Gardner v. Daniel

7 Del. 300

• Court: Superior Court of Delaware
• Decided: July 5, 1860
• Status: Published

Opinion

The Court,

Gilpin, Ch. J.,

charged the jury: The provision of the statute in this state against what is commonly termed usury, is in these words : “ The legal rate of interest is six per centum per annum ; and if any person shall directly or indirectly, take for the loan, or use of money, more than six dollars for the loan, or use of one hundred dollars, for one year, and in that proportion, he shall forfeit and pay, to any one who will sue for the same, a sum equal to the money lent; one half for the use of the person so suing, and the other half for the use of the State.” Any violation of this provision subjects the party offending to the forfeiture of a sum equal to the money lent. The only defence set up in this ease is that the action is barred by the statute of limitations, because it was not commenced as the defendant’s counsel has contended, within one year after the accruing of the cause of action, or the consummation of the offence, on the completion of which, the forfeiture and penalty occurred. On this point and upon the question which had been presented in the argument of counsel for consideration and decision, it is the opinion of the court that the cause of action accrued in this case when the debts, or loans were paid, whenever that may have been, and which it was for the jury to determine from the evidence before them; and if the suit was commenced not more than one year after the debts were paid, the action was not barred, and the plea of the statute of limitations was not a good and valid defence against it, and the verdict in that event should be for the plaintiff. According to the evidence the judgments which were entered by confession on the bonds given to secure the repayment of the loans, were not paid until the 12th of September, 1859, and this action was commenced on the 17th of November in the same year, and if such were the facts in the case, it of course, was not barred. The jury, however, must be satisfied frqm the evidence in the case that á loan of money was made by the defendant to Deakyne, for which he had taken and received for the use of it, more than at the rate of six per centum per annum, or they could not be justified in finding in favor of the plaintiff; and if satisfied from the proof produced, that such was the case, the amount of their verdict in favor of the plaintiff, ought not to exceed the actual amount of money lent by the defendant to Deakyne, without interest thereon.