James Moore Wayne

“ The lender, upon making the discovery, is to receive his principal, without any interest; and is to pay costs: This advantage given to the borrower, must be viewed by a court of equity in the nature of a penalty, upon the same principle that other forfeitures, imposed by statutes against usury, are viewed as penalties, which equity will not assist to enforce at all, much less by any evidence aliunde. If the lender denies the usury charged upon his oath, the oath should decide the question before the chancellor. ”

“ 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. It is our opinion then that whenever a party seeking a discovery had knowledge of the facts during the pendency of a suit at law, equity will not permit him to do so afterwards to enjoin a judgment.
The bill will be ordered to be dismissed, and the injunction is dissolved. ”

“ The fact of the legislature having released the lender from all other penalties in the act, except the loss of interest, can make nothing against the construction of the statute: for that is only the consequence of the inability of every legislature in this country to compel a person to make a discovery, by which he may be subjected to legal pains, penalties or forfeitures. ”

“ But the section under review should have a strict construction as to the relief intended to be given by it to a borrower; because it is not a law in furtherance of strict justice between the borrower and lender. The former has by it, upon the discovery of the usury by the lander, the use of the money without paying the interest fixed by the law as a fair compensation for the loan of money. Strict justice requires from the party claiming to be released by equity, that he should do equity: and in cases of usury, relief has heretofore only been given upon the payment of principal and interest. ”

“ There must be a clear case of accident, surprise or fraud, before equity will interfere. In the case of Prothew v. Forman, 2 Swanst. 227, the lord chancellor says: 'if a defendant has a good legal defence, but the matter has not been tried at law; it becomes a serious question whether a party who being competent does not choose to defend himself at law, can come into equity and change the jurisdiction. ”

“ The bill concludes with a prayer, 'that the defendant may, upon her corporal oath, true and perfact answers make to the several allegations of the bill and the matters therein charged, as if the same were again repeated, and she were interrogated thereto; that the complainants might have an injunction from the court, restraining the defendant from proceeding further upon the judgment, and from executing the same in any manner ”

“ The points decided in that case, and that particularly which has been under our consideration, in this; have been questioned by judges of the same court; but the case has never been overruled. In our opinion, from an examination of all the cases since in the court of appeals, down to the case of Fitzhugh v. Gordon, 2 Leigh 626; the reasoning of the first is not shaken. ”