Fliming v. Bates , 1 Root 129 ( 1789 )

By the Court.

The statute made to prevent the talcing of unlawful interest, provides two remedies for the mischief; and the defendant has Ms election, either to charge the usury •directly and avoid the security wholly, or to file his complaint •on the second day of the court’s sitting and thereby lay a foundation for the court to proceed to search out the truth, by Hie oatli of flic parties, or in any other way proper for a Court of Chancery: And if the plaintiff shall refuse to he examined upon oath, he shall be nonsuited; and if upon such inquiry said obligation is found to be usurious, the whole of the interest shall be expunged and judgment be given for the principal pian due on the note only. But the defendant cannot avaiL himself of both remedies.

The complaint must be filed on the second day of the court, to which the suit is brought and not after. The granting of the new trial for the purpose of filing his complaint was perfectly idle; and allowing him to file it at the time and in the manner it was done, is directly against the statute; and then admitting the defendant a witness to substantiate bis own defense is contrary to the rules of proceeding in chancery — would endanger all written securities— and tend to defeat the guards provided by law against frauds and perjuries.

Tide judgment was affirmed in the Supreme Court of Errors.