Reports of Cases Decided in the Court of Chancery of the State of New Jersey (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1836 Excerpt: ...ready to pay such amount. There was also notice given of a motion to discharge the order staying proceedings in the original suit; the argum nt of which came on with the demurrer, by W. Pennington and /. H. Williamson, for the complainants in the original bill, and defendants in the cross-bill, in support of the demurrer. E. Van Arsdale, sen. for complainants in cross-bill. Cases cited: --1 Fonb. E. 25, (A.); 2 Ves. sen. 489; 2 Bro. C. R. 649; 4 Bro. C. R. 436; 16 Ves. jr. 124; 15 John. R. 555; 5 John. C. R. 142, 436; 3 Ves. and B. R. 14; 2 Bro. C. R. 124; Forrest. Ex. R. 129; 3 Merriv. R. 161; 1 John. R. 580; Eden on Inj. 16, 89; 1 Sch. and L. 115, 142, 310; Jeremy E. 503; 2 Bro. C. R. 641; Ca. T. Talb. 38; 4 John. C. R. 125; 2 John. C. R. 148. The Chancellor. The question is upon the demurrer: is it rightfully taken? The general doctrine on the subject is this: where a suit in equity is brought upon a mortgage or other instrument tainted with usury, the defendant may set up the usury, and if he can prove the facts, may avoid the instrument, according to the letter of the statute. But where a party goes into a court of equity, seeking relief from the operation and effect of an usurious instrument, he must offer to do what equity and good conscience require at his hands, that is, to pay the sum actually due; and if he omit to make such offer the defendant may demur: 1 Fonb. 25. Ld. Hardwicke says, in the case of Henkle v. The Royal Exchange Assurance Company, 1 Ves. sen. 317, that whoever brings a bill in the case of usury, must submit to pay principal and interest due, on which the courts lay hold and will relieve; and he lays down the same principle in exparte Skip, 2 Ves. 489. Ld. Thurlow lays it down as a universal rule, Scott v. Nesbilt, 2 B. C. C. 649;..