swartwout v. Payne, 19 Johns. 294;Billington v. Wagner, 33 N.Y. 31; La Farge v. Herter, 5 Seld. 241; Crane v. Hubbell, 7 Paige, 413.)
It appeared on the trial, that the paper in question was discounted for the sole purpose of renewing a note previously due and dishonored, and of which the payment was secured by the mortgage set forth in the complaint. To meet the case in this new phase, the judge submitted to the jury such additional issues, as were essential to bring to the view of the court, all the facts material to a just and intelligent decision. To this we see no well founded objection. He was invested with the same power at the circuit, which he exercised at Special Term, in framing the original issues. It was a question addressed to his sound discretion. We think he was clearly right in the disposition which he made of it; but, if we entertained a different opinion, we should not be at liberty to reverse the judgment on a question of mere practice, in respect to which the court below is the ultimate arbiter.
The order of the court, conforming the pleadings to the proof and the findings, was made in the exercise of a like discretion. It involved no change in the form of the action, or in the nature and substance of the claim. The defendants were not taken by surprise, and they suffered no legal prejudice from the amendment.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed. *Page 356