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est thereon, as a condition of equitable land which is held by the payee and relief against a usurious loan. Rex- his grantee as security for the notes. ford v. Widger (1848) 2 N. Y. 131 Lowe v. Loomis (1890) 53 Ark. 454, 14 (holding a subsequent mortgagee of S. W. 674. property mortgaged by a borrower not a "borrower"); Schermerhorn v. Tal

IV. Jurisdictions in which law is un

settled. man (1856) 14 N. Y. 93 (holding original mortgagor to have lost his In several jurisdictions the law as status as “borrower" by selling the to the tender prerequisite to equitable equity of redemption); Allerton v. relief against a usurious contract does Belden (1872) 49 N. Y. 373 (holding a not appear to be definitely settled. surety of the principal debtor not a Under the earlier Mississippi de"borrower"); Wheelock v. Lee (1876) cisions, a debtor was obliged to tender 64 N. Y. 242 (holding an assignee in only the principal of a usurious debt bankruptcy of the borrower not within to obtain relief in equity, where there the statute); Buckingham v. Corning were special circumstances which (1883) 91 N. Y. 525 (holding an heir or justified a resort to equity in the first devisee of the borrower not a “bor- instance. Thus, in Parchman v. Mcrower"); Post v. Bank of Utica (1844) Kinney (1849) 12 Smedes & M. (Miss.) 7 Hill (N. Y.) 391 (holding a grantee 631, an action to have canceled a trust of a mortgagor not within the stat- deed and usurious notes secured thereute); Slosson v. Duff (1847) 1 Barb. by, and to enjoin a sale under the (N. Y.) 432 (holding a subsequent deed, it was held to be error to charge lienor of property mortgaged by a the maker of the notes with legal borrower not within the statute); interest in addition to the principal. Marsh v. House (1878) 13 Hun (N. Y.) See to the same effect, the following 126 (holding an heir or devisee of the cases, wherein the facts and the relief borrower not a "borrower"); Wright prayed appear to be substantially the v. Clapp (1882) 28 Hun (N. Y.) 7 same as in the earlier case: Norcum v. (holding an assignee for creditors of Lum (1857) 33 Miss. 299; Long v. Mca borrower not a “borrower"); O'Brien Gregor (1887) 65 Miss. 70, 3 So. 240. v. Ferguson (1885) 37 Hun (N. Y.) However, in American Freehold Land 368 (holding a grantee of a mortgagor & Mortg. Co. v. Jefferson (1892) 69 not a "borrower"); Re Fishel (1912) Miss. 770, 30 Am. St. Rep. 587, 12 So..' 117 C. C. A. 224, 198 Fed. 464, appeal 464, it was held that the makers of dismissed per stipulation in (1914) 235 certain notes bearing usurious interest U. S. 712, 59 L. ed. 437, 35 Sup. Ct. and secured by a trust deed could not Rep. 202 (holding a trustee in bank- maintain a bill which was brought to ruptcy of the borrower not within the enjoin a sale under the deed, to have statute).

an accounting, and to have the securi-' And it has been held that the statute ties canceled, without offering to pay does not require the surrender of a the principal of the notes and legal usurious bond, secured by a mortgage interest. In effect the decision apon New York real estate, without a pears to overrule the earlier Missistender of the principal and legal inter- sippi cases, though a distinction was est, where relief is sought in a court suggested on the ground that in the of equity in another state. Matthews previous cases the point was not made v. Warner (1881) 6 Fed. 461, affirmed by demurrer that the complainants in (1884) 112 U. S. 600, 28 L. ed. 851, had not offered to do equity, as was 5 Sup. Ct. Rep. 312.

done in the principal case. The court Under an Arkansas statute similar said: “In none of the cases above to that in New York, it has been held noted, arising under our Usury Statthat one who executes notes tainted utes, was the point made by demurrer with usury is entitled in a court of that the complainants had not offered equity, without tendering any part of to do equity. As we have said, the the principal of the notes, or interest questions were raised on appeal from thereon, to recover the possession of final decrees on the merits.” It must


be noted, however, that in Long v. enjoin the collection of certain notes McGregor (1887) 65 Miss. 70, 3 So. 240, and to have them surrendered and a demurrer was interposed, stating canceled, it was held that as to one of that the complainants did not offer to the notes, which was tainted with pay legal interest, though the case usury, the principal only should have was heard on bill, answer, and proof, been required as a condition of the after the demurrer was overruled. relief sought. The court said: “There Whether the appeal to the supreme remains, then, only the question of the court was based in part on the over- correctness of the decree of the court ruling of the demurrer, or

