6 Ind. 113 | Ind. | 1855
Debt on four writings obligatory under seal, dated January 23,1845, one for 100 dollars, due January 23,1846; one for 100 dollars, due January 23, 1847; one for 100 dollars, due January 23, 1848; and one for 387 dollars and 42 cents, due Janmary 23, 1850. These obligations were made by David P, Shook, Peter Shook, and Hezekiah Shook, sen., payable “to the state of Indiana, for the use of the surplus revenue fund of the county of Ripley J They were joint and several, and conditioned for the payment of 7 per cent, interest per annum in advance, from date, with a stipulation that in case of a failure to pay any instalment of interest, the principal should become due and collectable, with all arrearages of interest; and that on failure to pay the principal or interest when due, 5 per cent, damages should be collected on the whole amount, and costs.
The action was brought on the 26th day of March, 1851, against David P. and Peter Shook, the other party being dead. David P. Shook made default. Peter Shook pleaded six pleas, on the second and third of which issues were
The first subject which demands our attention is, the issues of law arising upon the demurrers to the first, fourth, fifth and sixth pleas. The first, being a plea of nil debet, was evidently bad; but the plaintiff in error seeks through it to attack the declaration.
One objection taken to the declaration is, that the suit is brought “for the use of Ripley county,” and “on the relation of the county auditor,” and the case of The State, ex rel., &c. v. Votaw, 8 Blackf. 2, is relied on in support of this objection. It was decided in that case, that the county treasurer was a proper relator, where the action was brought to recover a portion of the surplus revenue to which the county was entitled. We think that decision correct; but it does not follow that no other person could properly become a relator. It was as much the duty of the auditor, by law, to protect and preserve this fund as of the treasurer. R. S. 1843, pp. 251, 252, 253, ss. 97 to 103. We think the board of commissioners, the treasurer, auditor, or any other officer whom the law charged with the duty of protecting and preserving the fund, might properly be a relator, and that the declaration was unobjectionable for the reason alleged.
The statement that the suit was brought “for the use of the surplus revenue fund,” is of no consequence; it might be rejected as surplusage.
Another objection taken to the declaration is, that the breach is insufficient, because it states the action to have accrued upon the non-payment of the annual instalments of interest. It is true the pleader has so laid his breaches; but as this action was not brought until the principal on the last of the several bonds was due, and as there is to each count a breach laid, in which the non-payment of the bond is averred, the defect, if any, is cured.
The declaration is good in substance, and no defects of form can be examined when it is attacked by means of a demurrer to a defective plea.
The fourth plea is actio non, as to 500 dollars of the principal, and all the interest in said bonds mentioned, and all costs, because the said writings obligatory “are usurious, as therein stated,” and the said David P. Shook has paid interest thereon amounting to 500 dollars, before the commencement of this action. The fifth plea is actio non as to 206 dollars and 36 cents of the principal, and all interest and costs, because the said David P. Shook, before the commencement of this suit, paid the plaintiff the said sum of 206 dollars and 36 cents as interest at 7 per cent, per annum on said bonds, which was usurious. The question arising upon the demurrer to these pleas is, whether the bonds set out in the declaration are usurious upon their face. We think they are not. At the time they were made, interest might lawfully be taken upon loans of the surplus revenue, at the rate of 7 per cent, per annum in advance. R. S. 1843, p. 251, s. 95.—Id. 244, s. 36. And the statute fixing the rate of interest generally, and defining the offence of usury, expressly excepts fiom its operation those provisions of law which relate to the loaning of the trust funds of the state. Id. 583, s. 38. The bonds declared on are substantially in the form prescribed by the statute to be taken upon loans; and in the absence of any averment in the pleas that they were made upon any other consideration, the presumption is that they were given for money borrowed from that fund, and, consequently, it was not usury to reserve and take interest upon them at the rate of 7 per cent, per annum in advance.
The sixth plea, which is pleaded to the first, second and third counts only, states that Peter and Hezekiah Shook were sureties for David P. Shook in said bonds; that after they became due, to-wit, on the 23d day of January, 1848, the plaintiff, without the defendant’s knowledge, and against his will, agreed with David P. Shook, the principal, that in consideration that he would pay interest thereon at the rate of 7 per cent, per annum from that day to the 23d day of January, 1849, the plaintiff would give day of payment until the latter date; that (the previous interest having been paid) the said David P. Shook thereupon paid 21 dollars, being 7 per cent, interest in advance, and that thereupon the plaintiff gave day for one year, and until the bringing of this suit, during which time the said David P. Shook became insolvent.
Supposing it competent to allege that the state entered into an agreement of the kind set out in the plea, without the intervention of some agent authorized to make such a contract, which is not pretended, still the plea is defective because it shows no consideration for the supposed agreement for giving day. As we have already shown, the bonds in question drew interest at the rate of 7 per cent, per annum, payable in advance, and, as we understand them, the interest was to be paid annually. It was evidently the intention of the parties that time might be given on these bonds after maturity. The first was due one year after date, the interest payable in advance, and still it contains this stipulation, “that in case of failure to pay any instalment of interest, the said principal shall become due and collectable, together with all arrears of interest; and on failure to pay the principal or interest when due, five per cent, damages on the whole sum shall be collected, and costs.” Now, as this bond was due one year after date, and, as the interest for that year had been already paid, there could be no sense in a stipulation for
The second plea was, that the bonds sued on were executed without any consideration. The third was a, plea of payment. Upon the trial of the issues joined upon these pleas, it appeared in evidence that previous to the date of the said bonds there was a deficiency in the surplus revenue funds of Ripley county, and that the board of commissioners appointed an agent to adjust the matter with David P. Shook, who had been an agent for the loaning of the fund. That Shook denied that the funds were, in his hands, but alleged that they were in the hands of one Walls, who had preceded him in the agency. The agent appointed by the board of commissioners, in settlement of the defalcation, took from David P. Shook the bonds in question, with the other obligors as his sureties, for the amount of the deficiency, and reported his doings to the board of commissioners, who, by an order entered of record, approved the settlement. It further appeared that the interest had been paid annually, at 7 per cent., on the first and last of said bonds, to January 23, 1849, and on the second and third to Jamtary 23, 1850, which payments were properly indorsed by the auditor.
The Circuit Court instructed the jury, at the instance of the plaintiff, among other things, that if they believed from the evidence that the bonds were given in satisfaction of a claim which the state had against David P. Shook, for a balance alleged to have been in his hands, at the time the bonds were made, the plea that the bonds were made without consideration is not sustained.
Under the plea of payment there was no evidence offered, except the indorsements of the payment of interest as they appeared on the bonds. These were excluded from the amount of the verdict, which, so far as that plea is concerned, is for the proper amount.
The amount of the verdict is also complained of. It appears by computation that it includes interest at 7 per cent., and the 5 per cent, damages stipulated for in the bonds. There is no issue upon the record to which any evidence offered would have been applicable, for the purpose of reducing the amount of the verdict; but, supposing the defendant entitled to show, in an action of debt upon specialty, in which interest is sought to be recovered in the form of damages for detention, any matter proper to reduce the amount, we think it is not shown in this case. It appears from the evidence that the bonds were given to settle a defalcation, and they were made in the form required upon loans, to become due at future periods of time, with interest payable annually, and we are to pre
The judgment is affirmed, with 1 per cent, damages and costs.