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neglected to pay it to the plaintiff, and was thereby subject to damages at the rate of twelve per cent. per annum, having lent the money thus collected to a third person at the same rate of interest, was held guilty of usury, and liable to the penalty by the act of 1741. Dowell v. Vannoy, 3 Dev. 43.

It seems that an agent who lends money at an usurious rate of interest is liable to the penalty, notwithstanding he discloses his character. Ibid.

In an action to recover the penalty given by the statute against usury, it is not necessary to show that the principal money had been paid. The offence is complete when any thing is secured for the forbearance over and above the rate of six per cent. per year.

v. Schomburger, 2 Murphy, 200.

Seawell

Where an usurious agreement is made in this state, but the illegal interest is secured in South Carolina, an action will not lie for the penalty. Graham v. Lewin, N. C. Term Rep. 189.

Action of debt on the statute of usury: Pleas general issue and statute of limitations: Motion by plaintiff to amend the pleadings by replying to the statute of limitations, " a former suit between the same parties, and a new suit therein, and that this action was brought within a year and a day thereafter," Motion disallowed; for, 1st The amendment, if allowed, would be unavailing. The statute limiting penal actions contains no such saving as the plaintiff wishes to reply, nor a saving of any description. 2d. The nature of this action forbids the amendment. This was no man's particular cause of action until brought. It became his by the suit, and he lost it by the dismission. It then became common, and liable to be brought by any person. If brought by a stranger, it was a new suit; so if brought by the same person. It was not a continuance of his old suit, for it was his no longer than it depended. Clark v. Rutherford, 3 Murphy, 237.

In debt qui tam, under the statute of usury, the plaintiff may recover less than he declares for, and the verdict shall be good. Dozier v. Bray, 2 Hawks, 57.

The payment of the usurious interest to the sheriff on an execution, or to an assignee, and much more to an agent, completes the offence. Dowell v. Vannoy, 3 Dev. 43.

A return by a sheriff of satisfaction to an execution issued on a judgment for a debt infected with usury, is not sufficient evidence of the receipt of the usurious interest to charge the lender in an action for the penalty. It must be shown that the lender has actually received the usurious interest. Wright v. McGibbony, 2 Dev. & Bat. 474.

In a suit in the name of common informer to recover the penalty in the statute against usury, it must appear that the payment of money, or other thing sought to be recovered, was a voluntary payment, and made in pursuance of a previous corrupt agreement,

A decree of the county court, in an action of ejectment predicated on mortgage, even after it becomes absolute, and so the debt is paid, does not constitute such payment as will enable the mortgagor or a common informer to recover the excess of lawful interest included in such decree.

By such decree it would seem that the usury is purged, and no subsequent proceedings can be had whereby the question of usury shall be again brought into discussion. If the contracting party never had a right of recovery under that statute, no action can accrue to a common informer. Steward v. Downer, 8 Vermont, 320.

To entitle one to a moiety of the penalty for usury, it must appear on the record, that he prosecuted, complained, or sued for it, and this within a year after the offence committed. The offence of usury is completed, if more than legal interest be paid at the time of the loan, whether the principal sum be ever repaid or not. If the lender on usury acts as agent for another, this will be no excuse for him, especially if he does not disclose the fact at the time of the transaction. Commonwealth v. Frost, 5 Mass. 53. :

Where a person has two demands upon another, one arising out of a lawful contract, the other out of a contract forbidden by law, and the debtor makes a payment which is not specifically appropriated by either party at the time of the payment, the law will appropriate it to the debt recognized by law; and therefore, where distinct sums of money were due, one for goods sold, the other for money lent on an usurious contract, and a payment was made which was not specifically appropriated to either debt by debtor or creditor, it was held that the law would afterwards appropriate such payment to the debt for goods sold. Where a bill of exchange was given for the principal money lent, and interest to become due on a usurious contract, and before the bill became due the lender advanced a further sum of money on the general credit of the borrower, which enabled the latter to pay the bill; it was held, that the payment of the usurious interest was complete as soon as the bill was paid. Wright v. Laing, 3 Barn. & Cres. 165.

In an action brought to recover penalties under the statute of usury, it appeared that the contract was made in one county and the money paid in another; the venue was laid in the county where the contract

was made. Held, that it ought to have been laid where the usurious interest was received. Pierson v. McCouran, 3 Barn. & Cres. 700.

