
    State v. Fleming.
    (Nashville.
    January 8, 1901.)
    1. Usuby. Code provisions not repealed by conventional interest statute.
    
    The Code provisions relating io usury were not repealed or modified hy the Act of 1869-70, creating a conventional rate of interest. (Post, pp. 218, 219.)
    
    Acts construed: Acts 1869-70, Ch. 69.
    Code construed: §§ 6732-3 (S.); §§ 5622-3 (M. & V.); 4821-2 (T. & S.).
    2. Same. Punishment of.
    
    Taking usury, less than ten dollars in amount, is punishable under the Code provision that “the punishment of this offense shall be a fine in no case less than ten dollars nor more than the amount of the usury received.” (Post, pp. 219, 220.)
    
    Code construed: \ 6733 (S.); I 5623 (M. & V.); ? 4822 (T. & S.).
    FROM DAVIDSON.
    Appeal' in error from tbe Criminal Court of Davidson County. HoN. J. M. ANDeesoN, J.
    Attorney-general Picicle for State.
    Lellyett & Bake for Eleming.
   Wylkes, J.

Tbis is an indictment for receiving usury. Tbe charge is that defendant did exact and receive from one Eliza Benson, colored, as compensation for tbe use of money, an usurious rate of interest, to wit; 390 per cent, per, an-num on $5, or $1.60 for tbe use of $5 for the period of one month.

The cause was tried in the Court below without a jury, and the learned Judge found the defendant guilty, and that $1.60 was charged under disguise for the use of money, as charged.

Very many exceptions are made and' many errors are assigned to the action of the Court below with great particularity of detail.

Our statutes in regard to usury are thus set out in Shannon’s compilation:

Section 6732. “No person shall receive, by way of compensation for the use. of money, more than at the rate of six .dollars for the use of one hundred dollars for one year.

Section 6733. “The punishment of this offense shall be a fine in no case less than ten dollars nor more than the amount of the usury received, to be ascrtained by the jury,” etc.

These statutes . had their origin in the Acts of 1835-6, Chap. 50. They are brought forwárd into our Code of 1858 as §§ 4821 and 4822, and in the compilation of Millilcen & Vertrees as §§ 5622 and '5623.

The first insistence is that these Acts were repealed by the Act of 1869-70, called the conventional interest law, and when this latter Act Vas repealed by tbe Act of 1877, Cbap. —, page 37, tbe former laws were not re-establisbed or reenacted.

We are of opinion tbis contention is not correct, and that tbe Act of 1835 (Code, §§ 4821 and 4822), was not repealed by tbe Act of 1869-70. That Act does not purport to repeal any former Act, but only to amend. It only provides, in substance, in tbe first section for a conventional rate of interest by written agreement of parties, and by tbe second section tbat tbe interest and usury laws then in force should remain as theretofore, in tbe absence of such written agreement; and by tbe third section a penalty and punishment is provided for a violation of tbe first section. • The two Acts are not in conflict, but the Act of 1869>-70 only provides for an exceptional case to be taken out of and not to be treated as within tbe provisions of tbe Act of 1835 and Code §§4821 and 4822.

Tbe second contention is tbat under tbe wording and language of § 6733 it was never intended by tbe ' General Assembly to punish the taking of usury when tbe amount taken is less than ten dollars. In other words the statute says tbat tbe fine in no case shall be more than tbe usury received, and in no case less than ten dollars. So tbat if tbe usury received was less than ten dollars no fine can be assessed, and the argument is that. for such a small offense tbe Legislature did not tliinlc proper to affix a penalty.

It appears that the section, from the peculiar collocation of words, is susceptible of this construction. But when we look to the original Act of 1835-6, from which it was compiled, the meaning and proper construction appear at a glance. It reads as follows:

“Shall be fined a sum not more than the whole usurious interest, so taken and received; which amount shall be ascertained by the jury trying the case; provided, no fine shall be less than $10.”

We are of opinion, therefore, that the Act was intended to apply to all cases of receiving usury, no matter what the amount taken might be, and the provision is that the minimum punishment shall be $10 in any case, but the ' maximum shall in no case exceed the usury taken, when the usury exceeds $10. Using the same words of the statute, but in a different collocation, the section would read:

“The punishment of this offense shall be a fine not more than the amount of the usury received, to be ascertained by the jury, but in any case not less than ten dollars.” This we think is the proper meaning of -the statute, and thus read the taking of usury in an amount less th'an $10 subjects the taker to a fine of that amount. Taking usury to an amount greater than $10 subjects tlie taker to a fiue not more than the usury received.

Some exceptions are made that the evidence does not sustain the finding of the trial Judge, but we ’think they are not. well made, and that the offense is made out, and we affirm the judgment with costs.  