#### Peter Dowell *qui tam.*&c. *v.*Joel Vannoy.

A sheriff who had collected money upon an execution, and had neglected to pay it to the plaintiff, and was thereby subject to damages at the rate of twelve *per cení*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 imposed by the act of *Í74Í (Jtev.*c. 28).

Beet, upon tlie act of 1741 *(Rev. c.*28) *“*for restraining the taking of excessive usury.”

The writ was in the usual form, but was tested *“*the “ second Monday of September, in the 53d year of our “Independence, A. D. 182” and by a memorandum at the foot, was stated to have issued tlie 12th day of September, 1828.

Tlie defendant pleaded *nil dehet,*and the act of 1808, *(Eev.*c. T4S) limiting the time of bringing penal actions to three years after the canso of action had accrued.

On the trial, before Ms Honor Judge Daniex, at Wilkes, on the spring circuit of 1830, the plaintiff proved, that the defendant, being sheriff of ■Wilkes, had an execution for $>600 against the plaintiff, at the suit of one *Crissman,*returnable to the fall term !825, of Surry Superior Court — that upon this execution the defendant had made but $ 400, which he sent, together with the writ, at the return day, with directions to pay it to *Crissman,*only, upon condition that tlie latter would not amerce him for not making the whole amount of the execution. *Crissman*refused to receive the money upon these terms, and not only amerced the defendant, but took steps to subject him under the act of 1819, *(Eev. c.*1002) to the payment of the sum actually received, together with damages at the rate of 12 *per cent per annum.*The defendant then loaned part of the money he had thus collected, to one *Thurmond,*and took from him the following bond :

“ We, *M. Thurmond,*principal, &c. promise to pay “ to *Joel Vannoy,*three hundred and twelve dollars, forty *“*cents, money lent, to he paid by March Superior “ Court of Surry, 1826 — the same is money collected Yon. IK. .6 *44*“ for C. L. Crissman.*We agree to pay'to *Joel' Vannop, “*^ie Merest which he may be liable to pay for failing *“*to pay the above money into office at September term, «1825, of Surry court. Sept. 15, 1825.”

*T/mrmond*paid the amount of this note, together with interest at tlie rate of 12 *per cent per annum, to*an agent of the defendant, who immediately took the same money, together with the balance due upon the execution, to Surry court-house, and paid it to *Crissman,*with interest at the same rate on g400. At the time of this payment, the defendant was present, and then surrendered to *Thur-mónd*the note above set forth.

Iiis Honor instructed the jury, that although by law the defendant was bound to pay *Crissman*interest upon the money he had collected, and failed to pay over, at the rate of 12 *per cent per annum,*yet that the law which imposed so high a rate of interest upon him, did not authorize him to exact the same of others, and that if the defendant had received more than six *per.cent per annum*of *Thurmond,*they ought to find a verdict for the plaintiff. The jury found, *“*that the defendant does owTe the « sum of g 624, and that the statute of limitation does « not bar.”

A rule for a new trial being discharged, and judgment rendered on the verdict, the defendant appealed.

*Gaston,*for the defendant,

upon the rule for a new trial, contended 1st, that the defendant was only an agent between *Crissman*and *Thurmond;*2d, that the contract between the defendant and *Thurmond,*was only a contract of indemnity, and therefore legal, and cited *Button*v. *Bownham*(Oro. *Elia.*643).

He also moved in arrest of judgment, 1st, because the writ was not *dated;*2d, because the entry of the verdict, “ the statute of limitation does not bar,” was not responsive to the issue, and cited *Comyu’s Big. Pleader S*22.

*Badger,*for the plaintiff,

on the motion for a new trial, cited *Levy*v. *Gn'dsby(3 rHMch*180); and *m the*motion, in arrest of judgment, urged that in a penal action thestarv *45cute-of limitation may be given in evidence undertheplea of *nil debet,*and therefore, that there was no necessity for any response to the special plea.

*B seems>*^ aSr ag-ent, who lends: usurious: rate of-interest,.is liable-notwithstanding character-68

*&*pure contract of.indemnity a. ful claim is not '"thin í*® sta" +nrí» QfrQTnsr lisn

BufRIN, Judge.'

It is argued for the appellant, that the court erred in two respects; The first, in not' leaving it to the jui’y, whether the defendant was notmerely the medium or instrument of *Thurmond,*to pay to *Crissman*the interest to which the latter was entitled, and so *Vannoy*did not receive it for liimselfi The second, that'the con-. tract is not one for usurious interest, as such, but merely for an indemnity, which is lawful; and, at all events, that the character of the transaction ought to have been, left to the jury.

