Wilkes v. Coffield, 10 N.C. 28, 3 Hawks 28 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 28, 3 Hawks 28

Wilkes v. Coffield.

> From Bertie.

A, being in want of money, applied to B. and it was agreed between them, that A. should receive from B. the note of one I.. which he held, and give therefore to B. a bond payable to S. for the sum due on L’s note, with 15 per cent. A. gave his bond accordingly, to S. by whom it was indorsed to the brother of B. in whose name a suit was brought, and judgment recovered, and the money was collected by an execution against A. Held, that A. was guilty of usury, and that it is no defence for a lender on usury, to say that he acted ! as another’s agent, unless he disclose the agency at the time of contracting.

Whether being particeps criminis, such disclosure, at the time would avail him— Qmere ?

This was a qui tarn action on the statute of usury, tried before Badger, Judge. The facts were these: Hunter swore that he applied to the Defendant to borrow money; the Defendant expressed a willingness to lend, but not having the money needed, it was agreed between him and Hunter that H. should take from the Defendant, a note on one Leary, due at that time, payable to William Collield, executor of John Cofiield, deceased, for $ 782 81 j H. was to give for it his bond, with security, payable in six months to E. Slaughter, fora sum sufficient to include in it the amount due on jueary’s note, with 1(5 per cent, thereon. II. executed the bond, with the Plaintiff as his security, for 0967 25, * delivered it to Slaughter, and received from him Leary’s note, according to the agreement made with the Defendant. On the trial, this note appeared to he endorsed in blank by Slaughter.

On the 10th of May, 1820, (the day when Hunter’s note became dutf|*there was due for principal and inter-eston Leary’s w>te 0841 50, which Hunter afterwards received or had the benefit of.

An action was afterwards brought on Hunter’s note in the name of William Coffield, as assignee of Slaughter, and a judgment recovered, execution issued and the Sheriff collected the money.

The Court instructed the Jury, that the contract stated by Hunter, was a corrupt bargaining, within the meaning of the Statute, on which the action was founded ; and that if consummated by the receipt of usurious interest thereon, would entitle the Plaintiff to recover.

And on this subject the Court instructed the Jury, that the Statute was not to ho evaded by the interposition of any forms, nor were they to be blinded by any contrivances to defeat its provisions ; that it was not necessary that the Defendant should himself have received the money, but a receipt by an agent was sufficient; that though the action brought on the note, was in the name of William Coffield, and (hough the money appeared to be collected for him, yet if it was really for the use or benefit of the Defendant, or if the Defendant otherwise received the money on the note, the Plaintiff was entitled to recover. But that if they were satisfied, on examining the evidence, and the inferences they might draw from it, that although the Defendant made, the' contract, as stated by Hunter, yet that in truth and fact, he made it on account of William Coflield, had no personal interest in it; that the suit on the note was not brought for his use, nor the money received by him, nor collected for his benefit, that then the Plaintiff could not recover, as one necessary ingredient would be wanting ° o to complete the usury, that is, a receipt of money on the unjawfui contract.

Verdict for Defendant, new trial refused, judgment and appeal.

Hogg for Appellant.

The cliargefiof the presiding Judge amounts to this :

1st. That if Josiah made a contract without the pre-vióus assent of William, and lent William’s money, and William received the usurious interest ignorantly, yet Josiah incurred no penalty, because he did not, in fact, receive the money.

2nd. That if Josiah, without the knowledge oí* consent of William, did lend the money of William on a usurious agreement, and William.gave a subsequent assent thereto, and received the usury, yet that Josiah is not liable, because he did not, in fact, receive the usury.

Sd. That if Josiah did, with the knowledge of William and by his procurement, make, in his own name, a corrupt agreement to lend William’s’ money, and William did receive the usury, that Josiah did not incur the penalty, because, in fact, he did not receive the usury.

In other words, that lie who enters into a corrupt agreement against the Statute of Usury, may shew in discharge of the offence, that he loaned the money of another, and that the usury was actually received by the other, and that it is immaterial whether the corrupt agreement was made at the command or by the procurement of him who actually receives the usury, or subsequently adopted by him, or whether it he an entirely innocent transaction on his part, imposed on him by the holder of his money.

