
    Wheaton against Hibbard.
    A borrower, who has paid more than the interesta¡s not confined to the remedy given by the statute ry^but1 may tionS of as' sumpsit for and^received, law to°™cover the excess of interest; but to entitle him the actkn^he r?ust i, show paid, or offered to pay, all the principal really lent, with the lawful interest.
    Where the lender does not raise the objection at the trial, that the principal and legal interest had not been paid by the plaintiff, but rests his defence on other and different grounds, the Court will, from his silence, intend the fact of such payment; and he cannot aft^wards make the objection, when thd cause comes up for review, on appeal or writ oferror0
    IN ERROR to the Court of Common Pleas of Onondaga county. Hibbard brought an action oí assumpsit against Wheaton in a Justice’s Court. The declaration contained the common money counts, to which the defendant pleaded . e v * non assumpsit, with notice that the money received by the defendant was for excess of interest above the lawful rate of interest in The Justice gave judgment for the plaintiff for thirty-five dollars, damages, and three dollars and sixty-nine cents, costs. Wheaton appealed from this judgment to $6 Court of Common Pleas, pursuant to the act. (Sess. 41. ch. 94.) On the return to the appeal, in the Court of . 7 Common Pleas, a jury was summoned to try the issue between the parties. The jury found a special, verdict, stating that on the first of April, 1816, H. paid to W. thirty-five dollars for interest, over and above the lawful rate of interest, on one hundred dollars for one year, then owing from H. to W., for the forbearance of one hundred dollars for one year following, and which sum of thirty-five dollars W. corruptly and usuriously, against the form of the statute, &c. extorted and received from H. for excess of interest above the legal rate of interest, &c.; and that on the second of April, 1817, H. paid W. ten dollars for excess of interest over and above the legal rate of interest on two hundred dollars, for the forbearance of the said sum for one day, and which was extorted and received from him by W. corruptly'and usuriously, contrary to the form of the statute, &c.; and that both of the said sums of money were paid by II., and corruptly and usuriously received by W., more than one year before the commencement of the said suit by II. against W. before the Justice, and from whose judgment there was an appeal to the Common Pleas, &c.: but whether or not, upon the whole matter, the said W. did assume and undertake to repay the said II the forty-five dollars so corruptly and usuriously received by him, the said W., or whether an action of assumpsit will lie in favour of H. to recover the said money, &cc., the jury are ignorant, 8tc.; leaving the questions of law for the Court to decide. The Court of Common Pleas gave judgment for the appellee, II., for forty-five dollars, damages, and twenty-six dollars and ninety-six cents, costs. And on this judgment a writ of error was brought, returnable to this Court.
    
      V. Birdseye, for the plaintiff in error,
    made the following points:
    1. That the damages exceed those laid in the plaintiff’s declaration.
    2. That it did not appear, that an appeal was taken from the Justice’s judgment, or notice thereof given.
    3. That the plaintiff below recovered less than fifty dollars, and yet recovered costs.
    4. That the plaintiff’s action should have been debt, not assumpsit.
    
    5. That the action was brought more than one year after the payment of the money.
    
      6. That there was no assumpsit proved, and no grounds are stated by the jury, from which an assumpsit could by law be implied.
    He cited, statute 1 N. R. L. 64. Bac. Abr. tit. Usury, G. Bac. Abr. tit. Statutes. 13 Johns. Rep. 191. 1 Term Rep. 153.
    
      Kellogg, contra.
    —He cited, 2 Comyn on Cont. 113. 1 Boss. & Pull. 296. Doug. 696. note. Cowp. Rep. 200. 3 Inst. 150. 8 Mass. Rep. 101. Str. Rep. 915.
   Spencer, Ch. J.

delivered the opinion of the Court.

The recovery in the Common Pleas, was more than in the Justice’s Court. The counsel for the plaintiff in error give up that objection, and also an objectiori as to costs, these points having been decided against him. The points reserved by the special verdict, and submitted to the Court, are, 1st. Whether an action of assumpsit will lie after a year, in favour of the person paying usurious interest; and, 2d. Whether the law, under the facts found, presumes a promise ? The plaintiff’s counsel have raised a third point, that the action could not be maintained without proving payment of the money actually due.

The, statute to prevent usury, (I N. R. L. 64.) after regulating the rate of interest, authorizes the party, paying usurious interest, to Sue for and recover the excess above seven per cent., within one year then next, with costs of suit, in an action of debt, founded on the act; and it prescribes a succinct form of declaring. It then provides, that if the person paying usury, shall not, within the time aforesaid, really and Iona fide commence his suit for the money so paid, or suffers it to be delayed or discontinued, then "it shall be lawful for any other person, within one year after such neglect, to sue for and recover the same, in manner aforesaid, one moiety whereof is given to such person, and the other moiety to the use of the poor of the town in which the offence is committed.

This provision is peculiar to our statute. By the 12 Anne, ch. 16. the party receiving more than the legal rate of interest, forfeited the treble value of the moneys or other things lent. It is contended,, that the person who pays above the legal rate of interest, is confined to the statute remedy, and that he must not only sue in an action of debt, but that the suit must be within one year, or he is for ever precluded. Now the principle is, that where a party has a remedy at common law for a wrong, and a statute be passed, giving a further remedy, without a negative of the common law remedy, expressed or implied, he may, notwithstanding the statute, have his remedy by action at common law, (1 Com. Dig. Action on Statute, C.) There are no words in: the statute, either expressly or impliedly, negativing the common law remedy. The injured party cannot have both remedies, and if he neglect to pursue the statute remedy for more than a year, his right of action at common law would be suspended during the second year, for, peradventure, a third person may prosecute. But, in the present case, the excessive interest was received in 1816 and 1817. It was incumbent on the defendant to show, had the fact been so, that he had been sued within the second year ; and not having shown this, the statute remedy is gone. It is undeniable, that a party who- has paid excessive interest may, at common law, recover the excess, in an action for money had and received. The law considers the borrower rather as a victim than an aggressor. The statute prohibits usury, in order to protect needy and necessitous persons from the oppression of usurers, who are eager to take advantage of the distresses of others, and who violate the law only to complete their ruin. In such a case, the maxim of potior est conditio defendentis, has never been applied. But the party injured cannot recover any part of the principal and legal interest; and to entitle him to maintain the action, he must show that he has done all that equity requires. (Bacon, Usury, G. 1 Term Rep. 153.) In this case, had the objection been made that the principal was unpaid, the defendant in error ought to have proved such payment. But the objection was not made; and it seems to me, that when the cause has been litigated on other and different grounds, we are to intend, by the silence of the plaintiff, in not making the objection, that the fact is, that the principal and interest have been paid. It is a salutary rule, not to suffer an objection to be made, when the case comes up for review. which might have been obviated, had it been made at the proper time. The principle, is sound, that the Court can intend nothing in a special verdict, but what is found by the jury. (1 Wils. 55. 1 Caines, 64.) This case, I conceive^ not to be within the rule. The excess beyond légal interest, was money to which the plaintiff in error had no right; it belonged to the defendant in error; and he shows a state of facts entitling him to it. Now, what rebuts the justice and equity of his case ? What deprives him of his right to regain what has been wrongfully taken from him ? The fact, that the principal and interest have not been repaid. That, then, is matter of defence to be shown on the other side; and as the negative could not be proved, it would be enough to state the objection, and throw it on the party to prove payment. But when the defence is not made, nor the objection stated, the inference is, that the fact did not exist. This is not inferring a fact; but it is rebutting a presumption. We are of opinion, therefore, that the judgment must be affirmed.

Judgment affirmed.  