Waters, 17 Johns. 76. S. C. in Error, 8 Cowen, 669. Also 18 Johns. 167. 20 Johns. 287. 16 Mass. 118.

But it must be admitted that the Courts of New York and Massachusetts have not always recognized this exception. 14 Johns. 270. 10 Mass. 502. 4 Mass. 156. See 2 Phillips' Ev. (Cowen and Hill's edition) 71-81. 3 Pick. 184. 6 Peters, 51. 6 Mass. 449. 7 Mass. 199. 17 Mass. 122. 5 Cowen, 23. 5 Cowen, 153. 4 Harris & Johns. 283.

But in an action by the plaintiff against the payee of a note, which was endorsed for the accommodation of the maker by the payee, the maker, being released by the defendant, was held to be a competent witness to prove the usury. Van Scaick v. Stafford, 12 Pick. 565. The arguments in favor of the rule are stated in the last mentioned case by Parsons, C. J.

In the recent case of Chandler v. Morton, 5 Greenl. 374, in the Supreme Court of Maine, it was adjudged that the rule, that a party to a negotiable note shall not be admitted to prove it usurious, extends to the maker of an accommodation note, and is applied even where the note had heen delivered up to the creditor for the amount; and that its application is not restricted to the case of an innocent endorsee; but is admitted where the usurer himself is a party. See Dane's Abridg. 345 et seq.

In the case of Hunt v. Edwards, 4 Harris & Johns, 283, in the Court of Appeals in Maryland, it was held that the maker of a note is a competent witness in an action on it by the holder against the payee, to prove that the note was given on an usurious consideration.

In the case of Griffith v. Reford, 1 Rawle, 196, in the Supreme Court of Pennsylvania, it was determined, that in an action against the endorser of a promissory note, the maker, to whom the defendant had executed a release, is not incompetent as a witness for the defendant on the ground of interest, though he has given him a judgment and mortgage to secure him against the endorsement. But that he is incompetent (on the ground that a witness cannot impeach a writing he has given) to prove that the consideration of the note was usurious; that the endorser was in fact the lender, and that the security was put into a negotiable form merely for the sake of convenience. Huston and Todd, J., dissenting. It has been decided in the same state, that on the tri of a scire facias upon a judgment, evidence is not admissible on the part of the defendant to show that the bond upon which the original judgment was entered by warrant of attorney was usurious in its foundation. Lyle v. Williams, 15 Serg. & Raule, 135. It is to be

recollected, however, that usury does not in that state render a security null and void, in toto, as it does in some others. But in England, where it does vacate a contract, it is not pleadable to a scire facias. Bush v. Gowen, 2 Strang, 1043. Cook v. Jones, Coup. 727.

It has been ruled in the state of Verinont, that it is incorrect to exclude from the jury evidence of the taking even a trifling sum above legal interest, when the defence is usury. Whether taken corruptly, or by mistake, should be left to the jury. Bank of Burlington v. Durkee, 1 Verm. 399.

The testimony of a general practice of taking interest at banks, according to printed tables, not exactly correct, and that such practice. has existed a long time without being resisted, is proper; and may be conclusive to show that the extra interest was not taken corruptly.. Ibid. And that the receiving of interest, according to the uniform custom of banks, though it exceed six per cent, by a few cents, is not usury, so as to defeat the security; but that the excess should be deducted in assessing the sum due. Bank of St. Albans v. Scott, 1 Verm. 426.

SECTION IV.

Of relief in equity.

The general rule is, that after a verdict at law a party comes too late with a bill of discovery. There must be a clear case of accident, surprise or fraud, before equity will interfere. Such now is the established doctrine in England, and has been for a long time in the United States. And the doctrine, as applied to a case of relief from usury, is, that a defendant sued at law on a contract alleged to be usurious, will not be entitled to a bill of discovery if he suffers a verdict and judgment to be taken against him, and especially when he does so without making a defence at law. The reason of the rule is, that the proof of usury is a good defence at law; and when it is in the knowledge of the defendant, no satisfactory reason can be given why the discovery was not sought while the suit was pending.

Whenever a party seeking a discovery had knowledge of the facts during the pendency of the suit at law, equity will not permit him to do so afterwards, to enjoin a judgment. Brown v. Swann, 10 Peters, 497.

An injunction will not be granted against a judgment at law on a charge of usury, where a party seeks a discovery of the usury and

a return of the excess beyond the legal interest, for the usury would have been a good defence at law, and no reason was given why the defendant did not seek the discovery while the suit at law, was pending. Lansing v. Eddy, 1 J. C. R. 49. 3 J. C. R. 395. S. C. 17 Johns. R. 436.

Where the plaintiff was sued at law upon notes alleged by him to be usurious, and suffered a verdict and judgment to be taken against him, without making any defence, or applying to chancery for a bill of discovery: Held, that he was concluded, and not entitled to relief in this court. Thompson v. Berry, 3 J. R. C. 395. See also, 1 Paige, 544.

Where a party comes to chancery to avoid a usurious contract, he must consent to pay the sum actually loaned with interest, or the court will not grant him any relief. Fulton Bank v. Beach, 1 Paige, 429.

And where the proofs in a cause are regularly closed, the court will not open them to enable the defendant to re-examine a witness in order to establish the usury, unless he agrees to pay the sum actually due. Ibid.