on the

as to the amount which he found due decree of the lower court alone, is not to the bank from Brewster on the note clearly indicated by the report of the dated October 9, 1891. The court case. In Deans y. Robertson (1886) found that there was still due the bank 64 Miss. 195, 1 So. 159, it was held from Brewster on this note $405.90, that, where the maker of usurious but the court recites in its decree that, notes offered to pay neither principal notwithstanding this latter note was nor legal interest, he was not entitled usurious, as it drew 2 per cent a to equitable relief. His bill to enjoin month, he found and decreed that the a sale under a trust deed securing the bank was entitled to recover the notes, and to have the securities can. amount of the note, $498.10, and 7 per celed, was therefore held to be demur- cent interest thereon from the date of rable.

the note to the date of the decree, In Nebraska, also, there appears to deducting from that amount the interbe a conflict in the decisions as to est payments made on the note by whether legal interest on debt Brewster, and credits made on the note tainted with usury must be tendered by the bank from the proceeds of the as a condition of equitable relief. In collateral notes. In this the learned Eiseman v. Gallagher (1888) 24 Neb. district court was in error. Section 5, 79, 37 N. W. 941, it was held that a chapter 44, Compiled Statutes 1893, mortgagor was not entitled to redeem provides: 'If a greater rate of interest mortgaged property without tendering than is hereinbefore allowed [10 per the principal and legal interest on a cent per annum] shall be contracted usurious obligation secured by the for or received or reserved, the conmortgage. There is a dictum to the tract shall not, therefore, be void; but same effect in Wilhelmson v. Bentley if in any action on such contract proof (1889) 27 Neb. 658, 43 N. W. 397, be made that illegal interest has been though the point was not raised by the directly or indirectly contracted for, pleadings. See also the decision on a or taken, or reserved, the plaintiff former appeal of the case in (1889) 25 shall only recover the principal, withNeb. 473, 41 N. W. 387. The decision out interest, and the defendant shall in Eiseman v. Gallagher (Neb.) supra, recover costs. The court having is also recognized, obiter, in Frenzer found that the note made by Brewster v. Richards (1900) 60 Neb. 131, 82 to the bank on the 9th of October, N. W. 317, wherein the court said: 1891, was tainted with usury, the bank, “It has been frequently held in other then, could only recover the actual jurisdictions, and it is the law of this amount of money which it loaned state (Eiseman v. Gallagher (Neb.) Brewster on said note, and from that supra), that a borrower will not be amount should have been deducted all given affirmative relief against the payments of interest which he had lender, in a court of equity, unless he made on the note, together with any has first paid or tendered the amount credits to which the note was entitled of the loan with legal interest. These by reason of collections made of decisions are grounded on the maxim collateral notes, and the judgment that he who seeks equity must do should have been only for that amount, equity.” However, in Brewster v. and would have drawn interest at the Bank of Ainsworth (1894) 43 Neb. 79, rate of 7 per cent per annum; but the 61 N. W. 94, an action in equity to bank was not entitled to any rate of

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interest whatever on the amount of the mortgagee the money received on money it had loaned Brewster on that the note. Long v. Greene County note. The judgment of the district Abstract & Loan Co. (1913) 252 Mo. court is reversed and the case re- 158, 158 S. W. 305. Under a Missouri manded.”

statute, however, it appears that a Under a Massachusetts statute de- debtor who has pledged or mortgaged claring to be void a loan of less than a security, or other personal property, $300 at a higher rate of interest than to secure a debt tainted with usury, 12 per cent per annum, and expressly may recover such personal property in granting a remedy in equity for a equity as well as at law, without violation of the statute, it has been tendering either the principal of the held that a borrower may bring a bill debt or legal interest thereon. Lyons for an accounting under the statute, v. Smith (1905) 111 Mo. App. 272, 86 without offering to pay to the lender S. W. 918; Henderson Tolman any amount which might be found due (1908) 130 Mo. App. 498, 109 S. W. 76; to him. Thomas v. Burnce (1916) 223 Smith v. Becker (1916) 192 Mo. App. Mass. 311, 111 N. E. 871. A decree 597, 184 S. W. 943. In the case last of the trial court in that case, sustain- cited the court said, in holding that ing a demurrer to the bill, was re- an assignee of a pledgeor of certain versed, but the court pointed out that shares of stock to secure a usurious at the hearing the lender might be loan was entitled to have the pledgee entitled to a decree for so much of the declared a trustee of the stock for the loan as was not in violation of the assignee: "It is urged that the plainstatute. The decision, therefore, is tiff's case is fatally defective because merely to the effect that a bill for an the petition contains no offer to reaccounting which alleges that the deem, or tender of the debt due. (It defendant has made a usurious loan may be observed here that Cox testito the plaintiff is not demurrable be- fied that at the end of the fifteen days cause it does not contain an offer to

