Rogers v. Rathbun — 1 Johns. Ch. 367

Majority

p. 367

Rogers against Rathbun.

March 7th.

Headnote

On a bill for discovery, on a charge of usury, an injunction will not be granted to stay proceedings at law on the note, or usurious contract, unless the plaintiff tenders, or brings into court, the money actually lent, and the lawful interest thereon.

BILL for an injunction, charging that the plaintiff applied to the defendant, on the 16th of March, 1812, for the loan of 500 dollars, and agreed to give him at the rate of . 11 per cent, interest, and to execute a negotiable note, with Beriah Palmer, as endorser, payable in six months. That the agreement was carried into effect, and, on giving the note, the plaintiff paid to the defendant interest, at the rate of 11 per cent, per annum ; that the defendant has commenced a suit on the note in the supreme court.

The bill called on the defendant to answer to the above charge, and prayed for an injunction and subpcena, and for general relief; and expressly waived all forfeitures to which the defendant might be liable by reason of the premises.

The bill prays for a discovery of the usury charged, and, consequently, to subject the defend

p. 368

ant to a forfeiture at law of his whole debt; and as the till does not contain an offer, or tender, of the sum actually borrowed, with the lawful interest, after crediting the eleven per cent, already advanced, the motion cannot be granted. jj. jg a principle, that he who seeks equity, must do equity; and if the borrower comes into this court for relief against his usurious contract, he must do what is right, as between the parties, by bringing into court the money actually advanced, with the legal interest, and then the court will lend him its aid as against the usurious excess. To compel a discovery, without such offer, would be against the fundamental doctrine of this court, which will not force a discovery that is to lead to a forfeiture. (Bosanquet v. Dashwood, Cases temp. Talbot, 38. Fitzroy v. Gwillim, 1 Term Rep. 153. Viner, tit. Usury, 315. Chauncey v. Taheurden, 2 Atk. 393. Earl of Suffolk v. Green, 1 Atk. 450.)

Injunction denied.