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heard on the condition that he does himself what is equitable and just, by paying or offering to pay the principal sum with legal interest: Scott v. Nesbit, 2 Bro. C. C. 641.

The same principle is reiterated by the court in Jordan v. Trumbo, 6 Gill & J. 105, on a bill filed by a mortgagor praying discovery as to the usury. The court said: "It is a principle well established in pleading in equity that he who goes into & court of equity to be relieved against the usurious contract must, in his bill, tender and offer to pay the principal and interest legally due, and confine his claim to the equitable interposition of the court to the usurious excess only."

The doctrine thus enunciated in the cases to which we have referred is not confined to the courts of equity. It prevails also in the legal tribunals. And we therefore find the court deciding in Lucas v. Latour, 6 Har. & J. 100, that an action of trover could not be sustained by the borrower to recover the value of goods hypothecated to secure a usurious debt, unless the plaintiff had tendered the amount actually loaned. It is also established that if the borrower has paid money upon a usurious contract, both the courts of law and equity will enable him to recover back the excess paid beyond the principal and lawful interest, but not further.

The doctrine announced in the cases to which we have adverted, stands upon the principle that the borrower is at all times and under all circumstances under a moral obligation to pay to the lender the sum actually loaned with legal interest, as a fair compensation for its use. When a borrower appears in a court of law or equity as a suitor seeking to be relieved from a usurious contract, he will not be heard except on the equitable condition that he pays to his creditor the sum actually and fairly due after deducting the illicit interest; and it is very clear that when the borrower stands before the court in the attitude of a defendant, he is not subject to the same rule which is applied to him when he holds the relation of plaintiff, because in this predicament of the case, the courts have no authority to force upon him the performance of this moral obligation, consistent with the powers, remedies, and rules of pleading, by which they are governed in the administration of the law.

What then does the act of 1845 profess to accomplish? The legislature, in the exercise of its remedial authority, comes to the aid of the courts and declares that the borrower, who as a defendant, seeks to extricate himself from a usurious contract, shall do precisely what he is obliged to perform, when he aske

to be protected against it in the position of a plaintiff. In this respect the statute is plainly remedial. It is no more than the exercise of the legislative authority over the subject of remedies a power which the legislature may unquestionably exercise at pleasure in relation to past as well as future contracts: Bronson v. Kinzie, 1 How. 315; Butler v. Palmer, 1 Hill (N. Y.), 324.

It may be said, however, that admitting this statute to be remedial in its form, yet the thing to be protected is the vested right. And that an act which divests a right through the instrumentality of the remedy and under the pretense of regulating it, is as objectionable as if the shaft was leveled directly at the right itself. The proposition is certainly true in reference to cases to which it is applicable. But in this case no vested right was divested. When vested rights are spoken of by the courts as being guarded against legislative interference, they mean those rights to which a party may adhere, and upon which he may insist without violating any principle of sound morality. In the language of Judge Duncan in Satterlee v. Matthewson, 16 Serg. & R. 191, "there can be no vested right to do wrong." In the nature of things, there can be no vested right to violate a moral duty, or to resist the performance of a moral obligation. And although a borrower may be justified in morals as he is in law in resisting the payment of illicit interest extorted from him while he was in vinculis, and in consequence of his necessitous condition, he certainly can have no right as a matter of private justice, to repudiate his contract so as to escape from the payment of the sum actually received.

We are perfectly satisfied that this act of assembly is free from objection, and is to be enforced as a valid exercise of legislative power. We think, therefore, that the judgment of the county court must be affirmed.

There is no force in the objection that the judgment rendered in this case was defective, as not conforming to the replication. The plea, in which usury was alone set up as a matter of defense was bad, as it was not in conformity with the act of 1845, chapter 352. There was therefore in the case no plea, and the plaintiff was entitled to the sum claimed by him in his declaration. The action being founded on a bill obligatory, the intervention of a jury was entirely unnecessary. Judgment affirmed.

GENERAL DEMUrrer, Judgment On: See Donnell v. Jones, 48 Am. Dec. 59, and cases in this series cited in the note thereto.

