State v. Tappan

15 N.H. 91 | Superior Court of New Hampshire | 1844

Parker, C. J.

In the first section in the statute of February 12, 1791, to restrain the taking of unlawful interest, it is enacted, that every person who shall upon any contract take and receive, by way or means of any corrupt bargain, loan, exchange, &c. for the forbearing or giving day of payment for one whole year, of and for their money, &c. above the sum of six pounds for the forbearance of one hundred pounds for a year, and so after that rate for a greater or less sum, or for a longer or shorter time, shall forfeit and lose, for every such offence, three times the sum above the lawful interest so taken; one moiety to the use of the prosecutor and the other moiety to the use of the county. 1 N. H. Laws 134.

No mode is prescribed in the act for the recovery of this penalty, unless it should be held that the provision in the second section, for the deduction of three times the amount of the sum unlawfully taken from the sum found lawfully due, in an action upon the contract, was intended as one mode of enforcing the penalty given by the first section ; to which there seems to be the insuperable objection, that by such deduction the penalty is not divided between the prosecutor and the county, but goes wholly to the benefit of the party who paid the usury, and who, although ho may be said to stand in the light of a prosecutor, by claiming the deduction, is not one in the ordinary sense of that term, but is in truth a defendant, making a defence against the recovery of the money, or a part of it, by the plaintiff.

The act of January 28,1790, limiting suits on penal statutes, provides that all actions, suits, bills and informations, which shall be brought or commenced for any forfeiture upon any penal statute, the benefit whereof is or shall be by said statute limited in whole or in part to the person who shall inform and prosecute, shall be brought or commenced by any person that may lawfully pursue the same, within one year from the commission of the offence ; and, in default of such pursuit, then the same shall be brought or prosecuted by the State at any time within two years from the commission of the offence; and that any indictment for any offence against such statute should be found and prosecuted within two years, limited as aforesaid, &c. 1 N. H. Laws 75. A provision to the same effect is incorporated into the Revised Statutes, ch. 211, § 8.

This, although a statute of limitations, recognizes an indictment as a proper mode of prosecution in behalf of the State, in order to enforce penalties of that description, where there is no prosecution instituted by an individual. And see 2 Strange 816 ; Ditto 1234.

Had there been, in the first section of the act of 1791, provisions similar to those in the act of 1790, prescribing the mode of prosecution in cases where usury was taken, and prescribing the limitation, there might have been a question whether, in order to sustain an indictment under the statute, there should not have been an averment that there had not been any suit, &c. by a private prosecutor within the time limited by the act. But as the enactment is in a separate statute, and that statute one of limitation, recognizing the mode of prosecution rather than prescribing it, such an averment seems not to be necessary to the validity of the indictment. If there has been any such prosecution by a private prosecutor, it may be shown in the defence, and the indictment thereby avoided.

The suggestion in the argument, that there has been a deduction in a civil suit upon the contract since the indictment was found, is not supported by the case, and does not seem to furnish a bar, if it had been shown by pleading.

It is not necessary that the corrupt agreement should have been entered into at the time of the contract and execution of the note. A contract to pay more than six per cent, for past forbearance is illegal. 2 N. H. Rep. 333, Willie vs. Green.

The corrupt bargain is sufficiently stated.

The indictment alleges that the defendant unlawfully, unjustly and corruptly did receive, &c. from Sargent the sum of fifteen dollars, by way of corrupt bargain and loan for the use, forbearance, &c. “ In pleading an usurious contract by way of bar to an action, you must set forth the whole matter especially, because it lay within your own privity; but in an information on the statute for making such a contract, it is sufficient to set forth the corrupt bargain generally, because matters of this kind are supposed to be privily transacted, and such information may be brought by a stranger.” 1 Hawk. P. C. ch. 82, § 24.

It was not necessary to aver how much of the fifteen dollars, alleged to have been received, was over and above the lawful interest. The amount can readily be ascertained by computation, and that is sufficient. Id cerium est, &c.

Demurrer overruled.