Upson v. Austin , 4 Ala. 124 ( 1842 )

GOLDTHWAITE, J.

1. The present action is founded on the 2d section of the act of 1819, entitled an act to regulate the rate of interest, which is in these words:

“ Every person who, upon any contract, shall take, accept, or receive, by way or means of any corrupt bargain, loan, exchange or shift of any money, goods, wares, merchandize, commodities, or bonds or notes, or other thing whatsoever, above the rate of eight dollars for the forbearance or giving day of payment of one hundred dollars for one year, and so after that rate for a greater or less sum, or for a longer or shorter time, and so after that rate or proportion for goods, wares merchandize, commodities, bonds or notes, when such shall be lent, contracted or agreed for, taken, accepted or received, shall forfeit and lose for every such offence, the whole value or amount together with all interest thereon; one half of which forfeiture shall be paid into the public treasury for the use of the State, and the other half to him or them that will inform and sue for the same, to be recovered with costs by action of debt, in any Court of record in the State : Provided, That if the borrower should be the informer as aforesaid, the whole amount thus recovered shall be paid iuto the treasury for the use of the State: Provided also, That every such action of debt as aforesaid, shall be commenced and sued in the lender’s lifetime, or within three years after the commission of the offence, or within one year after the time of payment of any money, goods, wares or merchandize, contracted to he paid on any usurious agreement or contract.”

The question to be determined is, at what time and by what act is the offence of usury complete, so as to give the right to sue for the penalty?

When only the body of the section is examined, it .seems perfectly clear that the taking, accepting or receiving of the illegal interest contracted for is necessary to consummate the ■ offence. Additional force is given to this construction by the first and fourth sections of the act, the former of which has the effect to avoid all usurious contracts, and the latter expressly declares that the obligor of any note or bond given on account of any usurious contract shall be forever exonerated therefrom. It is therefore certain that these sections impose on the lender the liability to lose the entire sum lent or contracted for, and hence it would be most unreasonable to create additional forfeiture by mere implication. Independent of this view, it may be said that the contract to take illegal interest only evinces an intention to violate the statute, which is punished by the nullity of the contract, and that therefore the object of the statute never could have been to inflict a double punishment for a mere intention not carried into effect.

The doubt with respect to the proper construction of the statute arises out of the last clause of the second proviso; which directs that the action for the penalty shall be brought within one year after the time of payment of any money, &c. contracted to be paid in any usurious agreement or contract, and because this is comparatively inconsistent with the second clause of the same proviso, it is inferred that the evading clause must be extended, so as to give every term of the proviso its fullest effect. It may be conceded that it is difficult to conceive how the action may be brought within three years after the commission of the offence by the receipt of the money contracted for, and yet within one year after the time of payment contracted for, yet if there is any such condition in which a contract may be placed, all the terms of the proviso will be filled.

This would be the case where money was contracted to be paid at a distance of four years. Then if the payment was made in advance of the time and within two years after thé-making of the contract, full effect could bei given to eac'bofthe limitations. It may be said this would be a forced construction, but in our opinion it is not so much so as to extend, the enacting clause by any implication arising from the uncertainty of the proviso. If, however, we were driven to that necessity, We should declare that the different clauses of the proviso inconsistent with each other, were ineffectual for uncertainty, rather than extend the statute beyond what seems to have been the manifest intention.

Our conclusion then is, that no right to the penalty is given until the receipt of the money contracted for as interest, and that it does not attach at the time of the contract.

2. It is said however that the plaintiff, on the pleadings and proofs was entitled to a verdict. To sustain this position the case of Hazard v. Purdom, [3 S. and P. 43,] is relied on. There evidence was given to sustain a bad plea, on which issue Was taken, and it was held the party was entitled to a verdict according to the issue, and independent of its merits; but then the charge was requested as applicable to the particular issues. So in this case, we might not feel disposed to deny the right of the party to a verdict on the second count of the declaration, if he had asked a charge applicable alone to that, but as he did not do so, and as the evidence did not make out a legal cause of action, although it support's the second count, which is defective and bad under the view we take of the statute, this point of the case is precisely within the principle of the decision of Cullum v. The Branch Bank of Mobile, at this term.

There is no error in the record, and the judgment is affirmed.