Stewart McRaven et al. Appellants, v. W. T. Forbes, 6 Howard 569

Per Curiam. There are two grounds taken in argument for reversing the decree. First — that the bill contains no matter of equitable jurisdiction; and second — that the bill was defective, inasmuch as it contains no offer to pay what is actually due. It is a question which cannot admit of a doubt, that the defence of usury is one which is full and complete at law. This is apparent from the nature of the defence, and it is. also well settled by authority. 10 Pet. 497.

On a former argument of this case, I was inclined to think that as by the original bill equity had taken jurisdiction of the cause for one purpose, it might exercise it for all purposes; but on further reflection, I am not satisfied with this conclusion. Where equity has obtained, or can rightfully exercise jurisdiction for one purpose,'it will not "turn a party out to pursue his remedy at law, on a feature of the case which would be cognizable'at law, if it can do justice between the parties. But this rule does not apply here.

In this case the appellants had a .legal remedy on the note, and they were not restrained in the exercise of this remedy. The injunction to stay the sale had no such effeet. They were left free to pursue that remedy. Equity had not assumed to take jurisdiction, further than to stay the sale, the bill having been filed for that purpose. The appellants being at liberty to pursue their legal remedy, the appellees were bound to meet them in a court of law. The rule which I have mentioned can only operate as to the remedies of the complainant.

The defence was at law, and the appellees had submitted to the jurisdiction of the court of law. They acquiesced in that jurisdiction, without any attempt to arrest the proceedings. No reason whatever is assigned for not having made the defence at law. The judgment was suffered to go without objection. Under such circumstances, a court of chancery can give no relief. The parties have lost their remedy by their own neglect. On the other ground taken, it is insisted for the appellees that a party is not held to make an offer to pay what is due, unless where a. forfeiture is the consequence.

It seems to me, however, to be founded on the general rule, that he who seeks equity must do equity. The case of Rathbun v. Rogers, 1 J. C. R. 367, was an application for a discovery of usury, and the injunction was refused on the ground that there was no offer to pay what was actually borrowed. The chancellor, it is true, remarked that as it was an effort to subject the defendant to a forfeiture of the debt, it would not be granted without an offer to pay what was borrowed. A demurrer to a similar bill was sustained in the case of Tupper v. Powell, 1 J. C.

R. 439; and I know of no rule which requires this particular form to be adopted in reference to usury more than any other subject. Whether it be a rule in use as to usurious contracts only, or not, it has its origin in the principles of equity; and, being founded in principles of equity, I cannot perceive why it should prevail in one class of cases only. But it is not necessary that we should rest the case on this point, as on the first ground takezr we think the case is with the appellazrts. The decree of the charzcellor znust be reversed, azzd the demurrer sustaizred, and the bill dismissed.