In relation to the first, it may be-observed, in passing,that it is far from, clear, that an agent in lending money, upon an usurious contract, shall be excused, either by the fact of the agency, or by. a disclosure of it. It is a criminal act, and upon principle, it would seem that all, who participate in.it, were liable to its penalties. And altho’ *Crissman-*might properly exact from the defaulting, sheriff the increased interest, given against him by law, he could not, under color of that right, loan the money to a third person, thro’the' instrumentality of" the sheriff, at such greater rate of interest.

But here, there was no such agency. No contract with *Crissman,*direct or indirect, can be- inferred. He gave no assent to the loan to *Thurmond.*He did not know it: and was at the time actually pursuing *Vannoy*by suit for the money. The fact then contradicts the., position assumed.

The force of the second objection depends altogether-upon the sense, in which the term *indemnity*is used; and the fallacy of the argument lies in the equivocal use of that word, How was this a contract of indemnity ? If it be meant, that for a certain sum, *Thurmond*agreed to save harmless *Vannoy*against a doubtful demand of *Crissman,*or one which the parties thought doubtful, it covcrs a case oí mere wager *•,*and in that pomt of view, it is immaterial, whether the demand" to. which the ris*k**46related, Avere one for interest, or for any other cause-But then it must appear upon the obligation, by a fair construction, that such was the nature of the *contract;*or if the contrary there appear, it must be shown, by other proof, that such Avas in fact the agreement, and that the Avriting, as framed,- does not express the truth, and was so framed by mistake — not as to the effect, in law, of the contract as stated, but as to the terms of the agreement itself. No such proof is offered *here;*and the case is left on the bond itself. By the terms of that instrument, the agreement is not shoAvn to haAre been for an indemnity of the kind alluded to ; but on the contrary it is shown, that it was not for such an indemnity. It is express, that the debt is for “money lent,” and that *Thurmond*is to pay “ the interest,51’ which *Vannotj*was liable to pay to *Grissman.*There is nothing Avhich can lead us to suspect, that *Grissman’s*right was doubtful, or that any one of the parties thought it so. - If then an indemnity Avas contemplated, of what sort Avas it ? Simply, that Avhich consists in one person paying to another *as interest upon a loan,*Avhatever *this last had*agreed or Avas bound to pay, as interest, to a third person. The bare stating it thus goes far towards understanding and ansAvering the objection. In such a case, the notion of indemnity cannot give a color to the transaction. The reference to the interest for which *the ohli-*was liable, was only to ascertain that Avhich the ° obligor was to pay. And if the parties thought that the *°^SC0*might laAvfnlly reserve that rate of interest, because he Avas paying it, that Avould not help the defendant ’ provided the obligation to pay Avas absolute upon the bomnver. It Avould be a mere misconstruction of the statute ; Avhicli cannot be beard as an excuse. If the interest reserved exceed six *per cent*at all events, bargain is corrupt in the sense of the statute; that iS) it is a violation of the statute. If the term *indemnity*, he understood in this last sense, there Avas no error in leaving it to the jury. For it is no excuse for the defendant, that this was an effort to save himself from loss by reason of a previous liability of his oavh *;*and there’*47fore, he gains nothing. It is like selling out stock at a loss, and charging the borrower with the loss. *(Moore*v. *Beattie Amb.*371.) Indeed the avoiding of a loss is a gain. But if it were not, the true inquiry is, whether he reserved as interest on the loan made *by him*a higher rate than six *per cent,*and received it as and for the interest reserved. The reference to his own liability upon a distinct matter is nothing. If that liability arose from his agreement to pay twelve *per cent*to a third person, it is manifest that he cannot rightfully make himself whole, by the loan of a like sum to another at the same rate. The interest payable by him, doesnotmake that to be received by him legal. It makes no difference, to this purpose, whetherthcliability of the lender for the excessive interest be created by •stipulation, or arise by act of law. As against him, the rate of interest may be *lawful;*but as between him and the person to whom he lends the money, it is unlawful.

*46But an agree-. theVomuver a-to paytlie íate of interest, Avlúcli the latter is bound to pay a third person, ceeds^mílegal rate, is not a con-ni^t within the meaning of the whetiieruhe^ob-ligation of the e^byactoflawj .orhy stipulation.

