Branton v. . Dixon , 5 N.C. 225 ( 1809 )

From Fayetteville District. The bill set forth no reason why complainant did not (226) set up the usurious contract upon the trial at law, nor did complainant, in his bill, waive the penalty given by the act of 1741, ch. 11, for the offense of usury.

The defendant demurred as to so much of the bill as charged him with usury, and answered as to the residue; and for cause of demurrer the defendant showed that complainant ought to have pleaded the usurious contract (if any) to the action of law. The bill, answer and demurrer were sent to this Court for the opinion of the Judges. The bill sets forth that an usurious contract had been entered into between complainant and defendant, on which defendant brought an action at law, and obtained judgment. If the contract were really usurious, and the complainant wished to avail himself of the statute against usury, he ought to have pleaded it to the action at law, or offered to this Court sufficient reasons for not pleading it. Upon this ground, therefore, the demurrer ought to be sustained. But if the complainant had in other respects made out such a case as would entitle him to relief in equity, he has omitted to waive the penalty which the act of 1741, ch. 11, imposed upon defendant, in case the contract should be found to be usurious. Let the demurrer be sustained, and the bill be dismissed with costs.

Cited: Oldham v. Bank, 85 N.C. 247.

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