So the court will not allow an answer to be amended for the purpose of setting up the defence of usury, unless the defendant consents. to pay the amount actually due. Idem.

If the security upon which a suit is instituted is a mortgage or other specialty, the defendant cannot avail himself of a defence of usury under a general answer denying the complainant's right, as claimed by the bill. But the defence of usury must be distinctly set up in the plea or answer of the defendant; and the terms of the usurious contract must be distinctly and correctly set out. The proof must also correspond with the allegation in the plea or answer.

The owner of the premises against which an usurious mortgage is attempted to be enforced, in the court of chancery must himself set up the defence of usury in his answer. He cannot avail himself of a defence set up in the answer of a co-defendant from whom he purchased, who has no interest in or lien upon the mortgaged premises, and who is not a necessary party to the suit. Vroom v. Ditmas, 4 Paige, 526.

Previous to the adoption of the Revised Statutes, the principles upon which a party to a usurious contract could in a court of equity, compel of, and obtain relief against the usurious premium, were perfectly well settled. Neither discovery nor relief could in any case be obtained in the court of chancery without a repayment of the sum ac

tually lent with lawful interest; because the borrower could not in any case, or under any circumstances, be equitably entitled to keep the mo-. ney which he had actually received from the lender, and for which the lender had received no consideration. He was, therefore, met by that cardinal maxim of a court of equity, "that he who asks for equity must do equity," and could obtain no aid from that jurisdiction in getting rid of, or recovering back the amount which had been improperly exacted from him, until he repaid the amount, which in justice and equity was due from him to the defendant. Relief, under such circumstances, when the complainant did not ask for or need a. discovery, was refused exclusively upon this principle; but where he had no legal evidence of the usury, and the object of his bill was to compel the defendant to disclose or admit the fact, he had an additional difficulty to encounter, to wit: that a court of equity will not compel a defendant to answer upon oath, and thus become a witness for his adversary and against himself, where such answer may subject him to a criminal proceeding, or to a penalty or forfeiture, or to any loss in the nature of a forfeiture. In such a case, therefore, he was bound to waive the forfeiture, and pay the amount actually loaned, not only because it was just and equitable, but in order to guard against the possibility of the defendant's answer being made the means of subjecting him to a forfeiture.

The statute for the prevention of usury, 1 R. L. 64, did not prescribe the terms upon which relief should be given, or discovery compelled in a court of equity. Before the revision (of 1830), the law then stood thus: Every usurious contract, and every instrument, of whatever kind or description, taken as the evidence of such contract, were absolutely void, and when sued upon such contract, all the borrower had to do, was to prove the usury, and no recovery could be had against him; he defeated the recovery, not only for the usurious excess, but of the sum actually loaned. If he had legal and sufficient evidence of the usury, his defence was perfect at law, and he had no occasion to invoke the aid of a court of equity. If the knowledge of the usury was confined to himself and the lender, then it became necessary for him to go into a court of equity, and by a bill of discovery to call upon the lender to admit or deny the usury. He was then, for the reasons which have already been stated, bound to waive the forfeiture, by paying or offering to pay the sum actually loaned with interest. And in some cases, where the form of the security was such as to enable the lender to collect it either without a suit at law, or in equity, (as a bond and warrant of attorney, or a

mortgage), the borrower, although he had competent evidence of the usury, still, as he had no opportunity, from the form of the proceeding, to avail himself of it at law, was compelled to file his bill and ask relief in equity. In such a case, although he sought and required no discovery, a court of equity would not relieve him from the usurious excess, except upon the equitable condition of his repaying the sum actually loaned.

The eighth section of the existing act (1830) contains two distinct and independent provisions-the one prescribing the terms upon which a discovery may be compelled in a court of chancery, in a case of usury; the other relating to the terms or conditions upon which relief may be granted in similar cases.

The first branch of the section provides, whenever any borrower of any money &c. shall file a bill in chancery for the discovery of the money &c. taken or received, it shall not be necessary for him to pay or offer to pay any interest whatever on the sum or thing loaned. The question which we have now to determine is, whether he must offer to pay the principal. It will be recollected, as the law then stood he was bound to pay, or offer to pay, both principal and interest. This was not required by any express statutory provision, but according to the established principles upon which this branch of its jurisdiction was administered, the court of chancery exacted it as a condition precedent to the compelling of the defendant to answer and make discovery. A bill which did not make such offer was bad upon its face, and might be demurred to. The first observation, then, which occurs is this: That the original power and authority of the court of chancery to impose these, or any other terms as the condition of compelling discovery, were not conferred by any statutory enactments. Such authority belonged to the court by virtue of its general equity jurisdiction. The inquiry then is not what authority does this section confer upon the court of chancery, but to what extent does it circumscribe and limit the jurisdiction which that court confessedly previously possessed, and was in the constant habit of exercising. It is like the passing of a law, inconsistent with some of the provisions of a pre-existing statute. The last act is an implied repeal of the first, so far as these provisions are incompatible with each other, but leaving the original law in full force and effect in all other respects. When the legislature, therefore, with a full knowledge that by the then existing law a borrower could not compel discovery of the usury without offering to pay the sum actually lent with interest, declared that for the future it should not be necessary