Dozier v. . Bray , 9 N.C. 57 ( 1822 )

The verdict shows that the unlawful contract set forth in the declaration had been made, and that the defendant had received the benefit of it usuriously.

It was an action of debt qui tam, upon the statute of usury, in which the sum borrowed was $80, and the penalty claimed in the declaration was $160. The verdict of the jury was for $155, and for this cause the defendant moves in arrest of judgment. The exception was properly overruled; for the distinction is well settled between an action of debt founded upon a specialty or upon a contract and one founded upon a statute giving an uncertain sum by way of penalty.

In the first case the verdict cannot be for a less sum than is demanded, unless it be found that part of the debt was satisfied; but in the latter case the verdict is good, although a less sum than is demanded is found to be due. The statute in this case gives a penalty of double the (58) sum borrowed, and therefore it is a matter of calculation for the jury after the amount of the sum borrowed is proved. It is not to be distinguished from cases arising under the 2d and 3d Ed. VI, for not setting out tithes where the penalty given is treble the value of the tithes, yet the jury may find the value of the tithes substracted to be less than the value alleged in the declaration. Cro. Jac., 498. The judgment must consequently be affirmed.