The opinions in this case were filed on April 3,1897, but the remittitur was stayed on petition for rehearing until
The opinion of the Court was delivered by
Mr. Justice Gary.The facts out of which the issues herein arose, are set forth in the Case, and they, together with the decree of his Honor, Judge Gary, will be incorporated in the report of the case.
1 The appellant’s exception to the order of Judge Townsend is as follows: “Plaintiff excepts to the order of Judge Townsend, of 16th August, 1895, referring certain issues to a jury; because the said order is without jurisdiction and void, in that it disregards and reverses the order of Judge Witherspoon, refusing to refer issues to a jury in this case.” Even if it should be conceded that the defendant, Mattie S. Gillam, was precluded by the order of his Honor, Judge Witherspoon, dated 23d March, 1893, from having a trial by jury, under section 274a of the Code, as to the issue tried by the jury before *355Judge Gary, this exception could not be sustained. Independently of section 274a of the Code, the Circuit Judge has the right, in a chancery case, to refer issues to a jury for the enlightenment of his conscience. Hammond v. Foreman, 43 S. C., 264. The order of Judge Townsend must be regarded as an exercise of this right. No doubt this was why Judge Witherspoon refused to vacate the order of Judge Townsend, and why Judge Gary decided the issue of fact which had been referred to the jury, which he would not have had the power to do if the issue had been referred to the jury, under section 274a of the Code.
2 The first exception to Judge Gary’s decree is as follows: “1. That his Honor erred in not ruling out, on the objection of plaintiff, as incompetent and irrelevant, the following testimony: (a) All the testimony of Mattie S. Gillam and J. B. Gillam, her husband, as to acts and declarations of Fred. T. Lockhart at the time of the transaction, tending to show whom he represented, 'and for whom he was acting in the transaction, the same being an attempt to prove agency, by the acts and declarations of the very person whose agency is the question at issue. (¿) All the testimony of Mattie S. Gillam and her husband, as to the agency of Fred. T. Lockhart with the plaintiff company, the same being conclusions and deductions drawn from the acts and declarations of the person whose agency is sought to be established.” This exception is too general for consideration, in that it fails to point out any particular error—Sims v. Jones, 43 S. C., 99—and for the further reason, it does not appear that the Circuit Judge ruled, or was requested to rule, on the competency of said testimony. If the Circuit Judge had been requested to rule on the competency of said testimony, and had failed to do so, the proper exception would have been to complain of error on the part of the Circuit Judge in failing to rule upon its competency, but not of error in not ruling out said testimony. Willis v. Tozer, 44 S. C., 16.
*3563 *355But even waiving all technical objections to the excep*356tion, it cannot be sustained. J. B. Gillam and Mattie S. Gillam both testified that i/ockhart was acting as the agent of the Corbin Banking Co., but neither of them testified to any declarations of Lockhart that he was the agent of plaintiff or any one else. The acts of Lockhart, tending to show whom he represented, were competent evidence, to be considered, in connection with the other facts in the case, in determining the question of agency.
4 The second exception to Judge Gary’s decree alleges error in holding that the contract sued on was usurious. In reaching a conclusion upon this question, it is very important to determine whether the Corbin Banking Co. was the agent of the plaintiff in negotiating the loan. After carefully considering all the testimony in the case, the Court is of the opinion that the Corbin Banking Co. was the agent of the plaintiff in negotiating the loan, and that it was in pursuance of a scheme on the part of the plaintiff and the Corbin Banking Co. to evade the usury laws; and, as might naturally be expected in such cases, the question of agency has, to a great extent, to be shown by circumstances instead of direct evidence. Without attempting to detail all the circumstances inducing such belief, we will mention some which are very material: The witness, J. B. Gillam, says: “ * * * that the interest called to be paid in 1887, 1888, 1889, and 1890, he paid by sending to the Corbin Banking Co, * * * Every time that witness would send this money the Corbin Banking Co. would send him back an interest coupon * * * The plaintiff never called upon him for any money. All the communications were from -the Corbin Banking Co.” To the same effect is the testimony of Mrs. Mattie S. Gillam. The circular and the letter of' the Corbin Banking Co. to Mrs. Gil-lam, marked “exhibit 2” and “exhibit 3,” which will be set out in the report of the case, also tend strongly to prove agency on the part of the Corbin Banking Co. The testimony tended to show that all papers were prepared by the *357Corbin Banking Co., that they sent the money to be disbursed, collected all interest for the plaintiff, sent the coupons to the defendant, Mattie S. Gillam, when they were paid, required all the money to be paid to the Corbin Banking Co., and all communications were to be addressed to said company. The testimony also showed that the plaintiff made other loans through the Corbin Banking Co.
