
    John Stewart, vs. Charles Fowler.
    Tits act against usury, after fixing a penalty of, three times the-, amount of any usurious loan, to be recovered by action of debt, SfC. limits the commencement of the action to six months after the offence committed. Plaintiff lent $100, on usurious interest, and received various sums on account of the loan, more than six months before action brought, and the balance of principal and usurious interest, within six months: Held that plaintiff was entitled to recover three times the amount originally loaned.
    
    This was an action of debt, on the act of 1777, Public Raws, 286, to recover treble the amount of a sum .of money lent by the defendant to one William Lyles, on which he accepted and received interest, at ahigher rate than 7 pr. cent per annum.
    The declaration contained three counts. The first count charged, that the defendant had taken “accepted and received the sum of-by way of corrupt bargain for the loan of $100’,’ &c. which was above the rate and proportion of seven, dollars, for the forbearing and giving clay of payment of $100.
    The second count charged that defendant upon a certain other corrupt bargain, made &c. did take, accept and receive of the said William Lyles, in consideration of one hundred dollars loaned to the said William on or about the 22d January, 1818/the sum of $5, on or about the 2d of April of the same year. The further sum of $5, on or about the 22d July, of the same year. The further sum of $10, on or about the 22d January, 1819. Also the further sum. of $50, on the 26th February 1820, and finally on the— -day of March, 1-820, the sum of eighty four dollars, the balance due on th.c said bal’gin,.which said several sums of money, so taken, accepted and received by the said Charles, for the sum of one hundred dollars and the ■ forbearing and giving day of paj--incut thereof, from the time of the loan- aforesaid until it was. paid as aforesaid, exceeds the rate of1 $7 for the forbearing of $100 for one year; contrary to the act, Sic. Whereby an action accrued to the said. John, to have and demand treble the amount of the- said sum of money, so loaned, fyc. The third count is like- the first, except that it charges that the sum received was at the rate of 20 per. cent, per ann. and. in both, the amount received was left in blank.
    The evidence was, that-on f?ie22d January. 1820, defendant lent to William Lyles $100, and that it was agreed that he should pay interest on it, at the rate of 20 per. cent per ann. and that in pursuance of this agreement, the several sums of money mentioned in the second count of the declaration were paid and .received by the defendant. -
    The act limits the commencement of foe action to six months after the offence committed, and all three payments except the last ($84.) were made more, than six months before the action was brought; that was confessedly within that time. This amount was made up of $70, abalance due on the note, after deducting the preceding payments, and ,f Í4 of interest, calculated at 20 per. cent.
    The jury, under -the direction of the court, found ,a verdict for the plaintiff; and this was a motion.
    1st. For a nonsuit, on the ground that the evidence did not sustain the case stated in the declaration.
    ■2d. For a.new trial, on the ground that the ver dipt is for more than treble the amount received wkhin six months before the action was brought.
   The opinion of the court was 'delivered by

Mr-. Justice Johnson.

1st. motion for nonsuit.

The facts stated in the second count of the declaration a&e precisely in accordance with the truth of the case; and as applied to this count, the ground of the motion for nonsuit rests on the position, that the receipt of the usurious interest on the balance of $‘70, that was due of the principal, does not support: the allegation that it was for the forbearance of $100, the sum originally lent.

The act, after declaring all contracts void in which a greater rate of interest is reserved than sevep per cent, per ann provides that if any person shall “take, accept, or receive, by way.or means of any corrupt bargain, loan, exchange, shift or interest of any monies, wares, merchandizes,” &c. “he shall forfeit and lose for every such offence the treble value of the mo ' nies, wares, merchandises, &cc. so. lent, bargained, exchanged,, shifted, or taken.” And concludes with a proviso, that actions to recover the same shall be brought in the life time oF the offender and within six months after the offence committed-

It is not necessary to resort to construction, to ascertain the meaning of the legislature in reference to this question. It is obvious that the offence intended to be punished by' the, penalty which the act imposes, consists in the act of receiving illegal interest, in pursuance of a corrupt agreement. Let it be asked then, what was the agreement between these parties? It is •answered by the facts stated in the record and proved on tiré trial. The defendant lent Lyles $100, and it was agreed'that he should, and he did in fact pay him at the rate of 20 per cent, per ann. for forbearance.

O’Neale and Irby., for motion. P, Farroip, contra.

It is objected that the amount received within six months before action brought, was for the usury on $70, and not for lie $100. There was no proofof any new agreement with -respect to the interest or usury on the $70, and if legal implication be resorted to, it could not extend beyond the legal interest, and the excess must be put down to the original corrupt, agreement. So that plaintiff was right in declaring in reference to that agreement, and his count is supported by the proof.

This view of the question is also supported by authority, In Mallory vs. Bird, cited in Pollard vs. Scholy, cro. Eliz. 20, it" was held that if one contracts to have more than the statute allows, but he takes nothing of the interést contracted for, ■he is not punished by the statute. But if he takes any thingj-if it be but- a shilling, it is an affirmance of the contract and ho shall render for the whole contract.

This motion,, in reference to the other: counts in the declaration, is founded on the fact that in both, the sums charged to have been received are in blank. The disposition made of the preceding question has rendered any opinion on this unnecessary;; but I should incline to the opinion,■ that if it is not cured "by the verdict, the court would, if indispensable, give leave to amend.

2d. Motion for anew trial. This motion is■ founded on the position that plaintiff was only entitled to recover three times' the amount received within six months before action brought.

This quéstion was necessarily involved in the ground taken for a nonsuit, and. the reasoning and authority relied on apply with equal force to this- The defendants^ liability is with reference to the corrupt agreement,, and if he received but a shilling, it was an affirmance, and he shall render for the whole contract. Motion refused.

(Jolcock, Richardson, Huger, & Gantt, Justices, concurred.  