Branton v. Dixon, 5 N.C. 225, 1 Mur. 225 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 225, 1 Mur. 225

Branton v. Dixon.

j* From Fayetteville District. J

Complainant having neglected to plead Usury to an action at Law upon his contract, and having in his bill, shewn to the Court no reason for this neglect, and not having waived the penalty given by the statute for usury, a demurrer to his bill was sustained, and the bill dismissed, i

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 obligation was surrendered up, and they executed another, binding themselves to deliver to Dixon sixty barrels of merchantable pork. That within the time allowed for the delivery, Branton delivered thirty-one barrels of pork: that Dixon afterwards instituted a suit against Branton and Shepperd, in Ncwberri Superior Court, and recovered a judgment for £282 1 C, and costs of suit, a sum too great although nothing had been paid on the usurious contract. The bill then prayed for an injunction, and that Dixon might be compelled to come to a true and just account with Complainant, &c.

The bill set forth no reason why Complainant did not set up the usurious contract upon the trial at Law $ nor did Complainant, in his bill, waive the penalty given by the act of 1741, ch. 11, for the olfence of usury.

The Defendant demurred as to so much of the bill as charged him with usury, and answered as to the residue: and for cause of demurrer, the Defendant shewed, that Complainant ought to have pleaded the usurious contract, (if any,) to the action at Law. The bill, answer, and demurrer, were sent to this Court, for the opinion of the J udges.

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.