Pipkin v. Bond, 29 N.C. 118, 7 Ired. 118 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 118, 7 Ired. 118

JOHN D. PIPKIN, QUI. TAM. vs. HENRY BOND.

When a person loaned í¡j!800 at a premium of ¡$80 beyond the lawful interest, , and afterwards took the defendant’s bond for $933 80 being the principal and interest on the $800 loaned and the premium of $80 — and he also gave a separate note for $93 — and the declaration in a qui. tam. action alleged that this $93 was for the usurious interest on a loan of $932 80 cents. Held, that the evidence did not correspond with the declaration, as the usurious interest reserved was for the loan of $800»

Appeal from the Superior Court of Law of Chowan County, at the Fall Term, 1846, his Honor Judge Pearson, presiding.

The action is debt upon the act against usury. It is founded on a loan made by the defendant to one Mc-Nider. There are several counts'in the declaration, and they .vary in stating the days of the contract, the periods •of forbearance, and the days of payment of the usurious interest. But they all agree in one respect; which is, in laying that McNider was' indebted to the defendant in the sum of $932 80, and that it was agreed that for the forbearance of that sum the former should pay to the latter and did pay to him the sum of $93 ; which exceeds the rate 6 per cent.

Upon nil debet the plaintiff gave the following evidence. In February 1836, Bond lent McNider $800, and took his obligation therefor, payable one day after date. At the same time he took a separate obligation for $80, also payable one day after date, as a premium on the loan, over and above the lawful rate of interest. On the 19th of May, 1839, the parties agreed, that McNider should substitute new bonds for the two originals, and the interest that had accrued thereon; and he then gave the defendant his bond for $93, payable one day after date, in lieu of that for $80, and including the interest thereon at 6 per cent., and on the 21st of'May, 1839, he gave the defendant a bond executed by himself and one Pipkin, as his surety, for $932 80, payable one day after date, in lieu of the bond for $800, and ■ including the interest thereon at 6 per cent, up to that time. Oh the 1st day of October, 1841, McNider paid the principal money due on the bond for $93, and the legal interest thereon from May 19th, 1839, up to October 1st, 1841; and then this action was brought.

The defendant, among several objections, took one, that there was a variance between the declaration and evidence ; and the Court being of that opinion, ordered a non-suit, and the plaintiff appealed.

Heath, for the plaintiff.

A. Moore, for the defendant.

Ruffin, C. J.

The evidence does not suppport either count. The declaration is of a debt of $932 80, and that the $93 was to be paid and was paid for the forbearance of that sum; whereas it includes the sum of $80, which was agreed to be paid for the original loan of $806, and the forbearance of this latter sum. The bond for $93, then, was not the price of the forbearance of $932 80, from the time the new securities were given; but part of it, if not the whole, was the price of the past forbearance of the $800 from the time of the loan of that sum up to the giving of the substituted bonds. The plaintiff did not prove the contract as laid in either count, and was therefore properly nonsuited.

Per Curiam. Judgment affirmed.