Branton v. Dixon.

5 N.C. 225

• Court: Supreme Court of North Carolina
• Decided: July 5, 1809
• Status: Published

Opinion

Ham, Judge,

delivered the opinion of the Court:

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.