In January, 1827, A paid C a premium, in consideration of his having agreed to continue to A on loan for one year a sum of £5,000, at five per cent. interest, payable half yearly, on the 8th of March and the 8th of September. The half year's interest, at the rate of five per cent., on the 8th of March was paid to C. Held, that C having then taken, accepted, and received more than five per cent. for the forbearance of £5,000 for half a year, the offence of usury was then complete, and that C did not commit a second offence, by reason of his having received on the 8th of September another half year's interest of five per cent. Wood v. Greenwood, 10 Barn. & Cres. 689. A borrower who has paid more than the legal rate of interest, is not confined to the remedy given by the statute to prevent usury, but may bring an action of assumpsit for money had and received to his use, at common law, to recover the excess of interest; but to entitle him to maintain the action, he must show that he has paid, or offered to pay, all the principal lent with the lawful interest. Wheaton v. Hibbard, 20 J. R. 290.

And where, in such action, the lender does not raise the objection at the trial that the principal and legal interest have not been paid, but rests his defence on other and different grounds, the fact of payment will be intended from his silence, and he cannot afterwards make the objection on appeal or in error. Ibid.

In an action qui tam, by a common informer, under the second section of the act, the declaration must state that the party aggrieved neglected to sue within one year, in order to give the plaintiff a right of action. Morrel v. Fuller, 7 J. R. 402.

The general form of déclaring mentioned in the act is given to the borrower only; but the common informer must set forth his cause of action specially, and state the usury. S. C. 8 J. R. 218.

PART SECOND.

CHAPTER I.

IN THIS CHAPTER IT IS INTENDED TO GIVE THE STATUTES AGAINST USURY, NOW IN FORCE, IN DETAIL.

SECTION 1.

A bill against usury. 37 Henry VIII. chap. 9.

WHERE before this time divers and sundry acts statutes and laws have been ordained had and made within this realm, for the avoiding and punishment of usury, being a thing unlawful, and of other corrupt bargains shifts and chevisances, which acts statutes and laws been so obscure and dark in sentences words and terms, and upon the same so many doubts ambiguities and questions have arisen and grown, and the same acts statutes and laws been of so little force or effect, that by reason thereof little or no punishment hath ensued to the offenders of the same, but rather hath encouraged them to use the same. For reformation whereof be it enacted by the King our Sovereign Lord by the assent of the Lords spiritual and temporal and of the commons in this present parliament assembled and by the authority of the same, that all and every the said acts statutes and laws heretofore made of for or concerning usury shifts corrupt bargains and chevisances and every of them, and all pains forfeitures and penalties concerning the same and every part thereof shall from henceforth be utterly void and of none effect to all intents constructions and purposes.

II. And be it further enacted by the authority aforesaid, That no person or persons of what estate degree or condition soever he or they

be, from and after the last day of January next coming shall by himself factor attorney servant or deputy sell his merchandizes or wares to any person or persons, and within three months next after by himself factor attorney deputy or by any other person or persons to his use and behoof, buy the same merchandizes or wares or any part or parcel thereof upon a lower price, knowing them to be the same wares or merchandizes, that he before did so bargain and sell, upon the pains and forfeitures hereafter limited in this estatute.

III. And be it also enacted by the same authority, That no person or persons of what estate degree quality or condition soever he or they be at any time after the said last day of January next coming by way or mean of any-corrupt bargain lone eschange chevisance shift interest of any wares merchandizes or other thing or things whatsoever, or by any other corrupt or deceitful way or mean or by any covin engin or deceitful way or conveyance shall have receive accept or take in lucre or gains for the forbearing or giving day of payment of one whole year of and for his or their money or other things, that shall be due for the same wares merchandizes or other thing or things above the sum of ten pound in the hundred, and so after that rate and not above of and for a more or less sum or for a longer or shorter time, and no more or greater gain or sum thereupon to be had upon the pains and forfeitures hereafter in this act mentioned and contained.

IV. And be it further enacted by the authority aforesaid, That if any person or persons at any time after the said last day of January do bargain and sell, or lay to mortgage by any way or mean any manors lands tenements or hereditaments to any person or persons upon con-` dition of payment or non-payment of any sum or sums of money to be had paid or made at any day certain, or before any such day by him, that shall so bargain sell or lay to mortgage the same manors lands tenements or hereditaments, that the same person or persons, to whom any such manors lands tenements or hereditaments shall be so bargained sold or laid to mortgage, shall not by reason thereof have ne take in lucre or gains of the issues revenues and profits of the same manors lands tenements or hereditaments above the sum of ten pound in the hundred for one whole year, and so after the rate abovesaid for a more or lesser sum or for a longer or shorter time, and no more nor otherwise, upon the pains forfeitures and penalties hereafter in this present estatute limited and expressed.

V. And be it further enacted by the authority aforesaid, That if any person or persons, of what estate degree quality or condition soever he or they be, at any time after the said last day of January

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