
    Lyman Steward vs. Soloman Downer.
    Windsor,
    February, 1836.
    In a suit m the name of a common informer, to recover the penalty under ¡the statuto against usury, it must appear that the payment of money or other thing sought to be recovered was a voluntary payment and made in pursuance of a previous corrupt agreement.
    A decree of the county court, in an action of ejectment predicated on mortgage, even after it bocomes absolute and so the debt is paid, does not constitute such a payment as will enable the mortgagor or a common informer to recover the excess of lawful interest included in such decree.
    By such decree it would seem, that the usury is purged, and no subsequent procedings can be had,whereby the question of usury shall be again brought into discussion*
    If the contracting party n^ver had a right of recovery under that statute, no action can accrue to a common informer. .
    This is an action brought by a common informer to recover the penalty under the statute prohibiting usury.
    The summary of the case was this: — One Benjamin Clapp obtained a' loan of money of this defendant Downer upon usurious interest and mortgaged his farm in Barnard to secure the payment. On failure of payment Downer brought his action of ejectment for the farm, recovered judgment, and Clapp filed his motion to redeem-. The sum due upon the contract was ascertained, and a time of redemption limited. That time expired without payment, Ieavingdhe title absolute in Downer; This farm was shown to be worth as much at least as all the amount of the decree, including interest apd cost. After one year had expired without any suit by Clapp, and within a second year, this action was commenced by Steward. On trial the county court instructed the jury that the proof of these facts, if believed, did not entitle the plaintiff to recover. The plaintiff excepted to this instruction and the cause passed to this court.
    T. Hutchinson for plaintiff'.
    
    1. That Downer received land in pay for his usurious loan can form no valid objection to the plaintiff’s recovering ; for the statute is so broad as necessarily to include all kinds of property, if receivedjn satisfaction of anpisurious loan. The statute, first, prohibits the receiving either"l'in money, goods, or any other thing, and gives an action, within one year, to the person paying such money, or delivering such goods, or Other thing. If the person paying does not sue within a yea'r, and bona fide prosecute for the money so paid, or for the value of the goods or other things so delivered, any other person may sue for the same, within a second year. No argument can maké this mofe plain. If any thing but money is delivered, its value is to be recovered.
    2. We think, that Downer’s recovering the land by judgment of court, forms no defence to this action. This merely shows a cumpulsory payment by Clapp ; and the statute makes no exception in favor of compulsory payments, or payments 'alter adjudgment of court. The judgment for the land is no more conclusive against Clapp, than]would have been his voluntary relinquishment of his equity of redemption’iif discharge of the debt; which he’ might have done by a quit-claim deed. Clapp may possibly have neglected to defend the action of ejectment through want of evidence to prove the usury. Or he may have, colluded with Downer in covering up the1 usury by a judgment as well as in making the usurious contract. Indeed¿thatpprovision of the statute, under which any third person may sue during a second year, goes upon the suppositipn, that the person paying the usury either is unable to furnish the proof to defend a suit upon the usurious contract, or supportaffaction to fecover back the money paid, or else-colludes ívith the person receiving the usury. The object of the statute is to protect the'weak and the necessitous, against the powerful and avaricious. It places its guards upon]all sides ; first, forbidding the’taking of excessive interest; second, making the usurious’contract void. This would’-'require proof in defence of an action upon the contract; third, allowing ^the person paying]’to recover back the usurious part; and, fourth,^if the person]paying lacks evidence to defend or support his rights, or should collude with the person receiving the usury, or should be deterred by him from seeking his remedy in either way, any other person .may sue’ and recover.
    
      Heve it will be observed, that n.o two of these remedies, are .concurrent; but are successive .of .each other. Tb.e first r.em.edy js, to prevent tlie payment of tb.e mop.ey, Bpt no suit lies to recover back the money or other property, till it is paid. It is the receiving the money or other thing, that makes the receiver liable. Hpisnof obliged to receive it, if lie is able to deter th.e debtor from his derr fenpe. If he does receive it, he dops if af the risk .of a spit .to re? pover it back. Let it once bp understood, that a judgment Govers the usury so dppp as never to be dug out, and that wjll be a coyer for all usury. A judgment by .confession will be as ayailable as a judgment in a regular suit, This suit against Downer is brought for that which did not exist when he recovered judgment against Clapp. Jt yas not, nor copld if bp, litigated in that suit, is pow charged with receiving the property, wbiph hp was then seeking to get.
    We present the case upon a reasonable construction of the statute, finding no cases ip point. And it does appear to us, either that the judgment in ejectment authorized the defendant to commit a breach pf the law, which was not committed till thp expiration of the time of redemption given to Clapp in (he ejectment suit, or that |"¡e is liable in this suit for the breach of law, committed by him after the judgment. The mPrtgagP was but a security for the debt, and the judgment upon it a conditional pne, till the time of Redemption expired. .-V
    The plaintiff cannot he affected by any neglect of Clapp. lie j§ as a stranger to the judgment. — 2 Stark- Ev, §86-7,
    See 15 Mass. R,, —— vs. Miller-, where money paid tq satisfy a judgment was recovered back, said judgment still remaining unreyersed.
    
      A. Ailcen for defendant.
    
    1. The plaintiff is not entitled to recover. The “ other thing,” which the defendant is charged in the declaration with having corruptly and usuriousiy received of one Benjamin Clapp, is a farm of land.
    
