Opinion
(December Term, 1846.)
1. When a witness in giving his deposition refers to a note, and, by way of identifying it, recites what he believes to be a correct copy of the note, no objection can be taken on that account to the deposition, and the party will be at liberty to introduce on the trial the original note so described.
2. Where an usurious loan is made to A as the avowed agent and for the benefit of B, the declaration must state the loan to have been made to B.
3. Though in a declaration for usury it is proper that some day should be stated as the day of payment of the usurious interest, yet it is not necessary to set forth the true day of payment, inasmuch as it is immaterial when the usurious interest was paid, if before the commencement of the action.
4. It is only necessary to set forth truly the time for which the forbearance was stipulated in the contract of loan.
APPEAL from GRANVILLE Fall Term, 1846; Battle, J.
Debt for $800, due as a penalty under the act against usury. The declaration states that after 1 January, 1838, to wit, on 4 May, (80) 1841, upon a corrupt contract, made on 4 August, 1840, between the defendants on the one part and the plaintiff Jones on the other part, the defendants took from Jones the sum of $134.16 for having forborne and given day of payment of the sum of $400 on 4 August, 1840, lent and advanced by the defendants to Jones from 4 August, 1840, to 4 May, 1841, which said sum of $134.16 exceeds, etc. The plea was nil debet.
On the trial the plaintiff offered to read in evidence the deposition of Horace T. Royster of Alabama, in which he stated that on 4 August, 1840, as the agent of the plaintiff Jones, he proposed to the defendants to sell them a Raleigh and Gaston Railroad scrip for $500, payable to S. B. Everett or order, and endorsed by said Everett and by said Jones; and they agreed to let the witness have for Jones the sum of $400 for the scrip, provided Royster would also add his indorsement; and he did so, and then delivered to them the scrip and received the $400, and paid it over to Jones. The witness states that Jones was the owner of the scrip, and that, throughout the transaction, he acted as the agent of Jones, and the defendants knew that he did; and that he gave his own indorsement solely at the instance of the defendants, as an additional security. The deposition then proceeds thus:
The following is believed to be a copy of the scrip referred to:
$500. RALEIGH, N.C. 1 March, 1840.
The Raleigh and Gaston Railroad Company promise to pay to S. B. Everett or order $500 on account of depots, with interest from date. No. 951. GEORGE W. MORDECAI, President.
The witness states further that the defendant sued Jones and the (81) witness on their indorsement in Granville County Court, and obtained judgment against them at February Term, 1841, and that on 4 May, 1841, Jones paid the sheriff the principal money and interest due thereon.
To the reading of the deposition the counsel for the defendants objected because no sufficient reason was given why the original note or scrip, of which the deposition professes to set forth a copy, was not produced before the commissioner when the deposition was taken, nor its absence accounted for; and thereupon the counsel for the plaintiff produced the original scrip itself, with the record of the suit brought in Granville County Court by the present defendants against Jones and Royster, which is referred to in the deposition, and proved the scrip and the endorsements, and then gave the same in evidence, and thereby it appeared that a judgment was rendered therein at February Term, 1841, and a writ of fieri facias issued thereon, which was returned by the sheriff of Granville to May Term, 1841. On the part of the plaintiff evidence was further given that on 4 May, 1841, the sheriff collected from Jones upon the execution the sum of $534.16, being the amount due for the principal and interest upon the judgment and execution to that time; and that the sheriff paid the same to the defendants on 10 May, 1841. Thereupon the court, notwithstanding the said objection of the defendant's counsel, allowed the deposition to be read to the jury.
Upon the evidence thus given, the counsel for the defendants insisted that the plaintiff had not maintained the issue on his part: First, because Royster endorsed the scrip after Jones had done so, and that, therefore, in law the contract of loan was not with Jones, but with Royster, or with Jones and Royster; secondly, because the declaration states the money to have been received by the defendants on (82) 4 May, whereas it was in fact on 10 May, and that variance is fatal.
By the assent of the parties, the questions were reserved and a verdict taken for the plaintiff; and it was agreed that if the judge should be of opinion that by reason of either of the objections, the plaintiff was not in law entitled to recover, the verdict should be set aside and a nonsuit entered. Afterwards, though the defendants' counsel again insisted on his former objections, the judge gave judgment for the plaintiff, and the defendants appealed.
Badger for plaintiff.
J. H. Bryan and Gilliam for defendants.
The objection to the deposition was properly overruled. The testimony was not offered to establish the contents of the instrument before the jury, in the sense of dispensing with the original for that purpose. On the contrary, the original was produced and given in evidence. The sole purpose, then, of setting out the copy of the note in the deposition was to identify the particular instrument, which was the subject of the transaction to which the witness refers and primarily deposes. There may have been many papers of the kind, and therefore it might be material to identify that about which the parties dealt. That might have been done by this witness saying, for example, that it was the only one he ever endorsed, or was sued on in Granville Court, or the like. It does not hurt his testimony that after stating the suit on it, he proceeded further to set out a copy, so that any paper that might be produced as an original might be compared with the copy, as a test whether it was really that of which the witness was speaking. It was a particularity that might have operated inconveniently to the plaintiff, if the witness or the commissioner had made a slip in copying; but it can by no means hurt the deposition as evidence of identity, (83) which was the sole purpose for which it was offered upon the trial. It is in that respect that this case differs from that of Regina v. Douglass, 1 Car. Ker., 670, where the original books were produced before the court in Madras, which took the deposition, and they were retained there, and a copy of them sent in the deposition as the only evidence upon the trial in England of the contents of the originals.
