10 Barb. 576 | N.Y. Sup. Ct. | 1850
In this action several questions of interest, some of which are not free from difficulty, are presented for our decision; and although they were elaborately and ably presented by the counsel for the respective parties, we' do not deem it important in the reasons which we give for our decisions, to examine them much in detail. We are of the opinion that the judgment entered upon the direction of the judge at the circuit should be affirmed, for the following reasons, among others:
II. If the bonds and mortgages were transferred and delivered in payment and satisfaction of the usurious debt, or in execution and discharge of the usurious contract, as we have supposed, this action can not be sustained, but is barred by the statute of limitations. (1) After payment of a usurious debt, the money can not be recovered back; but under the statute the party may recover the excess paid beyond the principal and legal interest actually due. (Vide opinion of Bronson, J. supra, and authorities cited.) (2) It is not material that an action for money had and received would not have lain until the money had been actually received, as was strenuously urged by the counsel for the plaintiff, and from which he argued that the cause of action authorized by the statute accrued at that time,
III. The moneys paid by Schroeppel in satisfaction of his bond, were paid upon and in pursuance of a judgment recovered in an action upon the bond. The parties are estopped by the judgment, and can not inquire into"the consideration of it, or recover money paid upon it. The remedy of the obligor was by a defense of that action. (Thompson v. Berry, 3 John. Ch. R. 395. Bartholemew v. Yaw, 9 Paige, 165.)
Without further examining the questions already suggested, or considering those made by counsel, we think the judgment should be affirmed.
Judgment affirmed.