STATUTE NOT CONSTRUED AS RETROSPECTIVE unless the intention of the legislature to make it so is clearly manifested: See Oriental Bank v. Freeze, 36 Am. Dec. 701, citing prior cases in this series; Oyon's Succession, 41 Id. 274, and cases cited; Bruce v. Schuyler, 46 Id. 447, and note on the citations thereof. The principal case is cited to this effect in Herbert v. Gray, 38 Md. 531; Williar v. Butchers' L. & A. A., 45 Id. 556. The principal case is also cited to the effect that a statute clearly indicating by its language an intention that it have a retroactive effect must be so construed, in State, Mayor and Council of Baltimore v. Norwood, 12 Md. 206; Anderson v. Baker, 23 Id. 565.

POWER OF COURTS TO DECLARE STATUTES UNCONSTITUTIONAL is undoubted, but must be exercised with great care: See Flint River Steamboat Co. v. Foster, 48 Am. Dec. 248, and note 269, citing prior cases. The principal case is cited to the effect that courts have a revisory power over legislative enactments, in Davidson v. Wiley, 31 Ala. 458; and in Mayor and Council of Hagerstown v. Sehner, 37 Md. 191, it is cited as supporting the principle that assailants of a statute, on the ground of its unconstitutionality, must make out a clear case of legislative usurpation.

EX POST FACTO LAWS, what are: See Dash v. Van Kleeck, 5 Am. Dec. 291; Jones v. Jones, Id. 645; Dickinson v. Dickinson, 9 Id. 608.

DECLARATION OF RIGHTS OF MARYLAND recognizes right of legislature to pass retrospective laws relating to civil cases and contracts. The principal case is cited on this point in Mayor and Council of Hagerstown v. Sehner, 37 Md. 198.

USURIOUS CONTRACT, PRINCIPAL AND INTEREST RECOVERABLE ON. See Bank of Chillicothe v. Swayne, 32 Am. Dec. 707, and note citing prior cases in this series.

THE PRINCIPAL CASE IS CITED as establishing the law in Maryland, that plaintiff on a usurious contract may recover the principal and six per cent. interest, and as deciding the act of 1704 to be repealed as far as it is inconsistent with the act of 1845: Fant v. Miller, 17 Gratt. 78; Bowman v. Miller, 25 Id. 336. It is also cited as sustaining the proposition that in an action for relief against a usurious contract the borrower can recover, at law or equity, no more than the excess paid on such contract beyond the amount of the principal and legal interest: Scott v. Leary, 34 Md. 395; Powell v. Hopkins, 38 Id. 13; Hill v. Reifsnider, 39 Id. 433. In Planters' Bank v. Sharp, 43 Am. Dec. 470, the plaintiff on a usurious contract was allowed to recover the principal only, without any interest.

REMEDIAL LEGISLATION IS CONSTITUTIONAL, though exercised over past contracts: See Sommers v. Johnson, 24 Am. Dec. 604, citing prior cases in this series: Hepburn v. Curts, 32 Id. 761; McMillan v. Sprague, 35 Id. 413; Sutherland v. De Leon, 46 Id. 100; Bruce v. Schuyler, 46 Id. 447; Bolton v. Johns, 47 Id. 404. The principal case is cited on this point in Calvert v. Williams, 10 Md. 495; Coosa River Steamboat Co. v. Barclay, 30 Ala. 126; Maynes v. Moore, 16 Ind. 123; Kunkle v. Franklin, 13 Minn. 129.

VESTED RIGHTS, NATURE of: See Bailey v. P., W. & B. R. R. Co., 44 Am. Dec. 593, in which it was decided that a statute allowing a corporation to maintain an action on a note on which action was barred on account of the dissolution of the corporation at the time the note was taken, divested no vested right: See also Oriental Bank v. Freeze, 36 Id. 701; and Thompson v. Schlater, 33 Id. 556.

THE PRINCIPAL CASE IS CITED in Coosa River Steamboat Co. v. Barclay,

30 Ala. 126, and Powell v. Sammons, 31 Id. 561, to the effect that the legis lature can not take away vested rights; in Cohen v. Wright, 22 Cal. 327, and Woodruff v. Scruggs, 27 Ark. 32, on the point that "there can be no vested right to do wrong; " in Danville v. Pace, 25 Gratt. 15, to the effect that vested rights guarded from legislative interference are such as may be adhered to without violating any principle of sound morality; in Mayor and Council of Hagerstown v. Schner, 37 Md. 190, to the effect that the borrower is always under a moral obligation to pay the sum loaned, with legal interest thereon, and that vested rights guarded against legislative interference are such as may be adhered to without violating any principle of sound morality; and the court thereupon remarking that such general principles are con trary to the generally accepted rule that the legislature can not revive debts barred by the statute of limitations, and that what was said in the principal case would present a serious obstacle to the adoption of said rule in Mary. land, at least as far as actions ex contractu are concerned; and in Grove v. Todd, 41 Md. 644, to the effect that the right of a defendant to bar an otherwise honest debt by the defense of usury is not a vested right founded on principles of sound morality, and hence not guarded from legislative interference.

