est thereon, as a condition of equitable relief against a usurious loan. Rexford v. Widger (1848) 2 N. Y. 131 (holding a subsequent mortgagee of property mortgaged by a borrower not a "borrower"); Schermerhorn v. Talman (1856) 14 N. Y. 93 (holding original mortgagor to have lost his status as "borrower" by selling the equity of redemption); Allerton v. Belden (1872) 49 N. Y. 373 (holding a surety of the principal debtor not a "borrower"); Wheelock v. Lee (1876) 64 N. Y. 242 (holding an assignee in bankruptcy of the borrower not within the statute); Buckingham v. Corning (1883) 91 N. Y. 525 (holding an heir or devisee of the borrower not a "borrower"); Post v. Bank of Utica (1844) 7 Hill (N. Y.) 391 (holding a grantee of a mortgagor not within the statute); Slosson v. Duff (1847) 1 Barb. (N. Y.) 432 (holding a subsequent lienor of property mortgaged by a borrower not within the statute); Marsh v. House (1878) 13 Hun (N. Y.) 126 (holding an heir or devisee of the borrower not a "borrower"); Wright v. Clapp (1882) 28 Hun (N. Y.) 7 (holding an assignee for creditors of a borrower not a "borrower"); O'Brien v. Ferguson (1885) 37 Hun (N. Y.) 368 (holding a grantee of a mortgagor not a "borrower"); Re Fishel (1912) 117 C. C. A. 224, 198 Fed. 464, appeal dismissed per stipulation in (1914) 235 U. S. 712, 59 L. ed. 437, 35 Sup. Ct. Rep. 202 (holding a trustee in bankruptcy of the borrower not within the statute).

And it has been held that the statute does not require the surrender of a usurious bond, secured by a mortgage on New York real estate, without a tender of the principal and legal interest, where relief is sought in a court of equity in another state. Matthews v. Warner (1881) 6 Fed. 461, affirmed in (1884) 112 U. S. 600, 28 L. ed. 851, 5 Sup. Ct. Rep. 312.

Under an Arkansas statute similar to that in New York, it has been held that one who executes notes tainted with usury is entitled in a court of equity, without tendering any part of the principal of the notes, or interest thereon, to recover the possession of

land which is held by the payee and his grantee as security for the notes. Lowe v. Loomis (1890) 53 Ark. 454, 14 S. W. 674.

IV. Jurisdictions in which law is unsettled.

In several jurisdictions the law as to the tender prerequisite to equitable relief against a usurious contract does not appear to be definitely settled.

Under the earlier Mississippi decisions, a debtor was obliged to tender only the principal of a usurious debt to obtain relief in equity, where there were special circumstances which justified a resort to equity in the first instance. Thus, in Parchman v. McKinney (1849) 12 Smedes & M. (Miss.) 631, an action to have canceled a trust deed and usurious notes secured thereby, and to enjoin a sale under the deed, it was held to be error to charge the maker of the notes with legal interest in addition to the principal. See to the same effect, the following cases, wherein the facts and the relief prayed appear to be substantially the same as in the earlier case: Norcum v. Lum (1857) 33 Miss. 299; Long v. McGregor (1887) 65 Miss. 70, 3 So. 240. However, in American Freehold Land & Mortg. Co. v. Jefferson (1892) 69 Miss. 770, 30 Am. St. Rep. 587, 12 So. 464, it was held that the makers of certain notes bearing usurious interest and secured by a trust deed could not maintain a bill which was brought to enjoin a sale under the deed, to have an accounting, and to have the securi-" ties canceled, without offering to pay. the principal of the notes and legal interest. In effect the decision appears to overrule the earlier Mississippi cases, though a distinction was suggested on the ground that in the previous cases the point was not made by demurrer that the complainants. had not offered to do equity, as was done in the principal case. The court said: "In none of the cases above noted, arising under our Usury Statutes, was the point made by demurrer that the complainants had not offered to do equity. As we have said, the questions were raised on appeal from final decrees on the merits." It must

be noted, however, that in Long v. McGregor (1887) 65 Miss. 70, 3 So. 240, a demurrer was interposed, stating that the complainants did not offer to pay legal interest, though the case was heard on bill, answer, and proof, after the demurrer was overruled. Whether the appeal to the supreme court was based in part on the overruling of the demurrer, or on the decree of the lower court alone, is not clearly indicated by the report of the case. In Deans v. Robertson (1886) 64 Miss. 195, 1 So. 159, it was held that, where the maker of usurious notes offered to pay neither principal nor legal interest, he was not entitled to equitable relief. His bill to enjoin a sale under a trust deed securing the notes, and to have the securities can. celed, was therefore held to be demurrable.

