case BOSANQUETT versus Dashwood Nov this court will decree money overpay in  pursuance of a usurious contract to be account for notwithstanding the  agreement of the oppress party to allow such payment the plaintiff be assignee  under a commission of bankruptcy against the two cotton bring their bill  against Dashwood the defendant as executor of sir Francis Dashwood who have in  his lifetime lend several sum to the cotton the bankrupt upon bind hear pound  per cent interest be the then legal interest and have take advantage of their  necessitous circumstance and compel they to pay at the rate of pound per cent  to which they submit and enter into other agreement for that purpose and so  continue pay pound per cent from the year to the year it be decree at the roll  that the defendant shall account and that for what have be real lend legal  interest shall be compute and allow and what have be pay over and above legal  interest shall be deduct out of the principal at the time pay and the  plaintiff to pay what shall be due on the account and if the testator have  receive more than be due with legal interest case tempt Talbot that be to be  refund by the defendant and the bind to be deliver up case tempt Talbot er p  Mr solicitor general and Mr fazakerley insist for the defendant that it be  hard to inquire into a transaction of so long stand the party have on all side  submit to the agreement and that willing non fit in an unjust manner which be  the reason of the Lord holt opinion in the case of Tomkins versus Barnet Lord  Mansfield express his suspicion of the accuracy of this case as report by  Salkeld in the follow word videlicet as to the case of Tomkins v Barnet it  have often be mention and I have often have occasion to look into it but it be  so lose report and stuff with such strange argument that it be difficult to  make any thing of it one book say it be determine by Lord holt another by Lord  Treby certain it be it be only a nisi prius case I think the judgement may  have be right but the reporter Salkeld not proper acquaint with the fact have  recourse to false reason in support of it the case must have be as I take it a  action to recover back what have be pay in part of principal and legal  interest upon a usurious contract and therefore the action will not lie for so  far as principal and legal interest go the debtor be oblige in natural justice  to pay therefore he can not recover it back but for all above legal interest  equity will assist the debtor to retain if not pay or a action will lie to  recover back the surplus if the whole have be pay the reporter not see this  distinction have give the absurd reason that willing non fit in juria and  therefore the man who from mere necessity pay more than the other can in  justice demand and who be call in some book the slave of the lender shall be  say to have pay it Willing and have no right to recover it back and the lender  shall retain though it be in order to prevent this oppression and advantage  take of the necessity of other that the law have make it penal for he to take  dougl Rep in note salk why a action will not lie for recovery of money pay  upon a usurious contract and that the bankrupt be sharer sin shall have no  more advantage here than at law nothing be more common than to admit the party  after he have pay the money to be a evidence in a information upon the statute  of usury which show he be in the eye of the law after payment a indifferent  person and compare it to the case of game where if the loser pay the money and  do not sue for the recovery within the time prescribe by the act by stat  whether c sec the loser may recover the money lose within three month after  the loss if he do not sue for and recover it within that time any person may  recover the sum lose and Triple the value but it have be hold that the  limitation of three month be confine to the case of money actual pay at the  time but that if a bind or other security be give and the money or part of it  afterward pay a court of equity will compel the repayment of that money to the  loser after the expiration of three month Bawden v Shadwell Ambl the reason  there state to have be give by Lord Hardwicke be that the security be void by  whether c the payment under such security can be support but queen because the  contract also be not make void by car c sec if the loss at one sit be more  than pound the contract itself be make void and in rawden v Shadwell the bind  be for pound he be bar and cite the case of walker versus Penry vern b In this  case upon a rehear the only question insist on be whether a mortgagee have  receive interest upon a old mortgage after the rate of pound per cent after  such time as the interest be reduce to pound per cent by the statute shall  allow or discount the pound per cent towards satisfaction of the principal the  court confirm the former decree videlicet that the pound per cent pay to the  mortgagee for interest shall be retain by he as such and that the pound per  cent shall