Taylor v. Cobb, 48 N.C. 138, 3 Jones 138 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 138, 3 Jones 138

JESSE TAYLOR, qui tam vs. ENOCH COBB.

Where the time of forbearance for the loan of money is stated in a qwi iam action for usury, to bo from 31st of March, to the first day of April, in the same year, and the proof that it was-from 15th March to the 1st of April ensuing, the variance is fatal.

This was an action of debt qui torn-to recover a penalty for violating tlie statute of usury, tried before his Honor, Judge Ellis, at the Spring Term, 1855, of Duplin Superior Court.

The allegation in the plaintiff’s declaration was, that the amount loaned and advanced, was so loaned and advanced on the 31st of March, and forborne till the 1st day of April in the same year. There were several counts in the declaration stating the sum loaned differently, the first states it at $600; the second at $500, and the third at $492,98-100.

The evidence was, that there were two executions in the hands of the sheriff, for the aggregate sum of $492,98-100, which defendant agreed to pay off, and it was agreed for so doing he was to have one hundred dollars. The money was paid by defendant on the 15th of March, and on the 31st of the same month the parties met, and a note with surety was given for the amount loaned, including- the money agreed to be paid as usurious interest, payable one day after date.

His Honor instructed the jury on the above facts, “ that there was a material variance between the allegations and the proofs; that it was necessary, in actions like this, that the sum loaned, the time of forbearance, and the interest paid for the forbearance, should be stated with precision, so that the Court may see from the declaration, that the interest taken is more than the legal rate, and all these facts must be proved as alleged. In this case the proofs did not sustain the allegation.” In submission to which the plaintiff took a non-suit, and appealed.

Iieicl, for plaintiff.

W. A. Wright, for defendant.

Battle, J.

In a qui tarn action for usury, the declaration must state precisely, and accurately, the sum lent and'forborne, the time of forbearance, and the excess of interest, “ because these three points- are indispensable to enable the Court to see on the record, that the interest received according to the sum lent, and the time, was at a rate forbidden by laAv; and the proofs must sustain the allegations as laid.” Allen v. Ferguson, 6 Ire. Rep. 17. Hence, it was held in that case, that, as tlie declaration was that the defendant had corruptly taken on 20th of April, 1844, twenty-five dollars usurious interest, on a contract for the forbearance of $175, from 21st of April, 1843, to the said 20th of April, 1844, and the proof was that the usurious interest was taken for the forbearance of $175 from the 21st of April, 1843, to the 21st of April, 1844, there was a fatal variance, though it was for but one day.

In the present case, tlie opinion expressed by his Honor, before whom the cause-was tried, clearly announces the same principles, and shows that the action cannot be sustained. Tlie time of forbearance is stated in all the counts as being from tlie”31st day of March, 1845, to the first day of April, in tlie same year. The testimony shows that the money was advanced on the 15th of March, 1843, and that it was forborne until the first day of April following. The variance between the allegation and the proof, in that particular, is fatal, and the judgment of non-suit must be affirmed.

Per Curiam.

Judgment affirmed.