
    Boehme vs. Aisquitn, qui tam.
    
    <<i on the act of 1704, ch 69, against: usury, for #450 debt. The declaration contained two counts, each demanding #450 on a corrupt agreement íbr a loan of #150, from the 2d of rie .temln-r 1805 to the 5th of October 1805, for which the lender was to receive #90, and fbr securing1 the payment rh< reef, the o rower gave a promissory note, endorsed by him to the ender,for 240 dol ers ptiyvsb'e in 30 days Verdict,on nil debt pleaded, that the defendant owed the said sum of‘450 doü'Ar>~“ju;lg!nent entered ibr 450 dohais debt, and 000 dolls, damages and costs; to hereleased on inymenr of 450 tbdlars, with interest, &o. O. appeal judgment reversed.
    
    
      Quere, Whether a qui tara action will lie where the usurious loan is íbr a h-ss time than one whole ystarl
    
    Whether the judgment to be entered on a verdict in such im action is embraced by the aet of 28C9n rhr. 153, s 4; íb?; the amendment of judicial proceedings? Q\tore*
    
    Appeal from Baltimore County Court. 1 his was an action of debt brought on the 30th of September 1809, for * r 5 g450. The declaration contained two counts, each demanding §450, and setting out the promissory note hcreaf-ter mentioned, and a corrupt agreement between the defend ant, (now appellant,) and the plaintiff, who sued, &c. (now appellee,) for a loan of 8150 by the former to the latter, from the 2d of September 1805 to the 5th of October 18t)5, for which the former was then to have 890; and for securing the payment as well of the §150 as of the 890, the plaintiff endorsed the said note to the defendant. The defendant pleaded nil debet, and the act of limitations. To these pleas there were the general replications, and issues were joined. At the trial the plaintiff gave in evidence, that the defendant, at the request of Edward Msquith, on the 2d day of September 1805, paid him the sum of §150, for the following promissory note:
    “8240. Baltimore, September 2d, 1805.
    Thirty days after date I promise to pay Edward Ms-quith, or order, two hundred and forty dollars, for value received. John Neale.”
    
    Endorsed in his own hand writing, Edward Jlisquith. That after the time appointed for the payment of the note, the same being unpaid, the defendant on the 30th of October in the same year, passed it to Thomas Baltzell, and received from him a quantity of goods, which at the usual selling price, amounted to the sum of g240, and agreed to pay the said sum of §240 to Baltzell, if he should not recover the amount of the note from Msquith, or from Neale, the drawer. That a suit was commenced by Balt-zell against Msquith on the said note, and judgment was obtained against him for the amount of the sum of money mentioned in the note, with interest and costs; and that a fieri facias issued on the judgment, and was delivered to the sheriff of Baltimore county on the 22d of July 1808, returnable to October term in the same year. That the sheriff, on the receipt of the fieri facias, agreed to become answerable for the payment of the amount of the judgment, but did not actually pay the same until the month of November following; nor did he receive payment thereof from Msquith until after he (the sheriff) had actually paid the same. The defendant then prayed the court to direct the jury,' that the plaintiff was not entitled to recover, even although the jury should believe the facts above stated. This direction the Court [Nicholson, Ch.'J.] refused to give. The defendant excepted. Verdict, that the defendant owed the said sum of 8450, and that he was guilty, &c. within one year, &c. Judgment entered for the said sum of 8450, current money debt, and the sum of 8900 current money damages, (being the damages laid in the declaration,) and costs;, to be released on payment of 8450, with interest, &c. From which judgment the defendant appealed to this court.
    The cause was argued before Buchanan, Earle, John-., son, and Martin, J.
    
      
      W. Dorsey, for the Appellant.
    1. Admitting the proof to be that there was a usurious lending, jet it is not embraced by the act of 1704, ch. 69. The first section of that act contains a general prohibition, and declares what shall be usury. The second section declares that all bonds, &c. made upon or for usury shall be void; and the. third section, (which is the section on which the plaintiff founds the demand for treble the sum loaned) declares “that all and every person and persons who shall upon any contract to be made, take,” &c. “by means of any corrupt bargain, loan,” &c “for the forbearance or giving day of payment for one whole year, above the sum of money aforesaid,” (that is, £6 for J? 100,) “shall forfeit and lose, for every such offence, the treble value of the money so lent, one half to the Queen, and the other half to him that shall sue for the same, to be recovered by action of debt,” &c. It is clear, that as the usurious interest claimed was for a shorter time than one whole year, the action could not lie. An indictment might lie, but not a penal action for treble the value. Penal statutes must be construed strict~ ly. J Blk. Com. 88, (and Christianas notes.)
    2. There was not sufficient proof of the usurious transaction. If the defendant had sued the plaintiff, he could not have recovered more than SI 50. Nor could Baltzell have recovered more than that sum. He stood in the-same situation as the defendant did. There is nothing from which usury can be inferred. A man may purchase a note for less than the amount, and not be guilty of usury. But how much he might recover on it is ano:her question.
    3. The writ demands a debt of §450. The declaration has two counts, each for §450. Hare then are demands for 8900, and a recovery for only §450. Compton vs. Smith, Yelv. 5. The judgment is for §450 debt, and §900 damages and costs, to be released on payment of §450, with interest, &c. This judgment is erroneous, and is not embraced by the act of 1809, ch. 153, s. 4, which says that where a verdict shall be given, the court shall enter such a judgment upon the verdict as will carry an interest, &c. until payment, of the damages, assessed by the jury giving such verdict. This is not the kind of action embraced by that act, being a qui tarn action in which the state is concerned, and is in the nature of a prosecution on the part of the state; and here no damages were assessed by the jury — they merely Slid that the defendant owed the debt demanded.
   íNjIKJMENT REVERSE®»  