he got a short extension of time by the pay either the principal of the loan or payment of $5, and at the end of the legal interest thereon. In Hart v. extension he offered Becker the amount Goldsmith (1861) 1 Allen (Mass.) 145, due him, but that Becker refused to an earlier Massachusetts decision con- accept it. It is also in evidence that struing a statute which permitted a the plaintiff, through his attorney, debtor to recover three times the

tendered Becker the amount due before amount of usurious interest, either by this suit was brought, but this was an action at law or in equity, it was also refused.) The contract shows on held that a mortgagor, in redeeming its face that $10 interest was conproperty from a mortgage securing a

tracted for, and exacted, for the loan usurious obligation, was entitled to a of $100 for fifteen days. This is condeduction of the statutory forfeiture cededly usurious if the transaction in determining the amount due to the

was a loan. The transaction being, as mortgagee.

we have seen, a pledge for a loan, what In a Washington case it has been

is the effect of such usurious transheld that a person coming into equity

action? Section 7184, Revised Statfor relief against a usurious contract

utes 1909, provides that in actions to was bound to offer at least what he received under the contract. Cuddy

secure possession of property pledged v. Sturtevant (1920) 111 Wash. 304,

to secure indebtedness, for in any 190 Pac. 909. But whether a tender

other case where the validity of such of legal interest was required, the

lien is drawn in question, proof upon court did not decide, as that question

the trial that the party holding or was not presented.

claiming to hold such lien has reIn Missouri, likewise, it has been ceived or exacted usurious interest for held that a mortgagor is not entitled such indebtedness, shall render any to the cancelation of a usurious note mortgage or pledge of personal propand mortgage, without tendering to erty, or any lien whatsoever thereon given to secure such indebtedness, in- gage lien. Moreover, the court held valid and illegal.' By force of this in Henderson v. Tolman (1908) 130 statute, the pledge of the stock is void. Mo. App. 498, 109 S. W. 76, on the The pledgee has no lien upon the ground that an assignment of wages property covered by the void pledge, to secure a debt was in the nature of and is not entitled to the possession a chattel mortgage, that a person asof the stock. The right of possession signing his wages to secure a loan is in the owner without the condition tainted with usury was entitled to of paying the amount borrowed... have the assignment canceled by a The same reasoning applies with equal court of equity, without tendering force to the point that plaintiff must even the principal sum borrowed. The do, or offer to do, equity, before he is court made the following explanation: entitled to any relief in this case, and “Plaintiff is not asking to have his that, as plaintiff has not offered to do promise to pay back the borrowed this in his petition, his action must money canceled. He is not asking the fail. But to require this of plaintiff court to rid him of the debt which he is, in effect, to ignore and override owes. He is merely asking that a sep§ 7184." Likewise, in Lyons v. Smith arate instrument, void and illegal, (Mo.) supra, it was held that a re- which has been taken to secure not ceiver was not bound to tender either only the valid promise, but also the the principal or interest of a debt usurious promise, be set aside.

We tainted with usury, in order to have are of the opinion that a tender of the the proceeds from personal property principal sum borrowed is not necesmortgaged to secure the debt declared sary as a condition to having that by a decree to be free from the mort- done."

W. S. R.





Massachusetts Supreme Judicial Court - May 31, 1921.

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Innkeeper — contract rights of guest.

1. The contract of a guest in an inn includes the right to immunity from rudeness, personal abuse, and unjustifiable interference of the innkeeper, his servants, or persons acting under his control.

