Hubbell v. Gale

3 Vt. 266 | Vt. | 1830

Prentiss, C. J.,

delivered the opinion of the court. — By the act to prevent usury, it is declared, that the person, from whom usurious interest shall be taken, shall be at liberty, at any lime within one year thereafter, to sue for and recover back the money paid, or the value of the goods or other thing delivered, above {{jg ra(Q prescribed, in an action of assumpsit, declaring for mon-ay had and received, or goods sold and delivered, as the case may ke and on his neglect to sue and prosecute with effect, it is made lawful for any other person, within one year after such neglect, by any such action or suit aforesaid, to sue for and recover the same, in manner aforesaid, against the person who shall have taken or received the same. [Comp. Stat. p. 163. s. 2.) The provisions, which allows the party paying the usury to recover back the amount, under a general count in assumpsit for money had and received, is in accordance with common principles, and what the common law itself would authorize. In such case, there is a contract or privity existing between the parties, and the law, independent of the particular provision of the statute, would imply a promise to refund the money. A liability on the part of the defendant to pay, and a right of action in the plaintiff to recover, arise and vest.immediately on the receipt of the money ; and the general form of declaring, for money had and received to the plaintiff’s use, is consistent and proper. But where the action is brought by a stranger, the party paying the usury not having commenced his suit within the time limited by the act, it is, to say the least, somewhat of a novelty,if he may declare and recover, under the statute, upon a general count in assumpsit, for money not originally received to his use, and in which he has no interest before the commencement of his action. As there is no contract or privity existing between him and the defendant, but his right of action is derived entirely from the statute, consistency and propriety, as well as the general principles of pleading, would seem to require, that he should declare specially and slate the particular matter upon which his cause of action is founded. But perhaps the statute is too plain and explicit, to admit of any doubt, that a general count, not referring to the statute, is sufficient.

But whatever may be the form of the action, if it is founded entirely upon tho statute, and the object of it is to recover a penalty or forfeiture, it is a penal action. The first section of the statute prohibits the taking of more than six per cent, interest, and the taking of more is an offence against the statute. The second section gives to the person paying the usury, the liberty, within one year, to sue for and recover it back ; and on his neglect, any other person is authorized, within one year thereafter, to sue for and recover the same. As it respects the party paying the usury, the action is like an action on a contract to recover a debt already due, and is clearly not of a penal nature. The party has a right on common law principles to recover back the money, and the statute saves the right to him for one year; but if he does not avail himself of his right within that time, then the amount of the usury is given,as a forfeiture, to any one who will sue for the same. The statute is partly remedial,and partly penal; remedial, as to the right given to the party paying to recover back the money,and penal,as to the right given to any other person to sue for it on his neglect. Where a statute gives an action to a stranger to recover a forfeiture, he is a common informer,and the action a penal action; though it is otherwise, where the statute gives damages, either single or accumulative, as a compensation to the party aggrieved. By the act “fot the limitation of suits on penal statutes, criminal prosecutions and actions at law,” when any action is commenced for any forfeiture, upon any penal statute, the benefit whereof is limited, in whole or in part, to the person or persons who shall inform and prosecute in that behalf, the clerk or magistrate, who signs the original writ, is required, at the time of signing the same, to make a minute in writing, under his official signature, on the writ, of the true day, month, and year, when the same was signed ; and every original writ, on which such minute shall not be made, is declared to be void. {Comp. Stat. p. 288. s. 1, 2, 5.) This provision applies to popular actions, or suits commenced by a common informer, and we have already observed, that whenever a penalty or forfeiture is given to any one who will sue, the action is a popular action, and the plaintiff a common informer. Under the 31st Elis. c. 5. s. 5., which limits the bringing of actions for any forfeiture, upon any penal statute, the benefit whereof is limited to the-king and the informer, different opinions have been entertained,, whether a suit by a common informer, where the action is first given to the parly aggrieved, and in his default, after a certain-time, to any one who will sue, is within the act. (Bull. N. P. 195; 1 Tidd’s Prac. 14,) But as the act of this state embraces all actions for any forfeiture, the benefit of which is limited, in whole or in part, to the person or persons who shall inform and prosecute, there can be no doubt but that the words of the act extend it to the case before us; for though the action is given in the first instance to the party aggrieved, it is afterwards given to any one who will sue.

Judgement affirmed.