5 Having determined the question of agency, we proceed to consider the question of usury.. The mortgage sued upon was executed on 1st January, 1887; to secure note of 24th December, 1886, for $1,000, payable in five years, with annual interest until paid at the rate of eight per cent, per annum, unpaid interest to bear interest after maturity at the rate of ten per cent, per annum, and also an attorney’s fee of ten per cent, of the principal and interest due, as provided in the notes and .mortgage. When the loan was consummated, the Corbin Banking Company deducted • commissions, amounting to $200, besides other sums hereinafter mentioned. This was done with knowledge on the part of the plaintiff. Under the case of Brown v. Brown, 38 S. C., 173, these facts constitute usury. The appellant asked and was granted leave to review the case of Brown v. Brown, supra. This case has been affirmed in subsequent cases by reference to its authority; and, after careful consideration, this Court sees no reason to depart from its principles. The appellant’s attorneys contend that even if the contract was rendered usurious by deducting the $200 commissions, still it was not usury for the plaintiff to receive the interest, as it did not exceed ten per cent, per annum on the amount which the defendant, Mattie S. Gillam, actually received, to wit: $800 — the law at the time of the contract allowing the lender to charge ten per cent, where it was expressed in a written instrument. There might be force in this argument were it not that the agreement as to commissions and the payment of interest formed parts of a single transaction. Sections 1390 and 1391 of the Rev. Stat. are as follows: Section 1390. “No greater *358rate of interest than (7) seven per centum per annum shall be charged, taken, agreed upon or allowed upon any contract arising in this State for the hiring, lending or use of money or other commodity, except upon written contracts, wherein, by express agreement, a rate of interest not exceeding eight per cent, [formerly ten] may be charged. No person or corporation lending or advancing money or other commodity upon a. greater rate of interest shall be allowed to recover in any Court in this State any portion of interest so unlawfully charged; and the principal sum, amount or value so lent or advanced, without any interest, shall be deemed and taken by the Courts of this State to be the true legal debt or measure of damages, to all intents and purposes whatsoever, to be recovered without costs. * * Section 1391. Any person or corporation who shall receive as interest any greater amount than is provided for in the preceding section shall, in addition to the forfeiture therein provided for, forfeit, also, double the sum received, to be collected by separate action or allowed as a counterclaim to any action brought to recover the principal sum.” Usury as to the $200 commissions falls within the provisions of the section first set out, while that arising from the receipt of unlawful interest comes within the other section. Under the first section, the lender can only collect the amount actually advanced without costs; but under the second section, the lender receiving unlawful interest shall also forfeit double the sum so received, collectable in a separate action or allowable as a counter-claim to an action to recover the principal snm.
6 The third exception complains of error on the part of the Circuit Judge in overruling the plea of the statute of limitations. The appellant contends that the claim for an usurious charge of interest is in the nature of a penalty, and is barred after three years before the Commencement of the action. This view is in direct conflict with section 1391, supra. Under that section the party who has paid usurious interest has two remedies, one is to *359bring a separate action, and the other is to set up a counterclaim to the action for the sum lent to him. Without undertaking to say what effect the statute of limitations would have, where a separate action is brought, the statute of limitations has no application to this case.
7 The next exception complains of error on the part of the Circuit Judge in not allowing the counsel fee provided for in the mortgage. The intention of section 1390 is to allow the plaintiff to recover only the sum actually advanced; and to allow a fee for foreclosure of the mortgage would be to add to the statute. The plaintiff is not even allowed costs, and for as strong a reason counsel fees cannot be allowed.
8 The fifth exception questions the correctness of his Honor’s'ruling in regard to the insurance. This exception is partly disposed of by what has been said herein-before as to agency. The facts show that the plaintiff was bound by the agreement, and we will proceed to consider whether there was error as to the amount allowed. The fifth section of the mortgage shows that the property was to be insured to an amount equal to one-third of the principal of the loan. The true principal of the loan was |800. One-third of $800 is, therefore, the amount which should be allowed, with interest from the date of the fire.
The sixth exception cannot be sustained, because the defendant, Mattie S. Gillam, was not notified that the property had not been insured.
It is the judgment of this Court, that the judgment of the Circuit'Court be modified as to the amount due for failure to insure the property, but that in all other respects it be affirmed.
Mr. Justice Pope concurs in the above opinion.