The age-herald. [volume] (Birmingham, Ala.) 1897-1902, 1899-06-15

punishment upon a party seeking 10 en-
force a usurious contract than the loss Of
all interest. Now, when the borrower, I'M
der such a contract, comes into a court of
equity to relieve him, he comes as wrong
doer as tainted with an Illicit agreement,
and the court imposes upon him the obli-
cation to pay the amount borrowed with
legal interest before 1t will interfere in his
behalf; and before it will grant relief,
which relief when granted must be an eK-
ception to the well-grounded rule as stated
by Lord Hardwicke. The borrower, as COM
plainant asks the court to depart from the
universal rule that it will not lend 1t aid to
a party who seeks relief from an Illegal
executory contract when he stands in pari
delieto. The court departs from this rule
and relieves him upon condition that he
shall offer to do and shall perform what
in equity ne should do Eslava vs.. Cramp-
ton, 81 Ala. 514; Eslava vs.. Elmore, 50 Ala.
5sT; Dawson VS.. Burris, 70 Ala. l15; Mort
gage Company VS.. Powell, 81 Ala, 4Sl; Ross
VS., Mortgage Company, 101 Ala. 367 10
American Decisions 449; Go Am Dec. Col
80 Am. st. Reps. 500; 2 Am. & Eng. Enc.
Law, page 1855; Pomeroy's Ed. Jur. Sect.
937.
This rule of courts of equity now under
consideration has obtained so long and so
universally that a plain declaration of the
legislature would be necessary to oyerturn
it. In this state, the legislative mind was
well informed of the rule, and that it had
been enunoated by the supreme court of
the state in numerous decisions. This rule
is a self-imposed principle recognized by
the courts of equity, and has become char
acteristic of such courts and is fundament-
al to them. It's application is one of the
most frequent Illustrations of the maxim
that HE who seeks equity must do equi-
ty," as well as the maxim THAT he who
comes into equity must come with clean
hands" If the legislature had intended to
abrogate doctrine. so well known and so
long recognized and acted upon in courts
of equity it would have been a simple
matter to have put its will into plain I'M
contiguous language. The statute against
usury and every word of 1t, is given full
force and effect when courts refuse TO
give their aid to the lender, to recover
more than the principal of usuriOus loan.
The doctrine is stated thus by Mr.. Pome-
roy: wherever the statutes have made
usurious loans and obligations absolutely
void, If a borrower brings a suit in equi-
ty for the purpose of having a usurious
bond other security surrendered and
cancelled the relief will be granted only
upon condition that the plaintiff himself
does equity by repaying to his creditor
what is justly and in good faith due, that
is, the amount actually advanced with
lawful interest, unless indeed the statute
has gone so far as to expressly prohibit
the court from imposing such terms as
the price of this relief" l Pom Eq. sec.
391.
1t first occurred that the complainant by
the amendment to her bill had retracted
her offer to do equity and that therefore
no decree could be rendered in this case
except one dismisslng the bill; but upon
further consideration, l am of the opinion
that inasmucn as the offer originally made
in the bill to do equity was allowed to reA
main and it is an unconditional offer, it is
sufficient and that the court may predicate
a decree upon the same. Powell VS.. Mort
gage Co, supra.
The register of this court will enroll this
decree
This cause coming on to be hear at this
term, was submitted for final decree upoa
the pleadngs and proofs as noted by the
register, and also upon the report of the
register, filed in the cause on the 18th day
of February, 1899, and having been duly
considered and understood by the court, the
court is of the opinion that the complain
ant is entitled to relief And it appearing
to the court that the complainant has Of
fered in her bill to pay the amount adj
Vanced to her by the respondent corpora
ton, with legal interest thereon, and it hav-
ing been heretofore referred to the register
of this court to ascertain and report tbs
amount actually loaned or advanced to the
complainant by the respondent corporation
and to ascertain the amount paid by COM
plainant to said respondent upon said loan
and the register having made on the 18th
day Of February, 1899, his report of said
matters, and the same having been read in
open court, and laid over more than one
day, and no exceptions to the same hav-
ing been filed, it is
Ordered, adjudged and decreed that said
report be and the same is hereby in all
things ratified and confirmed. And it fur
Their appearingf to the court, from said re-
port of the register, that on the 21st day of
eFbruary, 1899, the complainant was pustly
due to the respondent corporation, under
and by virtue of the contract described in
the bill, after allowing all just credits and
set-offs the sum of twenty-five hundred and
thirty-nine and forty-nine-one-hundre
dollars (S2 239.49). And the court hereby
makes calculation of the amount of interest
which has accrued since said date, upon the
principal of sold loan, and finds the same
to be the sum of thirty-eight and forty
seven-one- hundreths dollars ($3S4O.
The decree also provides for the enform-
ents of the findings of court and provides
for the sale of the property to satisfy the
Judgment in coal providing payment is not
ma de within thirty DAYS.