j* From Fayetteville District. J The bill charged, that Branton and -Shcpperd gave their joint obligation to Dixon, and thereby bound themselves to deliver to Dixon forty barrels of merchantable pork : that failing to deliver the pork by the day mentioned in their obligation, Dixon pressed them for payment, and to procure a forbearance for eight or nine months, they agreed to deliver to Dixon, twenty additional barrels of merchantable poi k, and thereupon their first…
¶2
Tlie bill sets forth that an usurious contract had been entered into between Complainant and Defendant, on which Defendant brought an action at Law, and obtained judgment. If the contract were really usurious, and the Complainant wished to avail himself of the statute against usury, he ought to have pleaded it to the action at Law, or offered to this Court sufficient reasons for not pleading it. Upon this ground, therefore, the demurrer ought to be sustained. But if the Complainant had in other respects made out such a case as would entitle him to relief in Equity, he has omitted to waive the penalty which the act of 1741, ch. 11, imposed upon Defendant, in case the contract should be found to be usurious. Let the demurrer be sustained, and the bill be dismissed with costs.
