The opinion of the Court was drawn up by
WhitmaN C. J.This is an action for money had and received. The object of the plaintiff is to recover $242,02, alleged by him to have been paid to the defendant, as and for usurious interest, on a loan of $ 1500, made to him by the defendant, in 1833. The first question raised in the defence is, as to the maintenance of such an action, for such a purpose. It is urged that the action is misconceived : and several cases have been cited by the counsel for the defendant, supposed by *36him to sustain the position. The St. of 1841, c. 69, $ 5, gives to a party, who has paid usury, a right “ in an action at law,” to recover of the payee the excess he may have paid over simple interest. Although this is, as required by statute, an action at law, it is insisted, that the declaration should be special, setting forth a case, coming within the purview of the statute. If the action were in its nature penal, and not remedial, the reasoning of the defendant’s counsel would have great force; and could not, perhaps, be controverted. But the provision in the statute is entirely remedial. It enables a party, who has paid money to one, who had no right to exact and receive it of him, to recover it back. The simple amount only, so paid is reclaimed. The authorities cited do not apply to such a case. The objection urged, that the defendant could not be apprised, by a declaration so general, that he was called upon for money paid as and for usurious interest, would apply, with equal force, to every action for money had and received, without containing any specification. In such case the defendant has it in his power to possess himself of the requisite information, by applying for a bill of particulars, which the Court would compel the plaintiff to furnish; and this would obviate the further objection made, that a recovery in such case would be no bar to future action.
The case, much relied upon by the counsel for the defendant, of Palmer v. The York Bank, 18 Maine R. 166, was altogether different. The plaintiff therein sought to recover, for a breach of contract, damages beyond the amount contracted to be paid. It was the case of a suit upon bank notes; upon a demand of payment of which the holder became at common law, entitled to recover the amount claimed, with simple interest thereon. A statute had authorized a recovery, by way of penalty, for refusing prompt payment, interest at the rate of twenty-four per centum per annum. The Court merely held, that, to recover such a rate of interest, the plaintiff should have declared for it. Not having done so he was held to be restricted to the terms of his contract, and the recovery of interest, as at common law, by way of damages for *37breach of the contract. In the case at bar money is alleged to have been received by the defendant, which in conscience he ought not to detain from the plaintiff; and the action is brought to compel him to refund it, as required by positive law. The mode of proceeding is therefore unobjectionable.
It is next contended by the counsel for the defendant, that a settlement, which took place between him and the plaintiff, should preclude the latter from maintaining his action. The amount then ascertained to be due, including interest, at the rate of seven and one-half per centum per annum, after deducting a payment which had been made upon the original loan, was $2304,58. Of this sum $1348,22 was then paid, together with $17,69, costs of suit, which had then accrued. This payment was made by the transfer of certain notes, and a mortgage, which the plaintiff held against another person. This left a balance of the original loan and interest, computed as above, of $956,36, for which new security, by notes and mortgage, was given by the plaintiff to the defendant. The defendant insists, that these two sets of securities amounted to payment, at that time, of the usurious interest; and so that no usurious interest has been received within one year next before the commencement of the suit. This ground of de-fence is clearly good as to so much of the extra interest as can be regarded as having been then paid. The statute contains a limitation, restricting the right of the payer to recover it back, to the term of one year from the time of payment. The extra interest was added into, and formed a component part of the gross sum then settled for; and the amount then paid and
secured, by the notes and mortgage of another person, was clearly a payment pro tanto; and it comprised its proportion of the extra interest; and of course was payment thereof; and therefore not now recoverable. Darling v. March, 22 Maine R. 184.
For the residue, viz. $956,36, the defence, upon this ground, is not sustainable. In this sum was included its proportion of the extra interest; and the new security, taken therefor by the *38defendant of the plaintiff, was not payment. All the authorities agree that such a renewal of an original security, tainted with usury, carries with it the original taint. The new security, therefore, must be regarded as containing about $115, of the extra interest.
It is contended, however, that even this amount is not recoverable ; and it may be so; for the report of the facts leaves it doubtful whether the whole was paid within the year next preceding the suing out of the writ. And such parts of it as were not so paid would come within the principle of Darling v. March, before cited. The language of the report is, that the payment of the balance due on the last mentioned notes (viz. for the $956,36,) was made on the eighth of December, 1843.” What that balance was does not appear. The language of the report would seem to imply, that it was short of the original amount; and the original amount, $956,36, was made payable in one, two and three years. It is rather to be presumed, that the two first instalments had been before paid; and the language of the report does not forbid the presumption that portions of the last instalment had been previously paid. We could not, therefore, be authorized to conclude, that any thing beyond a nominal amount of extra interest had been paid, within the year preceding the suing out of the writ. And for that amount, viz. one dollar, judgment may be entered upon default.