[See note on this question beginning on page 139.] Trial instruction materiality. or not police officers taken by an inn

2. In an action by a registered guest keeper into the room of a guest were in an inn for assault and insults by there in the exercise of their lawful the innkeeper, requested instructions duty, or whether the innkeeper was rebased on the right of the innkeeper in

sponsible for their acts. case of unregistered guests are immaterial.

Innkeeper - right to intrude on guest. [See 2 R. C. L. 261.]

4. An innkeeper cannot intrude upon – question for jury — acts of police the privacy of a duly registered guest officers.

who has been assigned to a room in the 3. The jury must determine whether inn.

(- Ma88. 131 N. E. 475.) – right of guest to room.

Damages — injury to feelings of guest 5. A duly registered guest in an inn, in inn. who has been assigned to a room, has 9. A guest abused and insulted by a right of occupation for all lawful the innkeeper may recover damages purposes until vacated, subject only to for injury to his feelings resulting the access of the innkeeper, at reason- from the humiliation to which he has able times and in a proper manner, in been subjected. the general management of the inn or

[See 14 R. C. L. 506.] upon the happening of some unanticipated controlling emergency.

Innkeeper - liability for false impris. (See 14 R. C. L. 504.]

onment of guest. - liability for coercion and insult. 10. An innkeeper is liable in dam

6. An innkeeper, who, without suffi- ages for unlawfully restraining a guest cient reason or previous notice or re- of his liberty, or inciting, encouraging, quest for departure, enters the room of or countenancing the presence and a guest for the purpose of compelling acts of police officers in the guest's him to vacate, is liable to him in dam

room for the purpose of investigating ages if excessive force, coercion, or alleged unlawful conduct on the part intimidation is used, or his conduct

of the guest. toward the guest is abusive, insulting, and wanting in ordinary respect and mistake with respect to records. decency.

11. A mistake by an innkeeper or [See 14 R. C. L. 506.]

his servant with respect to his records Appeal -- sufficiency of instruction. does not justify his mistreatment and

7. Instructions not appearing in the insulting of a guest into whose room record will, as against the excepting he enters to eject him. party, be presumed to be correct and sufficient.

- charging guest with crime. Innkeeper – guest's right to civil

12. An innkeeper violates his contreatment.

tract duty to his guest by uttering in8. A contract of a guest in an inn criminating words against him in the creates the implied obligation that presence of servants and police officers. neither the innkeeper nor his servants

Action contract will abuse or insult him, or engage in

scope of recoyany conduct or speech which may un

ery. reasonably subject him to physical

13. A guest in a hotel, abused and discomfort or distress of mind, or im

insulted by the hotel keeper, may reperil his safety.

cover in an action for breach of con[See 14 R. C. L. 506, 507.]

tract as fully as if he sued in tort.

EXCEPTIONS by defendant to rulings of the Superior Court for Suffolk County (Hall, J.), made during the trial of actions brought to recover damages for alleged assault and insults by defendant, which resulted in verdicts for plaintiffs. Overruled.

The facts are stated in the opinion of the court. Messrs. T. J. Barry, Elijah Adlow, sistent wrong was due to mistake, and and C. S. Hill for defendant.

a broad denial that his conduct was Messrs. Eaton & McKnight and not malicious. Robert G. Wilson, Jr., for plaintiffs : Cooper v. Johnson, 81 Mo. 483; Com.

Whenever it appears that the plain- v. Bonner, 9 Met. 410; Parkhurst v. tiff has been actually restrained with- Ketchum, 6 Allen, 406, 83 Am. Dec. out legal authority for an appreciable 639; Curtis v. Mussey, 6 Gray, 261; time, however short, a cause of false Clark v. Brown, 116 Mass. 504; Brickimprisonment is made out.

ett v. Davis, 21 Pick. 404; Kennedy v. Sweet v. Kimball, 166 Mass. 332, 55 Favor, 14 Gray, 200; Com. ex rel. Am. St. Rep. 406, 44 N. E. 243; Phil- Parker v. Certain Lottery Tickets, 5 lips v. Fadden, 125 Mass. 198; New- Cush. 369; Cody v. Adams, 7 Gray, 59; buryport v. Fidelity Mut. L. Ins. Co. Phillips v. Fadden, 125 Mass. 198. 197 Mass. 600, 84 N. E. 1111.

An officer, even with a warrant, must The defendant cannot evade liability first demand entrance and explain his for his acts on any plea that his per- request.

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