Nov. Term, 1854. BOWEN V. JOHNSON. Per Curiam.-The decree is reversed with costs. Cause remanded, &c. J. A. Wright, E. W. McGaughey and A. A. Hammond, for the plaintiff. W. P. Bryant and A. L. Roache, for the defendant. (1) The opinion delivered in this case was accidentally omitted by Mr. Carter, and should have appeared in 1 Ind. Reports; and it is here inserted for the convenience of the profession. END OF NOVEMBER TERM, 1854. CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, MAY TERM, 1855, IN THE THIRTY-NINTH YEAR OF THE STATE. SHOOK and Others v. THE STATE, on the relation of STEVENS, Auditor, &c. Nil debet is bad in debt on a bond. The board of commissioners, treasurer, auditor, or any other officer who was charged by the R. S. 1843 with the duty of protecting and preserving the surplus revenue fund, was a proper relator in a suit on a bond given to secure a loan from that fund. In a suit on a surplus revenue bond, an allegation in the declaration that the suit is brought "for the use of the surplus revenue fund," is mere surplusage. The pleader, in a suit on four surplus revenue bonds, (which contained a stipulation that in case of a failure to pay any instalment of interest, the principal should become due and collectable, &c.,) stated the action to have accrued upon the non-payment of the annual instalments of interest; but the action was not brought until the principal on the last of the several bonds was due, and there was a breach to each count in which the nonpayment of the bond was averred. Held, that the defect, if any existed, was cured by the breaches last named. The surplus revenue fund belongs to the United States, but is held in trust by the state, who is the legal custodian thereof; and the averment, in a suit on a bond to that fund, that the bond had not been paid to the state, is sufficient. A defect in the mere form of a declaration can not be examined on demurrer to a defective plea. VOL. VI-8 May Term, The R. S. 1843 allowed interest to be taken on loans of the surplus revenue, 1855. SHOOK V. THE STATE. Monday, at the rate of 7 per cent. per annum in advance; and the statute fixing the rate of interest generally, and defining the offence of usury, expressly excepted from its operation those provisions of law which related to the loaning of the trust funds of the state. The bonds declared on in this case were substantially in the form prescribed by the statute to be taken on loans of the surplus revenue, and there was no averment in the pleas that they were made upon any other consideration. Held, that the presumption was that they were given for money borrowed from that fund. To a declaration upon an instrument which does not appear on its face to be An agreement with the principal to enlarge the time for the payment of a debt, It appeared in evidence, in the present case, that the bonds sued upon were ERROR to the Ripley Circuit Court. GOOKINS, J.-Debt on four writings obligatory under seal, dated January 23, 1845, one for 100 dollars, due January 23, 1846; one for 100 dollars, due January 23, 1847; one for 100 dollars, due January 23, 1848; and one for 387 dollars and 42 cents, due January 23, 1850. These obligations were made by David P. Shook, Peter Shook, and Hezekiah Shook, sen., payable "to the state of Indiana, for the use of the surplus revenue fund of the county of Ripley." They were joint and several, and conditioned for the payment of 7 per cent. interest per annum in advance, from date, with a stipulation that in case of a failure to pay any instalment of interest, the principal should become due and collectable, with all arrearages of interest; and that on failure to pay the principal or interest when due, 5 per cent. damages should be collected on the whole amount, and costs. The action was brought on the 26th day of March, 1851, against David P. and Peter Shook, the other party being dead. David P. Shook made default. Peter Shook pleaded six pleas, on the second and third of which issues were joined, and to the first, fourth, fifth and sixth, demurrers May Term, were sustained. There was a trial of the issues joined upon the second and third pleas, which resulted in a verdict for the plaintiff for 687 dollars and 42 cents debt, and THE STATE. 169 dollars and 6 cents damages. Motion for a new trial overruled, and judgment on the verdict. 1855. SHOOK V. The first subject which demands our attention is, the issues of law arising upon the demurrers to the first, fourth, fifth and sixth pleas. The first, being a plea of nil debet, was evidently bad; but the plaintiff in error seeks through it to attack the declaration. One objection taken to the declaration is, that the suit is brought "for the use of Ripley county," and "on the relation of the county auditor," and the case of The State, ex rel., &c. v. Votaw, 8 Blackf. 2, is relied on in support of this objection. It was decided in that case, that the county treasurer was a proper relator, where the action was brought to recover a portion of the surplus revenue to which the county was entitled. We think that decision correct; but it does not follow that no other person could properly become a relator. It was as much the duty of the auditor, by law, to protect and preserve this fund as of the treasurer. R. S. 1843, pp. 251, 252, 253, ss. 97 to 103. We think the board of commissioners, the treasurer, auditor, or any other officer whom the law charged with the duty of protecting and preserving the fund, might properly be a relator, and that the declaration was unobjectionable for the reason alleged. The statement that the suit was brought "for the use of the surplus revenue fund," is of no consequence; it might be rejected as surplusage. Another objection taken to the declaration is, that the breach is insufficient, because it states the action to have áccrued upon the non-payment of the annual instalments of interest. It is true the pleader has so laid his breaches; but as this action was not brought until the principal on the last of the several bonds was due, and as there is to each count a breach laid, in which the non-payment of the bond is averred, the defect, if any, is cured. May Term, 1855. SHOOK V. It is further objected that the breaches are insufficient, in failing to allege the non-payment of the money to the county of Ripley. This objection is answered by the fact THE STATE. that the money did not belong to the county of Ripley. It belonged to the United States, but was held in trust by the state, who was the legal custodian of the fund. The averment that it had not been paid to the state was sufficient. The declaration is good in substance, and no defects of form can be examined when it is attacked by means of a demurrer to a defective plea. The fourth plea is actio non, as to 500 dollars of the principal, and all the interest in said bonds mentioned, and all costs, because the said writings obligatory "are usurious, as therein stated," and the said David P. Shook has paid interest thereon amounting to 500 dollars, before the commencement of this action. The fifth plea is actio non as to 206 dollars and 36 cents of the principal, and all interest and costs, because the said David P. Shook, before the commencement of this suit, paid the plaintiff the said sum of 206 dollars and 36 cents as interest at 7 per cent. per annum on said bonds, which was usurious. The question arising upon the demurrer to these pleas is, whether the bonds set out in the declaration are usurious upon their face. We think they are not. At the time they were made, interest might lawfully be taken upon loans of the surplus revenue, at the rate of 7 per cent. per annum in advance. R. S. 1843, p. 251, s. 95.—Id. 244, s. 36. And the statute fixing the rate of interest generally, and defining the offence of usury, expressly excepts from its operation those provisions of law which relate to the loaning of the trust funds of the state. Id. 583, s. 38. The bonds declared on are substantially in the form prescribed by the statute to be taken upon loans; and in the absence of any averment in the pleas that they were made upon any other consideration, the presumption is that they were given for money borrowed from that fund, and, consequently, it was not usury to reserve and take interest upon them at the rate of 7 per cent. per annum in advance. |