    He has been placed in the possession of that farm by the act and force of law, in execution of a regular judgment and decree of foreclosure.
    This would he conclusive upon the original parties to the con-fiAC.t, upon which that judgment was had. — 2 Caines 150. — Cow-an’s Just. 14‘Thatcher et al. Executors vs. Gammon, 12 Mass. R. 268.- — Bearer ys. Barsiow, 9 Mass. R. 48. — Flint vs. Sheldon, 13 Macs. P 452.
    
      If is also' conclusive noon a Sharker seeking- bis prey imder thé . . ,. i _v 1 o i j statute,- (p: 163,• s'. 2/
    The law gives to' this' character a: light' óf action, ri'of on the' ground' of restoring- to ah- injured1 party that which has beéiV unlawfully taken1 from him,-and so doing- justicé vvhéré i'njtis'ticé lias been suffered, bti’t for thé" púr'pos'é solely of pú'tiishfnént, to him Who did' t'he' injustice; ft is' thé infliction1 of a: penalty,- afi'd' the prosecution' though civil' ih form,- is criminal iñ' sifbstahce and éfféc't: The-statute' is,- therefore,- fo‘ be construed strictly.'
    Tlié-popular right' to' prosecute' ib given by tlié statute,'oiily upon the négtacf to prósécuté,' ór a; cóvinoú's discontinuance of a'pfos-écutiori by the party to the ti'siify,-who wa's injured' by itV'
    Where there i's tib legal' right of action' ,t'o be' neglected,’ fhe’ré' can'h'e do neglect; consequently,'thé right' of aetibri; b'eibg extinguished; of iVever having accrued' as' fo the Original party,' it' is so' tib’ to all' otbérs'.
    2. The' fecéipt,' or satisfaction of a1 coritfact,' h'póri'a'fbrécl'osbféj' so far as if cah'be said'to'be a: satisfaction;'is" by operation of law,' ánd: nbf by act' of the parties.
    Tlié law cab' never punish d' nian‘ for acting iii abediéhee fó it's ówñ- decree.- . ...
    The acceptance óf fita farin' was in’ satisfaction of the judgment Which was a' tille óf féóófd, made absolute by thé’ jiidgritarif, nót’ depéiidari’t for its dbilsfildanf (Qualities, upon íüiy dgréémérif óf fhé parties,'but lijioii facis" found upóri thé trial1 aiid' purged of all úhlawfüliiéss", (if atiy bad existed,} b.y tlié judgthéiil' itself, Arid1 if Was" riot a- taking-’’ or “ receiving” óf any thing upon the con1 tract1 óf thé' parties,' fof that' wdb'extinguished by the judgrtieiif.
    Thé'jutlg'mcnt' giv'es filé title,'aiid liot thé dééd. The effect’ of éfery final jlidgnidht,'is" fo liifefge the causé'of action!'
   ■3?hd opiiiio/i'df tiie’cddrt' wai delivered'by

Rebi-ield',' J’.

It is appálém5 froiri1 thé texAris'’ of1 the' statUtfe,' áhd subir ihttaéd,'hab' taiig-been'the settled' CótiStrüCtióh'of similar' statbfes",'fiigt'fhé páyniéhtytó cónsiitut’é üsiiry,'must' lie" in' ptffsti1" aticé of a1 pfévioüs'corrupt'agreement1.' If is" riot íiéCéssary tip' ill1 quire whether the paymerit'riiiist' specifically correspond' With'thé' terms' of the' contract. It riíuát5 bé . a! Voluntary' pay ífiént’, arid1 a1 payment niadé in'éonsuníiiiátióri'of the' previous corrupt' bargain;'

Ih'this'case it'¡¿"apparent the' original' có.nir'act' wa's ^sufficiently' corrupt'1 ahd' usiifiods blit'1 it'is”equally evident tha’i;' no' voluntary páy'nbéntta'ri'tlia'f'c'tíriti'ac’t1 Irás’ bééri' riiadé." Tlié décf'e'é df ftirtt-' c^osure anc* possession of the mortgaged premises taken under it, no doubt operates as a payment of the entire debt if the premises be of sufficient value ; if of less value than the mortgage debt, then a3 paym.ent pro tanto. But this is a payment by operation’of law, and strictly in invitum. It is by virtue of ¿ decree made on motion of the debtor. But as the county court have pro hoc vice, chancery powers, we see no good reason to make- a distinction between this case and that of a docree in chancery. — Strong vs. Strong, 2 Aik. 373, and Lovell vs. Leland, 3 Vt. 581. There is no very obvious reason why any such distinction should be made,

And ^is presents another formidable objection to the plaintiff’s •recovery. This decree is to all intents a judgment, and as between the parties to the judgment, every defence to the original suit is foreyer put at r,est. Tii.e validity of the judgment cannot be again examined. The usury is as effectually purged as if the parties had by agreement deducted the excess of interest from the security, which has always been held to purge {h,e usury,

And if by the operation of the decree the party aggrieved is barred of any right to sue for and recover back the excess of interest, then no such right ever existed. Of course it could not hgye been delayed for “ one year” as the statute seems to pre-sup-pose in the remedy given to a common informer. And the statute only gives the common informer the same remedy which the party paying the usury had had, which in the present case is none at all.

And should we permit this plaintiff to recover, it must involve the absurdity of re-examining the former decree, which can no more be done in this case than if the suit had been brought in the name of the original debtor.

In every view of the case the judgment of the court below was clearly correct, and is affirmed.  