*47i lie paymeu of usurious inte íoln as" riguee,andmucb compieS^tS1 offence

Such is precisely this case. For, I repeat, the bond explicitly declares, that the money was lent by *Vannoy*to *Thurmond,*and adjusts the rate of interest, *as such ;*and it was afterwards paid as such. The rate fixed on is illegal. This is done by referring to the liability of *Vannoy*to *Crissman;*and that liability was certain, according to the case. Indeed, the bond is not even, that *Thurmond*should pay to *Vannoy*what the latter should pay to Crissman, or what *Crissman*should *recover;*but what *Vannoy*was liable to pay, which the case states urns twelve *per*cent. If this defence' were sustained, one of the most effective securities for the performance of their duties by sheriffs would be destroyed, and at the same time needy men exposed to the most inordinate ex-actions, on the part of those persons, whose official situations give them the best means of discovering, and profiting by the necessities of the distressed. v

The next position is, that as the act is highly penal, the case must he brought strictly within *it;*and there-lore, that the receipt of the mone}r must he by the defendant personally. To this there are two answers. It has often been decided, that payment to the sheriff on *48an execution, or to an assignee completed the offénce *i*much more, to an agent. But here the1 defendant was present, when the money was counted to his agent. He then recognized it, and surrendered the bond as thereby paid. This was a payment to himself.

' The omission to date a writ can only be taken advantag-e of by-plea in abate-ments.

A verdict that “fhe statute of limitations does not bar,” is not responsive to the issue, and is erroneous.

‘ But it is such a minute of the verdict as to enable the Superior Courtto correct the entry ; *49and although the Supreme Court cannot make this correction,but if it proceeds to judgment, must award a *venire facias de novo,*yet it will stay the judgment, till the correction is made in the court below.

*48Two objections are then, taken, as arising out of the record. The first is, that the writ is without date. If this were true, it is too late, after an appearance and a plea in chief, to make it. It ought to have been pleaded in abatement. But it is not true. Tho’ the year of the Christian era-is-not given in the *teste,,*yet that of American independence is ; and the former is stated in the memorandum of the clerk, at the foot, of the day of issuing the writ.

The other ground for arresting the judgment is, for the defect of the verdict upon the issue on the plea of the statute of limitations. The words are : “ the jury find, that the statute of limitations does not bar.” The authorities cited for the defendant, very satisfactorily prove, that the verdict in this form is bad.' It is not a direct response to the issue upon the point of fact, and upon that alone. The fact is to be collected by inference only, and then is not certainly separated from matter of law. If therefore, thejudgment of the court necessarily turned on the finding of the time as thus stated, it is very uncertain what might be the determination. The truth is, that regular *entries*are is owing which is likely never to bo remedied, until increased business and adequate compensation shall induce competent persons to accept the office. But the court cannot but take notice, that this state of *things,*and perhaps also their own case, have given rise to an almost unlimited confidence of the bar in each other, that all necessary amendments of form in the acts of the clerk shall be made or intended, when the occasion shall call for them. The court would, therefore, very reluctantly yield . definitively to this objection. But we could resist it no further, probably, than by considering the entry not so much the verdict, as the minute for it; and staying the seldom made in our courts. This mainly to the want of capacity in the clerks, *49judgment here, until the plaintiff could move tbe Superior Court to amend the record consistently with the minute, and *bring*up the transcript as amended. That court can mould the verdict into due form : there is no such power here. I mention this, that counsel may be aware of the difficulty, arising out of the constitution of this court; and he more attentive to the making up of the record, where it is to be revised. If brought to judgment upon a defective verdict, this court has no discretion, and must, of necessity, award a *venire facias de*nova.

In popular actions, under *nil*<kbet, the plaintiff must prove his action to have been brought within the period of limitation ; and when that plea is entered, a special plea of the statute of limitar tion presents an immaterial issue.

That Such is not the judgment in this case, isowing to the uncommon circumstance, that the fact, intended to be found upon that issue, is found upon another. In popular actions, the statute of limitations need not he pleaded,' if *nil debet*be. It is a part of the plaintiff’s title or right, that he hath sued, and hath sued in due time. The burden of proof is on the plaintiff, and if his action be not brought within time, he is, upon tbe general issue, nonsuited. (2 *Saun.*63 *a. noieX*Xfthe same matter he put twice in issue, by several pleas, there is no authority that the verdict must refer to each issue. If the act itself be affirmed, that is enough. Here the jury do find, that the defendant owes *the plaintiff*the debt demanded; which cannot be, unless the plaintiff brought suit within the three years .limited bjr the act of 1808.

Per Ctjriam.t-TutmimeNt affirmed.