
    *Jeremiah Shelton et al. v. Joseph Gill et al.
    io enjoin a judgment at law, on the ground of illegal interest, the bill must show a tender of the amount equitably due.
    Illegal interest paid, can not be recovered back.
    A stipulation in a warrant of attorney to pay collection fees, in addition to-the principal debt and interest, is against public policy and void.
    This is a bill of chancery, from the county of Pike.
    The bill is filed by the complainants, setting forth a loan of money from the respondent, Joseph Gill, at a rate of interest of ten and twelve per centum per annum, and which the answer shows, from time to time, liquidated and paid, as the time was extended for the' payment of the original loan. The loan was $4,500, for which a bond was executed, with a warrant of attorney to confess a judgment for the amount due, with two and a half per centum, as attorney’s fees, for collection, and on which judgment was rendered for the balance due, nearly $5,000, with two and a half per centum, collecting fee. Execution was issued, and levied on the complainants’ property.
    An injunction was allowed on this bill, and the respondent restrained from the collection of this judgment; and the complainants pray that an'account may be taken of the loan, the amount of interest paid, and the attorney’s fees, and that the respondent be decreed to credit, on the execution, all excess over six per centum, and the attorney’s fees, for which judgment was taken, and for other relief. Gill answered, and the above allegations are substantially admitted.
    Creighton, Greene & Hunter, for complainants, contended:
    That the defendant was entitled to no more than the principal oaned, with legal interest. Bank of Chillicothe v. Swayne et al., 8 Ohio, 257. And, having obtained judgment on *the warrant for a larger amount, a court of chancery should restrain the collection, beyond what was justly due, for principal and interest. That the two and a half per centum, included in the judgment, was clearly illegal, and was so decided, in the State of Ohio v. Taylor and others, 10 Ohio, 378.
    That the defendant having answered, admitting the allegations of the bill, he waived his right to object to the relief claimed, and should have demurred. Rees v. Smith, 1 Ohio, 124. A tender of the amount due is not necessary.
    Le Grand Byington, for defendant:
    The bill must be dismissed, because:
    1. Upon its own showing, the complainants could have adequate remedy at law, by defense to the action before judgment, and, even after judgment, by having it set aside. Critchfield v. Porter, 3 Ohio, 518; The Bank of Mount Pleasant v. McKee, 7 Ohio, 175.
    2. A large amount is admitted to be justly due, which is not tendered, and therefore the complainants have not placed themselves in a position to demand relief.
    3. The interest, claimed to be illegal, was voluntarily paid, with a full understanding of the contract, and, being paid, can not be recovered back.
   Wood, J.

Are the complainants entitled to relief? It seems to us, upon one of the most familiar maxims of equity jurisprudence, the complainants make no case. He who seeks equity, must do equity. The complainants, in this bill, have no averment that they have offered to pay the amount which is admitted to be due, nor do they bring such money into court. Without this allegation, there is no pretense for sustaining this bill. In the many cases of this character, which have been adjudicated ■upon the circuit within the last few years, not one is within our recollection in which the bill has not contained this averment, or been dismissed for the want of it. It is true, in the case of Clark v. Brockway, 6 Ohio, 45, the bill does *not appear, from the report, to have distinctly set forth what has since been required; but that case seems to have rested upon its own peculiar circumstances. The judge who delivered the opinion remarks: “We should have been better satisfied if the complainant had proffered payment of the money due, and, if refused, had brought it into ■court; but the case, admitted by the demurrer, is so strongly marked, and the exactions, for the use of the money, so scandalous, that we are induced, without intending to establish a precedent, to overlook the omission.”

' There is also another objection to sustaining this bill, and equally fatal. The interest, excessive as it was, was paid ; and, whether we place the case upon the ground of an executed contract — or, as one which is against sound morals, or malum prohibitum, and the-parties, therefore, in pari delicto — we know of no principle by which it can be recovered back. And, in analogous cases, it has been repeatedly so held on the circuit, and in this court.

As to the two and a half per centum, attorney’s collection fees, which were included in the judgment, it is equally clear the place for its correction is not on the equity side of this, court. That such agreements are against sound policy, and void, was- decided in the case of the State of Ohio, for the use of the Fund Commissioners, v. Taylor, 10 Ohio, 378. The complainants,-however, have adequate remedy at law. ' The warrant of attorney, in which this two and one-half per cent, is contracted for, forms a part of the record; and the error, if any exist, is apparent on the record, and may be corrected, on motion to set aside the judgment, or by a writ of error. McKee v. Bank of Mount Pleasant, 7 Ohio, 175, pt. 2.

The injunction is dissolved, and bill dismissed. Bill dismissed*  