moneys, wares, merchandizes and other things so lent, bargained, exchanged or shifted, the one moiety of all which forfeitures to be to the state, and the other moiety to him or them that will sue for the same by action of debt in any court of record within this state.

1. Defendant owed plaintiff a certain sum of money, but on the day of payment not having the money, he agreed with plaintiff to give him more than six per cent. for indulgence; a bond was given for thẹ principal sum, and the amount above the legal interest was paid partly in money and partly by a note. An action being brought on the bond, it was held, that the transaction was usurious and the bond void. The act against usury cannot be evaded by taking two securities, one for principal and another for the unlawful premium. Glisson v. Newton's Ex., 1 Hay, 336.

2. Where A had judgment and execution against B, and on the day of sale consented to indulge B in consideration of a sum more than legal interest for the time of indulgence, and this sum was paid: Held, that this was usurious, and A was liable to an action for the penalty under the statute against usury. Curtis v. Brund, Conf. R. 28.

3. A, residing in North Carolina, contracted in New York a debt with B, who lived in that place; afterwards, A paid to the agent of B in North Carolina a part of the debt, and credit having been given him for four months for the balance, interest at the New York rate (seven per cent.) was calculated on the balance for four months and added thereto, and for that sum A gave his bond. Held, that this bond was not contrary to the laws of North Carolina. McQueen v. Burns, 1 Hawks, 476.

4. A, being embarrassed, and having a promissory note, payable to himself, endorsed and delivered it to H, his clerk, with instructions to raise money on it by a sale of it to the plaintiff, and at the same time directed the clerk to conceal from the plaintiff that the note was his, A's, property. The clerk sold it to the plaintiff at a discount of thirty-three and one-third per cent., and represented it as his own property, and endorsed the paper to the plaintiff without recourse to himself in the event of the failure of the others who were liable on it. In a suit by the plaintiff against A, it was held, that the transaction was usurious. Ruffin v. Armstrong, 2 Hawks, 411. Because plaintiff made title through the usury-but aliter against the makers.

5. A, being in want of money, applied to B, and it was agreed between them that A should receive from B the note of one L, which he held, and give therefor to B a bond payable to S for the sum due

on L's note, with fifteen per cent. A gave his bond accordingly to S, by whom it was endorsed to the brother of B, in whose name a suit was brought and judgment recovered, and the money was collected by an execution against A. Held, that A was guilty of usury; and that it is no defence for a lender of money on usury, in an action qui tam, to say that he acted as another's agent, unless he disclose the agency at the time of contracting. Whether being particeps criminis, such disclosure at the time would avail him. Qui tam, Wilkes v. Coffie, 3 Hawks, 28. See Duvall v. Vannoy, 3 Dev. 43.

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Iredell.

6. Wherever the debtor, by the terms of the contract, can avoid the payment of a larger, by the payment of a smaller sum at an earlier day, the contract is not usurious, but conditional, and the larger sum becomes the penalty. Where the holder of a bond, for the payment of a certain sum, promised to surrender the bond upon the payment of a less sum at an earlier day; to take advantage of such promise, there must be a strict compliance on the part of the obligor. To constitute usury, the obligation to pay more than the legal rate of interest, must be absolute on the face of the transaction, (í. e., not conditional or upon a contingency.) A contract good in its creation, is not avoided by a subsequent usurious consideration; but such subsequent taint will affect the after holder as against the endorser. Moore v. Hilton, 1 Dev. Eq.

429.

7. Although it may be usury in an individual to take interest in advance upon a loan, it is not so in a bank discounting a negotiable security, even if payable directly to the bank, because such a course is sanctioned by legislative and judicial determinations, and by the gen-. eral understanding of the community. State Bank v. Hunter, 1 Dev. 100.

8. Deducting interest by a bank for the days of grace upon dis* counting a bond (which it seems is discountable in N. C.) is not usurious, although the obligor is not entitled to the days of grace, the parties supposing that, on such an instrument, he was entitled. Ibid.

9. Debt on bond, and the case was this:-N executed a bond upon a bona fide consideration to M, who afterwards sold the same to Collier, at a greater discount than six per ccnt. per annum, and by his endorsement bound himself for the full amount of the bond. Collier sued N, and the plea usury. Held, that the plaintiff may recover the full amount of the obligor, notwithstanding he claims through an usurious endorsement.

10. A mistake in the construction of the statute of usury, if it results in taking more than legal interest, will render the contract usurious.

But an error in fact, by which more than the legal rate of interest is reserved, will not vitiate.

11. If a security be usurious in its creation, it is void in the hands of an innocent holder. But if valid in its inception, a subsequent usurious agreement does not avoid it.

12. The object of the statute of usury is to protect the borrower, not to enable a lawful debtor to avoid the payment of a lawful debt; and hence the latter cannot aver an usurious assignment, so as to defeat the assignee.

13. A distinction exists between the usurious discount of accommodation notes and notes which are perfect, and on which an action can be maintained. In the first case, the discount is a loan to the maker, and the note is void under the statute. In the second, it is the purchase of an existing valid security, and the endorsee may recover on it. Collier v. Neville, 3 Dev. 30.

