majority">Hosmer, Ch. J.

The statute we are now called on to expound, with the most mitigated construction of which it is susceptible, bears very hard on the plaintiff. He is compelled, under oath, to disclose, the real consideration of his demand ; and the principal being ascertained, he at most is to recover that only, without any interest on the note in suit. Chancery never enforces a discovery, which may subject the party to a forfeiture ; and on this principle, upon a bill to vacate a usurious contract, a disclosure is never compelled, unless the bill contain an offer or tender of the sum actually due, with the legal interest. Earl of Suffolk v. Green & al. 1 Atk. 450. Chauncey v. *184Tahourden, 2 Atk. 392. Rogers v. Rathbun, 1 Johns. Chan. Rep. 367. He who will have equity, must do equity ; and the lawful interest is considered to be as equitably due, as the principal. Bosanquet v. Dashwood, 1 Talb. Ca. 37. 1 Fonbl. 22. 235. Fitzroy v. Gwillim, 1 Term Rep. 153. Rogers v. Rathbun, 1 Johns. Chan. Rep. 367.

As it is the province of the court, jus dicere, non dare, the meaning of the statute must be first ascertained, and then effectuated. So far as the act may be considered penal, and this undoubtedly is its character in depriving the creditor of the interest due on an honest principal, it ought to receive a strict construction.

By the 9th and 10th sections of the law for restraining usury, in any action brought on bond, note, or other instrument, the defendant is permitted to file a bill, alleging the consideration to be usurious ; and then it becomes the duty of the court to investigate the subject. If, upon a hearing, the bond, note or other instrument, is found to be usurious, it is to be adjusted in equity ; and the court is to give judgment for no more than the principal sum, without interest. In this case, the usury was expunged, and the interest on the note in suit disallowed. It is now contended, that any former interest on the actual principal, ought likewise to have been annulled, and deducted from the note. This, I think, would be extending the law beyond the intention of the legislature, as it is apparent from their expressions. The bond and note spoken of, are the objects to which the words of the statute are directed ; and when it is said, the real principal shall be allowed, without the interest, the fair intendment is, that the sum justly due on the specialty shall be recovered, without the allowance of interest on that instrument. The construction of the statute in the court below, therefore, was correct; and there is no error in the determination complained of.

The other Judges were of the same opinion.

Judgment affirmed

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