#### Dozier v. Bray.

From Camden.

iu at'uo»t< oí'debt founded on a specialty or contract, the verdict cannot beirr su:a t-iau is demanded, unless it be found that part of the del... L, .d ’afieii j but in debt on a statute git tug an uncertain sum by >vaj of penaitj, Ike verd'et is good, although a less sum than is ¿e-'■napded, is found to be due.

Tíiíh was an action of Debt qui lam, upon the statuto of usury. The declaration claimed a penally of one hundred and sixty dollars, the amount inane.i having been eighty. On the trial below, the Jury found a verdict for the Tkiiniiff, for one hundred and fifty-live dollars, and Use Defendant moved, in arrest of judgment, that the declaration claimed one hundred and sixty dollars, and the Jury had returned a verdict for a less sum. The motion was overruled, and judgment rendered pursuant to the finding. Whereupon Defendant appealed to this Court.

Taylor Chief-Justice.

The verdict shows that the unlawful contract, set forth in the declaration, had been made, and that tiie Defendant had receive:’! the benefit of it usuriously.

It was an action of debt qui tam, upon the statute of usury, in which the sum borrowed was eighty dollars, and the penalty claimed in the declaration, was one hundred and sixty. The verdict of the Jury tras for one hundred and fifty-five, and for this cause, the Defendant moves in arrest of judgment. The exception was properly overruled ; for the distinction is well settled between an action of debt, founded upon a specialty or upon a contract, and one founded upon a statute giving an uncertain sum by way of penalty.

In the first case, the verdict cannot be for a less sum than is demanded, unless it be found that part of the debt wras satisfied ; but in the latter case the verdict is good, although a less sum than is demanded, is found to be due. *58The statute lit tills case ghes a penalty of double the sum borrowed, asid therefore it is a mal ter of oaicuVhon for the Jury, after the amount of the sum borrowed is proveí!. Í1 is net in be distinguished <rom cases arising under the 2d and'Sd Ed. 6, for not setting out fiches, where the penally given is treble the value of the tithes $ yet the Jury may find the value of the titiles subtracted, to be less than the -, glue alleged in the declaration — (Cro. Jac. 498.) The judgsnent must consequently be affirmed.

Henderson, Judge.

It is not correct to say, that in actions of debt, 'he. precise sum demanded mast lo recovered, all thatio ivij aired, is that the contract slated in the declaration, smould be proven. The common opinion, that the sum demanded, and no oilier, can be recovered, arose from this — this action is most commonly brought on'specialties and judgments, which show a certain and precise sum due, and there could not well be a different sum recovered, without having proven a contract different from the one laid •, the effect was taken as the cause of failure — it was the variance between the evidence and the contract dated, and not the verdict of the Jury drawn from that evidence. This is abundantly proven in actions of debt, for not setting out tyib.es, actions of debt upon the usurious loan of goods, and debt upon simple contract $ in- this case there is no cause for arresting the judgment, nor is there cause for a new trial,? for it does not appear that the evidence proved a different cause of action fromithe one stated in the declaration. For what cause, when the Pfei'uliff proved an usurious loan of eighty dollars, the Jury did not give him one hundred and sixty dollars, to-wit, double the sum loaned, but only one hundred and fifty-five, I am unable to say j but because the Jury have given him less than he is entitled to, it is no reason that the Court or the Law should take that from him.

Haul, Judge, concurred.