14. A sheriff, who had collected money upon an execution, and had neglected to pay it to the plaintiff, and was thereby subject to Idamages at the rate of twelve per cent. per annum, having lent the money thus collected to a third person, at the same rate of interest, was held guilty of usury, and liable to the penalty of the act of 1741.

15. A pure contract of indemnity against a doubtful claim is not within the statute against usury, but an agreement whereby the borrower agrees to pay the lender the same rate of interest which the latter is bound to pay a third person, and which exceeds the legal rate, is not a contract of indemnity within the meaning of the rule, and this whether the obligation of the lender be created by law or by stipulation. Dowell v. Vannoy, 3 Dev. 43.

16. It seems that an agent, who lends money at an usurious rate of interest, is liable to the penalty, notwithstanding he discloses his character. Ibid.

17. Where A contracted for land, and placed one-third of the purchase money in the hands of B, who completed the purchase and then leased the land to A, at the rate of twelve and a half per cent. upon the sum advanced by him, and gave a bond to A to convey to him at the expiration of the term, upon the payment of the advance and rent; and A was embarrassed, and made permanent improvements; it was held, that the arrangement was a mortgage to secure a usurious loan. Thorp v. Ruks, 1 Dev. & Bat. Eq. 613.

18. In an action to recover the penalty given by the statute against usury, it is not necessary to show that the principal money had been paid. The offence is complete when any thing is secured for the for

bearance over and above the rate of six per cent. per year. Seawell v. Schomburger, 2 Murphy, 200.

19. Where an usurious agreement is made in this state, but the illegal interest is secured in South Carolina, an action will not lie for the penalty. Graham v. Lewin, N. C. Term R. 189.

20. Action of debt on the statute of usury: Pleas, general issue and statute of limitations: motion by plaintiff to amend the pleadings by replying to the statute of limitations," a former suit between the same parties, and a nonsuit therein; and that this action was brought within a year and a day thereafter." Motion disallowed, for, 1st, the amendment, if allowed, would be unavailing. The statute limiting penal actions contains no such saving as the plaintiff wishes to reply, nor a saving of any description. 2d. The nature of this action forbids the amendment. This was no man's particular cause of action until brought. It became his by the suit, and he lost it by the dismission. It then became common, and liable to be brought by any person. If brought by a stranger, it was a new suit; so if brought by the same person. It was not a continuance of his old suit, for it was his no longer than it depended. Clark v. Rutherford, 3 Murphy, 237.

21. In debt qui tam under the statute of usury, the plaintiff may recover less than he declares for, and the verdict shall be good. Dozier v. Bray, 2 Hawks, 57.

22. The payment of the usurious interest to the sheriff on an execution, or to an assignee, and much more to an agent, completes the offence. Dowell v. Vannoy, 3 Dev. 43.

23. In debt for usury, the declaration stated a loan to A, but the proof was of a loan negotiated by A, as the avowed agent of B. Held, that the proof did not support the declaration; for the loan proved was, in fact and in law, a loan to B. Jones v. Cannady, 4 Dev. 86. 24. In questions of usury the real transaction may always be shown, as well to support as to avoid the security. Ibid.

25. A return by a sheriff of satisfaction to an execution issued on a judgment for a debt infected with usury, is not sufficient evidence of the receipt of the usurious interest, to charge the lender in an action for the penalty. Wright v. McGibbony, 2 Dev. & Bat. 474.

26. It must be shown that the lender has actually received the usurious interest. Ibid.

27. Complainant having neglected to plead usury to an action at law upon his contract, and having in his bill shown to the court no reason for his neglect, a demurrer to a bill of injunction, founded on the usury, was sustained, and the bill dismissed. The bill was also

defective, because it did not waive the penalty. Branton v. Dickson, 1 Murphy, 225.

28. The general ground upon which equity proceeds in cases of usury, is to compel a discovery, upon the complainant's bringing into court the principal sum advanced with legal interest, and then the court will relieve against the usurious excess. Taylor v. Smith, 2 Hawks, 465.

29. In a bill for the discovery of an usurious contract it is not necessary to waive the penalty, where the usurious interest has not been paid. In such case the rule of practice requires the tender of the sum due, or bringing it into court. But where there is an independent 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 practice. Ibid.

30. A court of equity is bound by the statute of usury, and although upon the bill of the borrower, aid will be extended upon the terms of his repaying the sum, but with lawful interest, yet the lender can have no relief whatever, and his bill to foreclose an usurious mortgage will be dismissed. McBrayer v. Roberts, 2 Dev. Eq. 75.

31. A court of equity never assists a creditor who has been guilty of usury; and when, according to the bill, usurious interest was incorporated in a note by the fraudulent contrivance of the debtor, for the purpose of taking advantage of it and avoiding the debt, relief was refused. State Bank v. Knox, 1 Dev. & Bat. Eq. 50. '

32. A contract tainted with usury is denounced by the law of the land as corrupt and utterly void, and every court must treat it as holding the character which the legislature has stamped upon it. It is regarded as an oppression practised upon the borrower. A court of equity, therefore, cannot be invoked to aid such a contract, in whole or in part, or to redress the oppressor, because the meditated injury has, by the artifice of the intended victim, been made to recoil upon himself. Oppression cannot demand help against fraud. The court is not at liberty to array its imagined wisdom against the legislative will, or to defeat public policy by a recourse to the code of honor and morality. Per Gaston, in the above case.