The law provides that if any person directly or indirectly receives or retains usurious interest, it may be recovered back in an action on the case. It. S., c. 45. Public Laws of 1862, c. 136.
This is such an action, and the question is whether pay*360ment to the assignee or indorsee of a negotiable note tainted with usury, will authorize a suit against the original holder, provided the latter, when he sold the note, received from the purchaser no more than the amount of money actually loaned with lawful interest.
We think it will not. To maintain such an action the plaintiff must show that the defendant has directly or indirectly received or retained the usurious interest sued for, — a proposition that cannot be maintained when in fact the defendant has never received or retained from either the maker or the purchaser of the note more than the amount of money actually loaned and lawful interest.
The plaintiff in this case testifies that he gave the defendant certain promissory notes in which was included usurious interest, and that he afterwards paid those notes to a person to whom the defendant sold them. But there is not only no evidence that the defendant received the full amount due on them, but on the contrary the defendant swears that he sold them at a discount so large that he did not obtain so much money as he originally loaned the plaintiff, exclusive of all interest, legal or illegal. Surely such a state of facts as these do not maintain the proposition that the defendant is the recipient of illegal interest.
When, as in Webb v. Wilshire, 19 Maine, 406, the payee of a note, tainted with usury, sells it for the full amount due on it, and the maker afterwards pays that amount to the holder, an action against the payee can be maintained, because in such a case he has indirectly received the usurious interest. But when, as in this case, the payee sells the note for less than the amount due upon it, exclusive of usurious interest, the proposition that he is the recipient of illegal interest cannot be maintained, and an action will not lie against him. Judgment for defendant.
Appleton, C. J., Kent, Barrows, Daneortb and Tap-let, JJ., concurred.