The first question naturally in order in this action is, whether it is barred by the statutory limitation of one year.
On comparing the statute of 1787 (1 R.L. of 1813, p. 64) with the one of 1830, (1 R.S. 772,) it will be seen that their provisions on this subject are substantially the same. The only differences between them are two. 1. In the old act, the form of the action in which the excess above lawful interest was to be recovered was prescribed, while in the new one, it is not. 2. In the old act, the suit for the benefit of the poor was limited to one year, and in the new one, to three years. These differences have no bearing on the inquiry whether the legislature intended, by giving the remedies mentioned in the statute, to abolish the remedy which the borrower had at common law.
The decision in Wheaton v. Hibbard (20 John. 292) was made in 1822, and is directly and pointedly in favor of the position that the old statute did not impair the common law remedy. With this decision before them, the revisers did not recommend, nor the legislature adopt any change or provision, indicative of an intention to alter the law on the subject.
The case of Wheaton v. Hibbard is therefore decisive of the question under consideration, and settles it in the negative.
The next question is, whether the action of trover for the securities, being barred by the statutory limitation of six years, this action, being for moneys received on those securities within six years of its commencement, is also barred.
On an examination of the authorities, I find two decisions, by highly respectable courts, directly in point and in the negative. One by Sir John Leach, vice chancellor of England, (Hovey v.Hovey, 1 Sim. and Stuart's Ch. R. 568,) and the other by the supreme court of Massachusetts. (Lamb v. Clark, 5 Pick. 197.) In each of these cases the injured party had an undoubted right to the action of trover, and that action was barred by the statute of limitation; and in each he was allowed to recover for money received within six years on and for the converted property. Both courts gave judgment after full argument. Sir John Leach appears to regard the principle as *Page 119 settled law, and Parker, Ch. J. in delivering the judgment of the court over which he presided, lays down the proposition unhesitatingly, and says substantially that the wrongdoer cannot be permitted to set up his own wrong, though an action for it may be outlawed in answer to a just claim for money he has no right to retain. This is certainly just and sound in morals. Mr. Angel also, in his treatise on limitations, lays down the law in these words: "An action of assumpsit may not be barred "by the statute, when to an action for a tort upon the same demand, the statute may be pleaded." (Angel on Lim. ch. 9, sec. 5.) These authorities, and the reasons on which they are founded, bring me satisfactorily to the conclusion that the present action is not barred by the statute.
Another and further question also arises, and that is, whether the pendency of an action of trover for all the securities transferred by the appellant Schroeppel to the respondent, on the usurious transactions between the parties, is an abatement of the present suit. I am clearly of opinion it is not. The two suits are not at all for the same cause of action. One is for the value of the whole securities and founded upon the statute, (Schroeppel v. Corning, 2 Comst. 132,) while the other is an action at common law, for the excess of money received over and above the principal and interest loaned, and which the lender, ex equo et bono, has no right to retain.
Some other points were presented on the argument, but it does not appear to be necessary to notice them particularly.
On the whole, I am of opinion that the appellants have a right to recover from the respondent all sums of money received within six years previous to the commencement of this action, on the securities transferred to him in pursuance of the usurious transaction, over and above what he shall have received or realized as the principal and interest of the money loaned.
Judgment affirmed. *Page 120