In Nebraska, also, there appears to be a conflict in the decisions as to whether legal interest on a debt tainted with usury must be tendered as a condition of equitable relief. In Eiseman v. Gallagher (1888) 24 Neb. 79, 37 N. W. 941, it was held that a mortgagor was not entitled to redeem mortgaged property without tendering the principal and legal interest on a usurious obligation secured by the mortgage. There is a dictum to the same effect in Wilhelmson v. Bentley (1889) 27 Neb. 658, 43 N. W. 397, though the point was not raised by the pleadings. See also the decision on a former appeal of the case in (1889) 25 Neb. 473, 41 N. W. 387. The decision in Eiseman v. Gallagher (Neb.) supra, is also recognized, obiter, in Frenzer v. Richards (1900) 60 Neb. 131, 82 N. W. 317, wherein the court said: "It has been frequently held in other jurisdictions, and it is the law of this. state (Eiseman v. Gallagher (Neb.) supra), that a borrower will not be given affirmative relief against the lender, in a court of equity, unless he has first paid or tendered the amount of the loan with legal interest. These decisions are grounded on the maxim that he who seeks equity must do equity." However, in Brewster v. Bank of Ainsworth (1894) 43 Neb. 79, 61 N. W. 94, an action in equity to

enjoin the collection of certain notes and to have them surrendered and canceled, it was held that as to one of the notes, which was tainted with usury, the principal only should have been required as a condition of the relief sought. The court said: "There remains, then, only the question of the correctness of the decree of the court as to the amount which he found due to the bank from Brewster on the note dated October 9, 1891. The court found that there was still due the bank from Brewster on this note $405.90, but the court recites in its decree that, notwithstanding this latter note was usurious, as it drew 2 per cent a month, he found and decreed that the bank was entitled to recover the amount of the note, $498.10, and 7 per cent interest thereon from the date of the note to the date of the decree, deducting from that amount the interest payments made on the note by Brewster, and credits made on the note by the bank from the proceeds of the collateral notes. In this the learned district court was in error. Section 5, chapter 44, Compiled Statutes 1893, provides: 'If a greater rate of interest than is hereinbefore allowed [10 per cent per annum] shall be contracted for or received or reserved, the contract shall not, therefore, be void; but if in any action on such contract proof be made that illegal interest has been directly or indirectly contracted for, or taken, or reserved, the plaintiff shall only recover the principal, without interest, and the defendant shall recover costs.' The court having found that the note made by Brewster to the bank on the 9th of October, 1891, was tainted with usury, the bank, then, could only recover the actual amount of money which it loaned Brewster on said note, and from that amount should have been deducted all payments of interest which he had made on the note, together with any credits to which the note was entitled by reason of collections made of collateral notes, and the judgment should have been only for that amount, and would have drawn interest at the rate of 7 per cent per annum; but the bank was not entitled to any rate of

interest whatever on the amount of money it had loaned Brewster on that note. The judgment of the district court is reversed and the case remanded."

Under a Massachusetts statute declaring to be void a loan of less than $300 at a higher rate of interest than 12 per cent per annum, and expressly granting a remedy in equity for a violation of the statute, it has been held that a borrower may bring a bill for an accounting under the statute, without offering to pay to the lender any amount which might be found due to him. Thomas v. Burnce (1916) 223 Mass. 311, 111 N. E. 871. A decree of the trial court in that case, sustaining a demurrer to the bill, was reversed, but the court pointed out that at the hearing the lender might be entitled to a decree for so much of the loan as was not in violation of the statute. The decision, therefore, is merely to the effect that a bill for an accounting which alleges that the defendant has made a usurious loan to the plaintiff is not demurrable because it does not contain an offer to pay either the principal of the loan or legal interest thereon. In Hart v. Goldsmith (1861) 1 Allen (Mass.) 145, an earlier Massachusetts decision construing a statute which permitted a debtor to recover three times the amount of usurious interest, either by an action at law or in equity, it was held that a mortgagor, in redeeming property from a mortgage securing a usurious obligation, was entitled to a deduction of the statutory forfeiture in determining the amount due to the mortgagee.

In a Washington case it has been held that a person coming into equity for relief against a usurious contract was bound to offer at least what he received under the contract. Cuddy v. Sturtevant (1920) 111 Wash. 304, 190 Pac. 909. But whether a tender of legal interest was required, the court did not decide, as that question was not presented.

