9 N.C. 57 | N.C. | 1822
Lead Opinion
The verdict shows that the unlawful contract set forth in the declaration had been made, and that the defendant had received the benefit of it usuriously.
It was an action of debt qui tam, upon the statute of usury, in which the sum borrowed was $80, and the penalty claimed in the declaration was $160. The verdict of the jury was for $155, and for this cause the defendant moves in arrest of judgment. The exception was properly overruled; for the distinction is well settled between an action of debt founded upon a specialty or upon a contract and one founded upon a statute giving an uncertain sum by way of penalty.
In the first case the verdict cannot be for a less sum than is demanded, unless it be found that part of the debt was satisfied; but in the latter case the verdict is good, although a less sum than is demanded is found to be due. The statute in this case gives a penalty of double the (58) sum borrowed, and therefore it is a matter of calculation for the jury after the amount of the sum borrowed is proved. It is not to be distinguished from cases arising under the 2d and 3d Ed. VI, for not setting out tithes where the penalty given is treble the value of the tithes, yet the jury may find the value of the tithes substracted to be less than the value alleged in the declaration. Cro. Jac., 498. The judgment must consequently be affirmed.
Addendum
It is not correct to say that in actions of debt the precise sum demanded must be recovered. All that is required is that the contract stated in the declaration should be proven. The common opinion that the sum demanded and no other can be recovered arose from this: this action is most commonly brought on specialties and judgments which show a certain and precise sum due, and there could not *49 well be a different sum recovered without having proven a contract different from the one laid; the effect was taken as the cause of failure; it was the variance between the evidence and the contract stated, and not the verdict of the jury drawn from that evidence. This is abundantly proven in actions of debt, for not setting out tithes, actions of debt upon the usurious loan of goods, and debt upon simple contract. In this case there is no cause for arresting the judgment, nor is there cause for a new trial, for it does not appear that the evidence proved a different cause of action from the one stated in the declaration. For what cause, when the plaintiff proved an usurious loan of $80, the jury did not give him $160, to wit, double the sum loaned, but only $155, I am unable to say; but because the jury have given him less than he is entitled to is no reason that the court or the law should take that from him.
HALL, J., concurred.
PER CURIAM. Affirmed.
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