WILSON VS. HARDESTY. 67

THE CHANCELLOR :

The question, and the only question in this case, relates to the
validity of the act of 1845, as a constitutional exercise of legis-
lative power, so far as concerns pre-existing contracts and en-
gagements tainted with usury.

The defendant insists, that inasmuch as the act of 1704 de-
clares that all bonds, contracts and assurances whatsoever, made
after the time therein limited, whereupon, or whereby, more
than the rate of interest fixed by that act is reserved, shall be
utterly void, it follows that the legislative authority is insuffi-
cient to give such contracts validity to any extent whatever.

The argument is, that the present mortgage is an absolute
nullity, and any attempt on the part of the legislature to give it
efficacy to any extent, or to abridge the right of the defendant
to defend himself against it, is equivalent to the legislative cre-
ation of a contract, out of elements having no legal existence.

But, notwithstanding the language of the act of 1704 is so
strong, it is very certain, that contracts within its provisions are
not, under all circumstances, treated as merely void—for it is
settled, that if a party goes into a court of equity, asking relief
against an usurious mortgage or contract, he must do equity by
paying, or offering to pay, the principal sum and legal interest.
Trumbo vs. Blizzard, 6 Gill & Johfison, 18. Nay, he is not
even entitled to a discovery as to the usury, unless he offers to
pay the principal debt, and legal interest. Jordan vs. Trumbo,
6 G. & J, 103. Courts of equity, therefore, have undertaken,
upon a principle which seems to have met the approbation of
the community, for it is one long since established, to-give a
reasonable sanction to contracts affected by usury, by refusing
to relieve a party against them, unless he would himself do that,
which the moral obligation arising from the receipt and appro-
priation to his own use of the money of another required him
to do.

There can be no doubt, that if the legislative department of
the government transcends its authority, the courts of justice
are bound, in discharge of the functions properly appertaining
to them, to pronounce its acts void. Crane vs. Meginnis, 1 Gill
& Johns., 463.