* Where the statute makes a usurious contract void, or forfeits a part of the principal or legal interest, by way of penalty, the creditor of course must lose this, for the debtor may interpose this defence, however inequitable it may be. But if the debtor make himself a plaintiff, and seek relief against a contract for its usury, it is held, in equity, that he must pay or tender the whole amount of principal and legal interest, (q) It was once * an established rule, that there is no way in which the debtor can ask relief at law, except collaterally. He must wait until he is sued, before he can raise directly the question of his right to this defence, and then this defence is given and measured by the statute. But if he, for example, brings trover for goods pledged, to secure a debt for which a note with usurious interest was given, and seeks to get the value of his goods without deducting his debt, on the ground that the note is void, it might be said to him, on high authority, that the note may be void, but that is not now the question; for he owes money, and has pledged goods, and must pay his debt to redeem them, (r) But this doctrine has been attacked, and perhaps regularly paid, and the present qui tarn action was brought, more than a year from the first payment, and within a year from the last. A majority of the court held the action maintainable, deciding that the penalty of a forfeiture of "the money and other things lent," was incurred at each time when the lender received more than the legal interest. Mr. Justice Kennedy, however, delivered a dissenting opinion, in which he vindicates his own opposite ruling at Nisi Prius, and adopts the same view taken by Mr. Justice Parke, supra, although the case of Wood v, Grimwood was not cited in the case.

(q) Scott v. Nesbit, 2 Brown, Ch. 641, 2 Cox, 183; Ex parte Skip, 2 Ves. Sen. 489; Benfield v. Solomons, 9 Ves. 84; Rogers v. Rathbun, 1 Johns. Ch. 367; Tupper v. Powell, id. 439; Fanning v. Dunham, 5 Johns. Ch. 122; Fulton Bank v. Beach, 1 Paige, 429; Morgan v. Schem-merhorn, id. 544; McDaniels v. Barnuin, 5 Vt. 262, Jordan v. Trumbo, 6 Gill & J. 103; Thomas v. Mason, 8 Gill, 1; Anonymous, 2 Desaus. 333; Stone v. Ware, 6 Munf. 541; Shelton v. Gill, 11 Ohio, 417; Day v. Cummings, 19 Vt. 496; Ballinger v. Edwards, 4 Ired. Eq. 449; Phelps v. Pierson, I la. 121; Wil son v. Hardesty, 1 Md. Ch. Dec. 66. In Hindle v. O'Brien, 1 Taunt. 413, the defendant had given the plaintiff, for various sums borrowed of him, bills and notes with usurious premiums. The parties at length stated a usurious account, and the defendant gave new bills, and a warrant of attorney to confess judgment, and the old bills and notes were given up. Upon the defendant's failure to pay an instalment of the new bills, the plaintiff entered up judgment on the warrant of attorney and sued out execution. Upon an application to set aside the judgment, the court did so only upon the terras that the defendant should repay the principal and legal interest due, which was ordered to be ascertained by a prothono-tary. But in Roberts v. Goff, 4 B. & Ald. 92, upon an application to set aside a judgment obtained under a warrant of attorney, and to have the warrant of attorney delivered up, on the ground of usury, the court refused to impose the terms that the party should pay the money actually advanced with legal interest. Bayley, J, said: " We cannot impose such terms. The instrument is void. It is not good at law." Under the construction put upon the Virginia statute of usury, it seems that the debtor need only pay the principal debt, without any interest. Young v. Scott, 4 Rand. 415; Clarkson v. Garland, 1 Leigh, 147; Turpin v. Povall, 8 Leigh, 93; Marks v. morris, 4 Hen. & M. 463. See also Boone v. Poindexter, 12 Smedes & M. 640.

(r) Fitzroy v. Gwillim, 1 T. R. 153.