In Missouri, likewise, it has been held that a mortgagor is not entitled to the cancelation of a usurious note and mortgage, without tendering to

the mortgagee the money received on the note. Long v. Greene County Abstract & Loan Co. (1913) 252 Mo. 158, 158 S. W. 305. Under a Missouri statute, however, it appears that a debtor who has pledged or mortgaged a security, or other personal property, to secure a debt tainted with usury, may recover such personal property in equity as well as at law, without tendering either the principal of the debt or legal interest thereon. Lyons v. Smith (1905) 111 Mo. App. 272, 86 S. W. 918; Henderson V. Tolman (1908) 130 Mo. App. 498, 109 S. W. 76; Smith v. Becker (1916) 192 Mo. App. 597, 184 S. W. 943. In the case last cited the court said, in holding that an assignee of a pledgeor of certain shares of stock to secure a usurious loan was entitled to have the pledgee declared a trustee of the stock for the assignee: "It is urged that the plaintiff's case is fatally defective because the petition contains no offer to redeem, or tender of the debt due. (It may be observed here that Cox testified that at the end of the fifteen days he got a short extension of time by the payment of $5, and at the end of the extension he offered Becker the amount due him, but that Becker refused to accept it. It is also in evidence that the plaintiff, through his attorney, tendered Becker the amount due before this suit was brought, but this was also refused.) The contract shows on its face that $10 interest was contracted for, and exacted, for the loan of $100 for fifteen days. This is concededly usurious if the transaction was a loan. The transaction being, as we have seen, a pledge for a loan, what is the effect of such usurious transaction? Section 7184, Revised Statutes 1909, provides that in actions to secure possession of property pledged to secure indebtedness, 'or in any other case where the validity of such lien is drawn in question, proof upon the trial that the party holding or claiming to hold such lien has received or exacted usurious interest for such indebtedness, shall render any mortgage or pledge of personal property, or any lien whatsoever thereon

given to secure such indebtedness, invalid and illegal.' By force of this statute, the pledge of the stock is void. The pledgee has no lien upon the property covered by the void pledge, and is not entitled to the possession of the stock. The right of possession is in the owner without the condition of paying the amount borrowed. . . . The same reasoning applies with equal force to the point that plaintiff must do, or offer to do, equity, before he is entitled to any relief in this case, and that, as plaintiff has not offered to do this in his petition, his action must fail. But to require this of plaintiff is, in effect, to ignore and override § 7184." Likewise, in Lyons v. Smith (Mo.) supra, it was held that a receiver was not bound to tender either the principal or interest of a debt tainted with usury, in order to have the proceeds from personal property mortgaged to secure the debt declared by a decree to be free from the mort

gage lien. Moreover, the court held in Henderson v. Tolman (1908) 130 Mo. App. 498, 109 S. W. 76, on the ground that an assignment of wages to secure a debt was in the nature of a chattel mortgage, that a person assigning his wages to secure a loan tainted with usury was entitled to have the assignment canceled by a court of equity, without tendering even the principal sum borrowed. The court made the following explanation: "Plaintiff is not asking to have his promise to pay back the borrowed money canceled. He is not asking the court to rid him of the debt which he owes. He is merely asking that a separate instrument, void and illegal, which has been taken to secure not only the valid promise, but also the usurious promise, be set aside. We are of the opinion that a tender of the principal sum borrowed is not necessary as a condition to having that done." W. S. R.

V.

(- Mass.

Innkeeper contract rights of guest.

- right of guest to room.

5. A duly registered guest in an inn, who has been assigned to a room, has a right of occupation for all lawful purposes until vacated, subject only to the access of the innkeeper, at reasonable times and in proper manner, in the general management of the inn or upon the happening of some unanticipated controlling emergency.

[See 14 R. C. L. 504.]

- liability for coercion and insult.

6. An innkeeper, who, without sufficient reason or previous notice or request for departure, enters the room of a guest for the purpose of compelling him to vacate, is liable to him in damages if excessive force, coercion, or intimidation is used, or his conduct toward the guest is abusive, insulting, and wanting in ordinary respect and decency.

[See 14 R. C. L. 506.]

Appeal sufficiency of instruction.

The facts are stated in the opinion Messrs. T. J. Barry, Elijah Adlow, and C. S. Hill for defendant.

Messrs. Eaton & McKnight and Robert G. Wilson, Jr., for plaintiffs:

Whenever it appears that the plaintiff has been actually restrained without legal authority for an appreciable time, however short, a cause of false imprisonment is made out.

Sweet v. Kimball, 166 Mass. 332, 55 Am. St. Rep. 406, 44 N. E. 243; Phillips v. Fadden, 125 Mass. 198; Newburyport v. Fidelity Mut. L. Ins. Co. 197 Mass. 600, 84 N. E. 1111.

The defendant cannot evade liability for his acts on any plea that his per

of the court.

sistent wrong was due to mistake, and a broad denial that his conduct was not malicious.

Cooper v. Johnson, 81 Mo. 483; Com. v. Bonner, 9 Met. 410; Parkhurst v. Ketchum, 6 Allen, 406, 83 Am. Dec. 639; Curtis v. Mussey, 6 Gray, 261; Clark v. Brown, 116 Mass. 504; Brickett v. Davis, 21 Pick. 404; Kennedy v. Favor, 14 Gray, 200; Com. ex rel. Parker v. Certain Lottery Tickets, 5 Cush. 369; Cody v. Adams, 7 Gray, 59; Phillips v. Fadden, 125 Mass. 198.

An officer, even with a warrant, must first demand entrance and explain his request.