If in any, or in all of the cases put, it can be shewn that Josiah is liable to the penalty, we are entitled to a new trial.

In the first case, one or the other, or both, must be liable, because in every case of usury under the Statute, where there has been a loan for more than six per cent, and an actual payment and receipt of the usurious interest, there must be a forfeiture. The loan, or what is the same tiling, a forbearance and a receipt, must concur, and that in the same person or persons in law, whatever it may be in fact; there can be no supposable case where the corrupt bargain and receipt can, in law, be considered in distinct persons; and in the case supposed, William is but a blind instrument in Josiah’s hands, to receive the money. As to William, Josiah is an agent to lend the money $ as to the Plaintiff, Josiah is the principal and sole offender. In the second case put, William, by his assent, becomes a party to the offence, but that will not discharge Josiah, who in his own proper person makes the corrupt agreement, and appoints William to receive the money. in misdemeanours there are no agents, all are principals. William cannot be heard to say that lie did not corruptly agree, but that Josiah did ; nor Josiah that he did not receive, but that William did.

The third case put, does not materially differ from the second ; Josiah did, in law, both agree and receive, and should pay the penalty; William also did agree and receive, and both are liable to an action for the forfeiture. If this agency in crime be allowable, suppose that Josiah had received the usurious interest under this contract, and paid it to William before this action, it would not now avail him as a defence, and surely it should aid him. no more, that lie appointed William to receive it.

Upon the charge below, a plain and sure contrivance for evading the Statute may readily be invented. Let a guardian, for instance, lend his ward’s money on usury, and appoint it to be paid to the W'ard after his coming of age, and let the ward so receive it; there is «0 forfeiture according to the charge, for the Judge says, that the contractor is not liable unless he receive; and ^ *s eiiuai,y cei'^a'u that the actual receiver is not liable unless he contract.

These cases put, all pre-suppose that Josiah disclosed his agency to Hunter; but the fact is otherwise, ho dealt as principal and disclosed the agency only on the trial, to defeat the common informer, and this alone is fatal to his defence. An agent must disclose his relative character, or be personally responsible. To support tiie position that it is not the naked receipt, but the receipt on a corrupt loan, to which the law attaches a penalty, were cited. — (1 Saund. R. 295 a, Barclay qui tam v. fValmsley. — 4 East. R. 55.)

To prove that an agent was answerable for his own tortious and criminal acts. (Perkins assignee of Hughes v. Smith, 1 Wilson, 328. Paley on agency, 230, 316.)

That an agent, to bind his principal, must disclose his agency at the time of making the contract. — (Paley 289, et. seq.)

Gaston, contra,

took a distinction between indictment for a crime, and suits for penalties inflicted on its cotn-mLssion, contending, that in the former, the procurer and actor were both guilty; in the latter, the actor only. Our statute of usury, he argued, imposes two penalties on the man who violates it. 1st, that the instrument given to secure the payment of more than six per cent, by way of interest, shall be void ; and 2nd, that the penalty of double the amount, received upon the usurious contract, may be recovered in a qui tam action of debt; that the latter penalty only attaches upon those who “shall take, accept and receive,” any sum of money upon such a contract; that a corrupt bargain was not alone sufficient to render the Defendant liable, blit that he must, in the words of the act, receive the money. — Pollard v. Scholey, (Cro. Eliz. 20, note.) (3 Salk. 390.— 7 Mass. Rep. 361.' — 7 Term Rep. 184. — Saund. 295, a.) That this is a penal statute and must be construed , . ,. 1 strictly •

Taylor, Chief-Justice.

The question presented to the Court, in this case, may be decided by an application of the familiar rule, that in all crimes, under tiie degree of felony, there are no accessories, but that all persons concerned therein, if guilty at all, are principals. This is not an attempt to punish the Defendant for a crime committed by another, but to punish him for an offence imagined, contrived, and partly executed by himself in person, though consummated by another under his direction and appointment. The record distinctly states, that the corrupt agreement was made by the Defendant, and it is evident that it would have been carried through by him to its completion, but for the circumstance, real or feigned, of his not having the money to lend, but only a,note, then in the possession of Slaughter. If this were really the true reason, why he did not lend the money, it shows that he entered fully into the scheme of committing the offence ; and if it was only a pretence, it exhibits a device somewhat awkwardly contrived, and easily penetrated, to evade the statute.

