The, opinion of the Court was drawn up by
Davis, J.By the R. S., c. 45, § 3, it was provided that any person paying excessive interest might recover it back of the creditor receiving it, "in an action of the case, commenced within a year after the payment.” The amendment of 1862, c. 136, may possibly extend the remedy to some cases not reached by the Revised Statutes. And the amendment of 1863, c. 209, limits the action to one year from the time when it accrued.
The plaintiff hired $500 of the defendant Nov. 28, 1860, agreeing to pay twelve per cent, interest. He gave one note for the amount, payable in one year, with interest, and another note for $30, payable in one year, for the excessive interest. This note was not paid until Dec., 1862 ; and the suit to recover back the amount paid was commenced Jan. 6, 1863. But the defendant contends that giving a negotiable note for the excessive interest was a payment of it; and that the action, therefore, was not seasonably commenced.
A negotiable promissory note is, prima facie, a payment of a preexisting debt for which it is given, if due upon a simple contract, so that no action can afterwards be maintained upon the contract. But this rule was intended for the protection of the debtor; and it does not abrogate the distinction between payment by a note, and an actual payment, in money, or other property. And the statute under consideration has always be'en understood as requiring an actual reception of the money or other property before any right of action would accrue to recover it back. There is no valid preexisting debt or claim for the excessive interest. And if a promissory note is given for it, either by itself, or with the principal,, the law regards it not as a pay-*301merit, but as merely a promise to pay such interest, which, if the note has not been transferred, the maker may still refuse to pay, or the holder may decline to receive. Stevens v. Lincoln, 7 Met., 525; Saunders v. Lancaster, 7 Gray, 484.
The limitation of one year was stricken from the statute by the amendment of 1862’, and was reenacted by the amendment of 1863. This suit was commenced before it was reenacted. If the Legislature could thus restrict a remedy given only by statute, in suits already commenced, which we do not question, still the action was seasonably commenced. Exceptions overruled.
Appleton, C. J., Cutting, Walton, Dickerson and Barrows, JJ., concurred.