10 Ala. 302 | Ala. | 1846
Where a higher rate of interest than eight per cent, shall be taken or received, under any contract, the act of 1819 declares, that there shall be a forfeiture of the entire debt, &c. with all interest thereon, “ one half of which forfeiture shall be paid into the public treasury, for the use of the State, and the other half to him or them that will inform or sue for the same, to be recovered with costs, by action of debt, in any court of record in this State: Provided, that if the borrower should be the informer as aforesaid, the whole amount thus recovered shall be paid into the treasury, for the use of the State. Provided, also, that every such action of debt as aforesaid shall be commenced and sued in the lender’s life-time, or within three years after the commission of the offence, or in one year after the time, of payment of any money, goods, wares or merchandize contracted to be paid on any usurious agreement or contract.” [Clay’s Dig. 589, § 2.] This enactment has been so far modified by the act of 1834, as to make the interest only the forfeit, where a higher rate than the law authorizes is taken or received; but in other respects it remains in full force. [Clay’s Dig. 591, § 9.]
It may be conceded, that according to tfie principles, of the common law, the borrower of money, who has paid an excess above the legal rate of interest, may recover it in an action of indebitatus assumpsit; and further, that a statute in imposing a penalty, or forfeiture, and providing a specific remedy for its recovery, does not abolish the common law action which was previously appropriate to the case. But is it allowable to adopt the latter form of procedure so -lorig as the party is liable to the action prescribed by the statute. The case of Wheaton v. Hibbard, 20 Johns. Rep. 290, is most •explicit, and furnishes a negative answer to this question. Here we have seen that the limitation to the qui tarn action cannot be less than one year from the time of the reception of the usurious interest, unless the lender shall sooner die. If the writ may be compared with the special verdict, we discover that the present action was instituted within two
But does not the first proviso to the section of the act of 1819, which we have quoted, indicate the intention of the legislature that the borrower who had parted with his money should not be reimbursed the excessive interest? While it allows him to maintain the form of action which the statute designates, it declares that he shall not profit by the recovery, but in such a case makes the State the sole beneficiary of the judgment. This proviso, it is true, does not repeal the common law right of action, in totidem verbis, but (it is conceived) indicates the intention of the legislature, that the borrower shall not maintain any action for its reimbursement. If he were allowed to sue in assumpsit after the qui tam suit were barred, this intention would be defeated. ' To prevent such a result, we think it must beheld, that the action in the present case is not maintainable. This view is decisive, and we decline the consideration of the points raised at the argument. The judgment of the circuit court is consequently affirmed.