not be discount nor apply towards satisfaction of the principal  Lord chancellor there be no doubt of the bind and contract therein be good but  it be the subsequent agreement upon which the question arise it be clear that  more have be pay than legal interest that appear from the several letter which  have be read and which prove a agreement to pay pound per cent and that from  sir Francis Dashwood receipt but whether the plaintiff be entitle to any  relief in equity the money be pay and those payment agree to be continue by  several letter from the cotton to sir Francis Dashwood wherein be promise to  pay off the residue be now the question the only case that have be cite that  seem to come up to this be that of Tomkins versus Barnet above vide also  Jacques and Golightly Blackst in which this case be deny to be law which prove  only that where the party have pay a sum upon a illegal contract he shall not  recover it upon a action bring by he and though a court of equity will not  differ from the course of case tempt Talbot law in the exposition of statute  yet do it often vary in the remedy give and in the manner of apply they the  penalty for instance give by this act be not to be sue for here nor can this  court decree they and though no indebitatus assumpsit say with smith and  Bromley cite in Jones v Berkeley dougl where in the word of lord Manslield the  follow rule be lie down v iz if the act itself be immoral or a violation of  the general law of public policy there the party pay shall not have his action  indebitatus assumpsit for where both party be equal criminal against such  general law the rule be drinking be condition to ward off but there be other  law which be calculate for the protection of the subject against oppression  extortion and deceit and if such law be violate and the defendant take  advantage of the plaintiff condition or situation there the plaintiff shall  recover Vid also S p Cockshot v Bennet b b m Geo term Rep Jacques v withy c b  t Geo h Bl nerot v Wallace b b Geo term Rep Astley v Reynolds Str where the  plaintiff have pawn some good with the defendant for pound he refuse to  deliver they up unless the plaintiff will pay he pound the plaintiff have  tender which be more than the legal interest amount to but find that he can  not otherwise get his good back he at last pay the whole demand and bring a  action for the surplus beyond legal interest as money have and receive to his  use and recover Vid also S p Fitzroy v gwillim b b e Geo term Rep the result  of which case upon principle and by analogy seem to be that a plaintiff may  recover upon this action all money pay by he beyond legal interest upon a  usurious contract or loan vide also Bellon v hide and mechell atk to Scott v  Nesbeit bro Charles Rep ex part skip Ves will lie in strictness of law for  recover of money pay upon a usurious contract yet that be no rule to this  court which will never see a creditor run away with a exorbitant interest  beyond what the law allow though the money have be pay without relieve the  party injure the case of sir Thomas mere hear by the Lord Harcourt be a  authority in point that this court will relieve in case which though perhaps  strict legal bear hard upon one party the case be this sir Thomas mere have in  some mortgage insert a covenant that if the interest be not pay punctual at  the day it shall from that time and so from time to time be turn into  principal and bear interest upon a bill file the Lord chancellor relieve the  mortgagors against this covenant as unjust and oppressive so likewise be the  case of Broadway Broadways v morecroft Moseley salk comens Rep Heathcote v  Paignon bro Charles Rep n which be first hear at the roll and then affirm by  the Lord king a express authority that in matter within the jurisdiction of  this court it will relieve though nothing appear which strict speak may be  call illegal the reason be because all those case carry somewhat of fraud with  they I do not mean such a fraud as be proper deceit but such proceed as lie a  particular burden or hardship upon any man it be the business of this court to  relieve against all offence against the law of nature and reason and if it be  so in case which strict speak may be call legal how much more shall it be so  where the covenant or agreement be against a express law as in this case  against the statute of usury though the party may have submit for a time to  the term impose on he the payment of the money will not alter the case in a  court of equity for it ought not to have be pay and the maxim of willing non  fit in an unjust manner will hold case tempt Talbot as well in all case of  hard bargain against which the court relieve as in this it be only the  corruption of the person make such bargain that be to be consider it be that  only which the statute have in view and it be that only which entitle the  party oppress to relief this answer the objection that be make by the  defendant counsel of the bankrupt be sharing in sin for they be oppress