#### THOMAS MURRAY *vs.*ELISHA KING & AL.

In an action of assumpsit to recover back money paid as usurious interest, the verdict was as follows “ who find all payments within three years, either on notes given before or otherwise with interest thereon in favor of the plaintiff to wit, $558 and $100 withi nterest on the same.” The judgment on that verdict was “ for the sum of $935, of which $658 bears interest from the 10th day of October 1847 till paid.” *Held,*that the judgment did not appear to correspond with the verdict, and, even if it did, the verdict is, in itself, insufficient and insensible.

Appeal from the Superior Court of Law of Buncombe County, at the Fall Term 1847, his Plonor Judge Settle presiding.

The action was assumpsit for money had and received, in which the plaintiff sought to recover the excess above the principal and lawful interest, paid by him upon a *529contract alleged to have been made between the plaintiff and the defendant’s intestate and to have been usurious. The pleas were, non assumpsit, and the statute of limitations.

The bill of exceptions is very *long,*containing- the statements of much evidence, and many points raised on the part of the defendants, against whom there was judgment. But it is unnecessary to state them, as the decision of the Court is on the single point following. The verdict is in these words, “ who find all payments within three years either on notes given before or otherwise with interest thereon in favor of plaintiff, to wit, $553, and $100, with interest on the same. Upon that verdict judgment was entered for the plaintiff for the sum of $938 34. of which $658 bears interest from the 10th day of October 1847 till paid,” and costs; and therefrom the defendants appealed.

*JUdney*and *J. W. Woodjin,*for the plaintiff.

*Baxter*and *N. W- Woodjin,*for the defendants.

Ruffin, C. J.

From reading the case appearing in the record, it would seem extremely difficult for the plaintiff' to get on at law under the circumstances, whatever may be his merits, or however clear his remedy might be in anothar Court. But we do not wish to pre-judge the quer-tions, that may arise hereafter, and therefore the Court will not consider the points made at the trial, since, under no ciruumstances, can the verdict and the judgment be sustained, as they are found in the record. The judgment does not correspond with the verdict, being for a much larger sum than that mentioned in the verdict. We suppose that addition is for the interest indicated in the verdict; but, supposing that that could be calculated by the Clerk of the Court, if the periods, for which it accnr ed, were designated, the verdict contains no such designation, and therefore, there is nothing to govern in ma*530king the calculation. Besides, the verdict is in itself insufficient and insensible. It does not pass on the issues joined and assess damages to the plaintiff; but, unintelligibly, finds in favor of the plaintiff all payments (by whom, or to whom, is not said) within three years (from what time, is not said) either on notes given before or otherwise (which is past comprehension.) with interest thereon, viz : $558, and $ 100, with interest on the same, from or to what day, is not specified. Such a verdict cannot authorize any judgment, for even the sums mentioned in it are not assessed as damages due to the plaintiff, but found as payments in his favour. The judgment must therefore be reversed, and a *venire de novo*awarded.

Per Curiam. Judgment reversed and *venire de novo.*