The action was assumpsit for money had and received, in which the plaintiff sought to recover the excess above the principal and lawful interest, paid by him upon a contract alleged to have been made between the plaintiff and the defendant's intestate and to have been usurious. The pleas (529) were, non assumpsit and the statute of limitations.
The bill of exceptions is very long, containing the statements of much evidence and many points raised on the part of the defendants, against whom there was judgment. But it is unnecessary to state them, as the decision of the Court is on the single point following. The verdict is in these words, "who find all payments within three years, either on notes given before or otherwise, with interest thereon, in favor of plaintiff, to wit, $558 and $100, with interest on the same." Upon that verdict judgment was entered for the plaintiff for the sum of $938.34, of which $658 bears interest from 10 October, 1847, till paid, and costs; and therefrom the defendants appealed. From reading the case appearing in the record, it would seem extremely difficult for the plaintiff to get on at law under the circumstances, whatever may be his merits, or however clear his remedy might be in another court. But we do not wish to prejudge the questions that may arise hereafter, and therefore the Court will not consider the points made at the trial, since under no circumstances can the verdict and the judgment be sustained as they are found in the record. The judgment does not correspond with the verdict, being for a much larger sum than that mentioned in the verdict. We suppose that addition is for the interest indicated in the verdict; but, supposing that that could be calculated by the clerk of the court, if the periods for which it accrued were designated, the verdict contains no such designation, and, therefore, there is nothing to govern in making the calculation. Besides, the verdict (530) is in itself insufficient and insensible. It does not pass on the issues joined and assess damages to the plaintiff; but, unintelligibly, finds in favor of the plaintiff all payments (by whom or to whom is not said) within three years (from what time is not said), either on notes given before or otherwise (which is past comprehension), with interest thereon, viz., $558 and $100, with interest on the same (from or to what day, is not specified). Such a verdict cannot authorize any judgment, for even the sums mentioned in it are not assessed as damages due to the plaintiff, but found as payments in his favor. The judgment must therefore be reversed, and a venire de novo awarded.
PER CURIAM. Judgment reversed, and venire de novo.