and  their necessity oblige they to submit to those term nor can it be say in any  case of oppression that the party oppress be sharing in sin since it be that  very hardship which he labour under and which be impose on he by another that  make the crime the case of gamester to which this have be come case tempt  Talbot er p pare be no way parallel for there both party be criminal and if  two person will sit down and endeavour to ruin one another and one pay the  money if after payment he can recover it at law I do not see that a court of  equity have anything to do but to stand neuter there be in that case no  oppression upon one party as there be in this another difficulty be make as to  the refund but be not that a common direction in all case where security be  seek to be redeem that if the party have be overpay he shall refund more v  batten Ambl Rep must he keep money that he have no right to mere because he  get it into his hand I do not determine how it will be if all the security be  deliver up this be not now before I I only determine what be now before the  court and be the common direction in all case where security be seek to be  redeem and so affirm the decree c case tempt Talbot er p in Reg lib a fol this  case be thus state videlicet Samuel cotton and John cotton afterward bankrupt  borrow several considerable sum of money from the testator sir f Dashwood for  secure whereof with interest they give he several bind and note under their  hand and about December account be settle between they and all interest on the  say bind and note pay pound remain due to the say testator which be secure by  several bind and the say testator soon after demand immediate payment of the  money due on the say bind and the bankrupt be unable to pay the same the  testator insist that for the future they shall pay he interest at the rate of  pound per annum for every pound of the say pound and sign a agreement for that  purpose and if they will not pay such interest threaten to put the say bind in  suit whereupon the say bankrupt sign a agreement in write to pay such interest  and pursuant thereto from to inclusive pay the say testator pound ayear for  the interest of the say pound beside the same interest for pound borrow of he  on the that April on their promissory note and for pound borrow of he on the  that December on their promissory note that the say bankrupt about the year  pay the say testator pound in part of a bind debt and soon after borrow pound  upon a bind and promissory note date the that may whereby they become indebt  to he in pound for which they pay interest to he at the rate aforesaid from  that time to the say bankrupt in July pay the say testator pound in discharge  of one of their bind and since his death pay the defendant his executor the  further sum of pound in discharge of other of the say bind and it appear by  the schedule annex to the plaintiff bill which contain a account of all the  money borrow of the say testator and of the payment make in discharge thereof  that nothing remain due on the say bind and the plaintiff insist the same be  considerable overpay the defendant admit they have find a note or memorandum  date the that of January whereby the bankrupt agree that what sum of money  shall remain due from they on bind from ladyday shall be pay as soon as may be  and to allow interest after the rate of pound ayear for every pound till the  whole shall be pay and that the bankrupt about July pay the testator pound in  part of the pound which they then owe he and since his death they have pay the  defendant his executor the further sum of pound in further part of the  principal money owe to his estate and say that since the testator death there  be find among his effect beside a bind from the bankrupt to the testator which  have be deliver up five bind all execute by the say bankrupt to the testator  and believe the bankrupt be indebt to the testator at his death in pound  principal and interest for the same at the rate of pound for every pound from  ladyday and after his death and before their bankruptcy at several time pay  the defendant the say pound part of the say principal and pound on account of  interest at pound per cent for every pound and in June the say defendant make  up a account of what be receive on account of the say pound and interest after  the say testator death compute the interest only to ladyday and on the balance  of such account pound appear due for principal and pound for interest and such  account be then deliver to the bankrupt they acknowledge such balance be just  due and promise to pay the same and the say defendant the executor insist that  if the say bankrupt pay their testator any great interest for the money they  owe he than after the rate of pound per annum for every pound the same be  actual pay by the bankrupt themselves the plaintiff can not revoke such  payment which be voluntary make and admit asset of their testator sufficient  to answer plaintiff demand Reg lib fol case tempt Talbot er p