IN EQUITY.

#### Taylor et al. v. Smith.

From Granville.

¡lie general ground on which this Court proceeds, in «asee of ui.u¡y, is to compel a discovery, upon the Complainant’s bringing' into Court the principal money advanced, with the legal interest, and then the Court will relieve against the usurious excess,

in a bill for discovery of an usurious contract. It is not necessary to waive the penalty.

\nd in such cases, tile rule cf practise reguiies a tender cf the suia due, or bringing into Court. But where there is an in.dapende'.n: ground insisted on in the bill, as going to avoid the whole transaction, (though not entitled to that effect,) it affords a justification to the Court in relaxing this strict rule of practise.

The bill stated, that in the yean 1820, one John Evans, being- much in want of money, applied to the Defendant; Smith, for his assistance in raising the smn of two ihoa» sand dollars, and it was agreed between Evans and Smith, that the latter would advance the sum at a discount of twenty-five per cent, provided Evans would make to him a bond with the Complainants as sureties thereto: that a bond was accordingly executed for i:i>. sum of two thousand five hundred dollars, and offered by Evans to Smith ,• Smith declined advancing the money apon the bond, alleging that the contract would be usurious, but told Evans, that if he would bring him a note for the same sum made by the Complainants, payable to Evans, and by him assigned to the Defendant, he would, advance the money at the rate of twenty-five per cent., discount, and that by this proceeding- the statute against usury might be evaded: that shortly after, the Com ■ plain ants, at the request of Evans, and without any consideration, but solely for the purpose of enabling him to raise the money by a transfer to Smith at a discount of iwenty-five per cent, executed a note payable to Evans, *466twelve months after date, for 02500 : that when the note was presented to Smith by Evans, the former, perceiving the great anxiety of Evans to raise money, compelled j,jm congent to a deduction of thirty-three and one» third per cent, from the amount of the note, and on these terms Evans indorsed the paper to Smith. The hill proceeded to state, that very soon after this transaction, Evans became insolvent, and Smith commenced a suit on the note against the Complainants, in Granville County Court, to which they entered appearance and pleas, and in support of their pleas had summoned Evans, the only person acquainted with the transaction, and made arrangement to procure his testimony: that to defeat this, Smith dismissed the suit against the Complainants, and upon a judgment obtained against Evans by another person, procured a capias ad satisfaciendum to be executed on Evans at the very moment commissioners were taking his deposition to be used in the suit brought by Smith against the Complainants ; and that on this ca. sa. he had him imprisoned until he could issue on the note a writ against these Complainants and Evans jointly : that such a writ had issued and was executed and returned to Court, and was then pending; to this latter suit the Complainants had pleaded, that the note was founded on an usurious transaction, but they had no means of proving it, save by the testimony of Evans, who was made a party : that one of the Complainants had asked Smith if he would receive the money advanced by him, with legal interest thereon, with an intention of paying that amount, but Smith positively refused to receive it, and Complainants, it was stated, were still ready to pay the same, if it were required by the Court. The bill prayed a discovery and relief, and in the mean time an injunction against the suit at Law'.

To this bill Defendant demurred, shewing for cause of demurrer, that the Complainants did not in their bill waive or release the forfeiture that this Defendant might incur by making the discovery sought for; and further, *467that the Complainants ought to shew that they have brought into Court the principal money, with th lawful interest thereon, which they admit to be due. ,

J The Court below dissolved the injunction, and sus-joined the demurrer, whereupon Complainants appealed.

Gaston for Complainants. Ruffin for Defendant.

For Complainants it was contended, that no penalty , was incurred by making an usurious contract, but only by receiving money on such a contract — (.Set of L741, JV‘, M. 139.)

As to the payment of the money into Court, there was no authority to be shewn, requiring it, and it had been tendered, and Complainant was yet willing to pay.

Ruffin, contra,

admitted, that no penalty was incurred before payment of the money, but insisted that a forfeiture would be, for Defendant’s answer would be evidence against him at Law.

If Smith should be compelled to make a disclosure, and should disclose usury, a Court of Equity would he hound to obey the law prohibiting usury j if it wished, it could not avoid it, and therefore the rule is, that the money must be brought into Court. And as to the tender, the injunction was prayed and granted for the whole debt, and this shewed that Complainant meant, if he could, to avoid payment of the whole.

Taylor, Chief-Justice.

The bill sets forth an usurious transaction, attended with circumstances of hardship and oppression, and is exhibited for the benefit of *he securities of an insolvent person. There are two grounds of demurrer, one is, that the Defendant is not so bound to discover matter which might subject him to a penalty or forfeiture; the other is, that the Complainants ought to have brought into Court the principal and interest actnallv received bv Evans. The general *468ground on which this Court proceeds in cases of usury, *s comPc* a discovery, upon the Complainants’ bringing into Court the principal money advanced, with the ]ega] interest, and then the Court will aid as against the usurious excess. By this precaution the Defendant is,. protected against any forfeiture, and is restored to all* the money which he can equitably claim. It was not necessary to waive the penalty, in the bill, since none is^ incurred before the receipt of usurious interest.

In a bill for discovery of an usurious contract, the-rule of practise requires a tender of the sum due, or bringing it into Court, upon the principle that he who seeks equity must do equity. Besides the charge of usury, in this bill, there is an independent ground insisted on by the securities, as going to avoid the whole transaction, as against them ; but though I do not think it is entitled to that effect, it affords a justification to the Court in relaxing the strict rule of practise as to the payment of the money into Court, and accordingly this order must be made, that if the principal sum received by Evans, together with the interest, is paid to the Clerk of this Court on or before the - — - day of September next, then the demurrer is to be overruled, and the Defendant is directed to answer, otherwise the bill to stand dismissed with costs.

Hat.Ii and Hesbersobt, Judges, concurred.