Taylor v. . Cobb

48 N.C. 138

• Court: Supreme Court of North Carolina
• Decided: December 5, 1855
• Status: Published

Opinion

Battle, J.

In a qui tarn action for usury, the declaration must state precisely, and accurately, the sum lent and'forborne, the time of forbearance, and the excess of interest, “ because these three points- are indispensable to enable the Court to see on the record, that the interest received according to the sum lent, and the time, was at a rate forbidden by laAv; and the proofs must sustain the allegations as laid.” Allen v. Fergu son, 6 Ire. Rep. 17. Hence, it was held in that case, that, as tlie declaration was that the defendant had corruptly taken on 20th of April, 1844, twenty-five dollars usurious interest, on a contract for the forbearance of $175, from 21st of April, 1843, to the said 20th of April, 1844, and the proof was that the usurious interest was taken for the forbearance of $175 from the 21st of April, 1843, to the 21st of April, 1844, there was a fatal variance, though it was for but one day.

In the present case, tlie opinion expressed by his Honor, before whom the cause-was tried, clearly announces the same principles, and shows that the action cannot be sustained. Tlie time of forbearance is stated in all the counts as being from tlie”31st day of March, 1845, to the first day of April, in tlie same year. The testimony shows that the money was advanced on the 15th of March, 1843, and that it was forborne until the first day of April following. The variance between the allegation and the proof, in that particular, is fatal, and the judgment of non-suit must be affirmed.

Per Curiam.

Judgment affirmed.