RETROACTIVE STATUTES, CONSTITUTIONALITY OF.-A retroactive statute, relieving from a mere informality, is constitutional: Chesnut v. Shane's Lessee, 47 Am. Dec. 387. See also note to Bolton v. Johns, 47 Id. 404, citing prior cases on constitutionality of retroactive statutes.

THE PRINCIPAL CASE IS CITED in Elliott v. Elliott, 38 Md. 362, to the effect that a statute is not invalid merely because retrospective in its terms; in Rich v. Flanders, 39 N. H. 386, that retrospective laws may be made in civil cases, where they do not impair the obligation of contracts; in Newman v. Samuels, 17 Iowa, 553, to the effect that such laws, violating no rule or principle of justice or morality, will be sustained.

OREAR ET AL. v. McDONALD ET AL.

[9 GILL, 350.]

HOLDER OF BILL OF EXCHANGE MUST PRESENT IT FOR PAYMENT on the day of its maturity, and give notice to the drawer, within a reasonable time, of its non-payment; and any laches in this respect, unless excused, exonerates the drawer.

PRESENTMENT OF BILL FOUR DAYS AFTER MATURITY exonerates drawer, unless excused.

EXISTENCE OF EXCUSE OF DEMAND AND NOTICE is a question of law, the facts being ascertained.

RIGHT TO DEMAND AND NOTICE does not depend on drawer's having funds in hands of drawee, at maturity of draft, adequate to its payment, as ascertained by ulterior events.

DRAWERS ARE ENTITLED TO DEMAND AND NOTICE, when, at the maturity of the bill, they had a right to expect, from the state of affairs existing between the drawees and themselves, that their bill would be honored. DRAWING BILL IS NOT FRAUDULENT when drawers have a right to expect that their bill will be honored at maturity.

GROUNDS FOR REASONABLE EXPECTATION THAT BILL WILL BE HONORED are such as would induce a merchant of common prudence and ordinary regard for his commercial credit to draw a like bill.

PROMISE BY DRAWEES TO DRAWERS TO HONOR THEIR DRAFT when presented is conclusive evidence of reasonable ground for belief by the drawers that their draft will be paid, unless it is mitigated or explained. SUBSEQUENT DRAFTS, FOR PAYMENT OF WHICH SUBSEQUENT CONSIGNMENTS ARE MADE, do not constitute a fraudulent interception of funds originally in the hands of the drawee, against which original draft was drawn. INSOLVENCY OF DRAWEE IS NO EXCUSE for failure of presentment and notice. NO RECOVERY UPON THE BILL ON MONEY COUNTS can be had against drawers exonerated from liability by laches.

APPEAL from Baltimore county court. The case is sufficiently stated in the opinion.

Wallis, for the appellants.

George M. Gill and McMahon, for the appellees.

By Court, MARTIN, J. This case comes before this court on an appeal from the judgment of Baltimore county court. This case originated in an attachment issued by the appellants against the appellees, as garnishees, to affect the funds of Menifee and Slaughter in their hands, and the claim sought to be enforced by this proceeding was founded on a bill of exchange drawn by Menifee and Slaughter, or Clarke and Kellog, in favor of J. W. Hunt, for three thousand dollars, payable seventy days after date, and dated the seventeenth of December, 1842, and of which the appellants were the holders. The garnishees appeared to this attachment, and pleaded non assumpsit by the defendants, and nulla bona for themselves. The court below having rejected the prayers offered by the plaintiffs, and granted those presented by the defendants, the verdict and judgment were against the plaintiffs. From this judgment they have appealed, and thequestions raised for our consideration by the record are those which relate to the ruling of the court below, upon the points of law submitted for their decision.

The draft in this case was due on the twenty-eighth of February, 1843. It is the unquestionable duty of the holder of a bill of exchange, to which he impliedly assents upon receiving the bill, to present it for payment on the day of its maturity, and to give notice to the drawer within a reasonable time of its nonpayment. Any neglect or default in this respect, unless excused, affects the holder with laches, and exonerates the drawer. appears from the evidence offered at the trial of this cause by the plaintiffs, that this draft was not presented for payment

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