The specific crime then meditated was, that Slaughter should receive tfie note from Hunter, and collect the money wdien due, and that he should also transfer to Hunter, the note then due from Leary. And if the usurious agreement had been thus carried into execution, it would have been impossible to raise a doubt as to the Defendant’s guilt, on Slaughter's receiving the unlawful interest. Slaughter was the Defendant’s agent for the very purpose of committing the crime, and though it was not completed precisely in the manner apparently contemplated, yet the authority given to Slaughter, enabled him to indorse the note to William Coffield, and thereby led to the perpetration of the offence in a different shape.

These circumstances fully warrant an application of the legal maxim that in investing another with a lawful authority, a man may limit it as strictly as he jileases; and if the party authorised do transgress his authority, though it be but in circumstance expressed, it shall be void in the wiiole act. But where a man is author and mover to another to commit an unlawful act, then he shall not excuse himself by circumstance not pursued. Thus, if a man make a letter of attorney to A. to deliver livery and seisin in the capital messuage, and he doth it in another place of the land; or, between the hours of two and three, and he doth it after or before j in these cases, the act of attorney as to execute the estate is void.

But on the other hand, if a man command A. to rob B. on Shooter’s hill, and he doth it on G-add’s Bill 5 or to rob him,on such a day, and he doth it next day ; or to kill B. and he doth it not himself but procureth C. to do it 5 or to kill him by poison, and he doth it by violence ; — in all these cases, notwithstanding the fact be not executed in circumstance, yet he is accessary nevertheless. Mandato, licita recipiunt strictam interpretalion-cm, sed illicita latam et extensam. — (Bacon’s Maxims— Reg. 16.)

A kindred principle is laid down and illustrated by the same great writer; that all crimes have their inception in a corrupt intent, and have their consummation and issuing in some particular fact; which, though it be not the fact at which the intention of the malefactor was levelled, yet the law givoth him no advantage of the error, if another particular ensue of as high a nature. Therefore, if an empoisoned apple be laid in a place to empoison J. S. and J. D. cometli by chance and eateth it, this is murder in the principal that is actor, and yet the malice in in-dividuo was not against J. D.; so if a thief find a door open, and come in by night and rob a house, and be taken with the mainour, and break a door to escape, this is burglary, yet the breaking the door, was without any felonious intent, but it is one entire act. — {Reg. 15.)

These sound and elementary principles of criminal justice, the non-observance of which would derange the harmony of the whole system, and lead to manifold evasions, and a dangerous state of impunity, appear to me to fully justify the view I have taken of this case. They are emphatically just and important in expounding a statute, to escape from the penalties of which, the cupidity of mam-kind is daily inventing colourable pretexts and artful expedients. Without their application, the money lender might make his corrupt bargains, but keeping his funds in another persons hands, refer the borrower to him for the sum wanted, and to secure the repayment by a note, with unlawful interest, which might at once be passed into circulation, for its full value. If, when the money is recovered from the borrower, the lender is deemed innocent, then so far from its being true, as the sages of the law tell us, “that where the real truth is a loan of mdney, the wit of man cannot find a shift to take it out of the statuteit is manifest, that a very simple, and obvious, contrivance would render the law powerless. Like a spider in the centre of its web, ensnaring its prey by distant filaments spun from its own body, the usurer might destroy liis victim, and yet make no other movement than the last fatal one to devour the carcase. There ought, in my opinion, to be a new trial.

Hall, Judge

The case in 5 Mass. Rep. 53, goes the ‘ full length of deciding that it is no excuse for a lender on. usury, that he acts as agent for another, if he does not disclose at the time of lending that he acted in that capacity; and being a particeps criminis, it is doubtful whether such disclosure at that time could avail him.

I concur in the opinion, that the rule for a new trial should be made absolute.

Henderson, Judge, concurred also.