WILSON VS. HARDESTY. 69

for even in the courts of law, it has been decided that an action
of trover cannot be maintained for goods mortgaged to secure
an usurious debt, unless the plaintiff has tendered the amount
actually loaned. Lucas vs. Latour, 6 Har. & Johns; 100.

There can be no doubt, then, that if the present defendant
was seeking, either in a court at law or equity for relief against
this mortgage, he could only succeed by paying or offering to
pay the amount he actually received from his creditor, together
with the legal interest thereon, and consequently the whole
effect of the act of assembly is to apply the same equitable prin-
ciple to the relation which the parties bear to each other in this
case. If the mortgagor was the plaintiff, and the mortgagee
defendant, either at law or in equity, relief would only be grant-
ed upon the equitable principle, of paying the sum borrowed
with legal interest. Now, has not the legislature the constitu-
tional power to say that the same rule of honesty shall be ob-
served, when the position of the parties is reversed, for to that
extent, and no further does the act go. In this view of the
case, it would seem to be no more than the mere exercise of
the law making power, over the subject of remedies, their right
to regulate, which cannot be disputed.

Upon the whole, my opinion is, that the act is not unconsti-
tutional, and, therefore, I shall pass a decree for the payment of
the sum admitted to be actually and fairly due; or for a sale of
the mortgaged property, in case such payment is not made in a
reasonable time.

[No appeal was taken from this decree, but in a subsequent
case, the Court of Appeals affirmed the constitutionality of the
act of 1845, ch. 352, with reference to pre-existing usurious
contracts. ]