| Me. | Jun 15, 1841
The opinion of the Court was delivered by
The surety on the promissory note, which has been paid, can have no interest in the event of this suit. If he be excluded, it must be because he was a party to it. The rule asserted in the case of Churchill v. Suter, would not exclude him; for the controversy here is not between an innocent holder of negotiable paper and a party to it, but between the original parties. And- to such a case the rule does not apply. Fox v. Whitney, 16 Mass. 118" date_filed="1819-09-15" court="Mass." case_name="Fox v. Whitney">16 Mass. R. 118; Van Schaack v. Stafford, 12 Pick. 565. In this case, the note can hardly be said to be even collaterally in controversy between them. The plaintiff paid the illegal interest secured by the note to John Wilshire, who had paid it to the defendant. The fourth section of the Statute of 1834, c. 122, did not require, that the payment should be made by the plaintiff to the defendant in the action without any intervention. It is sufficient, that the party against whom the suit is brought, being the lender of the money, should have received the illegal interest; and that the party, who institutes the suit, should have paid it. The one who suffers the loss, is allowed to reclaim the amount of it from the one who has been the gainer by it. Having been thus illegally received, it may be recovered back in an action for money had and received, for the statute does not prescribe the form of the action. Exceptions overruled.