There is nothing, we think, in the notion that, as the commissioner acts under and as the substitute of the court in taking the deposition, he ought not to take testimony from the witness to any fact to which the witness could not under the same circumstances testify before the court; for the deposition is not at the taking offered as evidence, but it is taken to be offered as evidence on the trial of the cause; and it will or will not be received, as it may then appear to have been duly taken. For example, the commissioner may proceed to take the deposition without proof before him of the notice to take it; or he may examine a witness as to the contents of a lost bond, though the loss be not first proved; but before the deposition can be read in evidence the notice must be shown to the court, or the loss must be established at least, prima facie. The truth is, however, that there is nothing in this deposition which the witness might not have stated if he had been personally examined on the trial; for he did not mention the contents for the purpose of establishing them thereby, but merely to designate what original he was deposing about.
Jones v. Cannady, 15 N.C. 86, is conclusive upon the point that the declaration is not supported in the allegation that the loan was to Jones. Supporting the evidence of Royster to be true, the fact is expressly proved.
The next objection is that the day of payment of the usurious interest is erroneously stated to be 4 May. If it be necessary that the precise day of taking the unlawful premium should be laid in (84) the declaration, this objection is fatal, inasmuch as it was held in Wright v. Gibbony, 19 N.C. 474, that the action did not arise upon the collection of the money by the sheriff, but upon the receipt of it by the defendant. But no authority has been cited, and the Court is not aware that there is any, establishing that the day of making the payment must in this case be truly laid in the declaration more than in any other case, or that the precise time of committing the offense of usury is more material than that of committing any other offense. It is necessary, when a deed, record or other writing is stated in pleading, that the true date or proper term should be set out, as it is in respect to the sum of money mentioned therein, or the parties to the document, because those particulars enter into the description of the contract or record, and are necessary to its proper and sufficient description. But if an action be brought on an oral contract, though it be necessary in the declaration to allege a day when it was made, as time and place must be annexed to every material fact stated, yet, when the time is laid under a videlicet, it is not necessary to prove the day as laid, because it is neither a part of the description of a document nor of the substance of the agreement as made. So if payment ad diem be pleaded, payment before the day sustains it; and if the payment be pleaded post diem, although a time must be alleged in the plea, it is certain the evidence is not restricted to that time; for the substance is the payment, and that is not affected by the day on which it took place, unless, indeed, it be pleaded as a payment acknowledged by writing, which is relied on as an estoppel. In stating a case of usury, either in a declaration or plea, the time must, according to the general rule, be annexed to each fact; and, furthermore, the time must be alleged, as far as it enters into the description of the contract, because that is indispensable to the ascertainment of the receipt by one of the parties from the other of excessive interest; (85) in other words, to show that the offense has in law been committed. The sum lent and forborne, the time of forbearance, and the sums received for interest must appear in the declaration. Allen v. Ferguson, 28 N.C. 17. And in order to show the time of forbearance, the several days on which the loan or the agreement for forbearance was made, and that on which, according to the agreement, the payment was to be made, must necessarily be stated. Usually the forbearance is measured by the period between the day of the agreement for forbearance and the day of payment; and, therefore, in that case the day of payment is naturally stated, according to the truth, to be that on which the forbearance, as stipulated for, expired. But if it be supposed, as may well happen, that A. owes to B. £ 100, and that it is agreed between them on 1 January that for the forbearance thereof from that day until 1 July following, A. shall pay £ 10 on 1 July, and A. does not pay the £ 10 on 1 July, but pays it on 1 August, then the declaration must set forth 1 January and 1 July as the period of forbearance agreed on and as that for which the £ 10 was paid, so as to show the excess of interest. For it would not the correct to allege that the forbearance was until 1 August, although the payment was on that day; for the parties contracted for forbearance of the principal up to 1 July, and the £ 10, though received afterwards, was received as the price of the forbearance to 1 July and not to 1 August. In that case the day of the payment of the unlawful interest, and the day of the expiration of the forbearance, for which it was paid, would be different; and although the day which determined the forbearance must be truly alleged in order to measure the rate of interest, just as the sum forborne and the sum paid for interest must also be truly alleged, yet there is no such reason why 1 August as the day of receiving the premium should be set forth with precise truth. That forms no part of the contract of loan or forbearance, (86) nor is requisite to measure the interest. It is simply annexed to an allegation of the payment of a sum of money on a certain contract, and, as in other cases of an alleged payment, there is no variance from the substance of it when the payment is shown to have been made on a different day from that alleged, but to the amount mentioned and for the purpose mentioned. The Court, therefore, holds that the plaintiff did maintain the issue on his part, notwithstanding the day on which the defendants received the usurious interest was different from that stated in the declaration — it appearing that the sum lent, the time of the loan, and the time for which it was forborne are all truly alleged.
It is, indeed, further insisted that the period of the forbearance is not properly alleged in the declaration, because it extended to 10 May, 1841. This point is not stated in the exception to have been taken in the Superior Court, and, therefore, could not be insisted on here. But it is admitted that it was intended to be stated, and agreed that is should be considered as having been stated, and that if the Court should find anything in it the exception should be amended. But the Court is of opinion that the declaration states the forbearance truly, according to the evidence; for, although the defendants did not actually receive the money into their own hands, so as to incur the penalty under the statute, until 10 May, there was yet, not a forbearance to that day, but the payment was exacted from the debtor on 4 May. The forbearance to the debtor certainly terminated with the payment by him, which discharged his debt and put the money beyond his control, unless it had become his again by refusal of the creditor to receive it and his direction to the sheriff to pay it back.
PER CURIAM. Judgment affirmed.
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