This action is brought under St. 1846, c. 199, § 2, to recover back threefold the amount of usurious interest taken and reserved on a loan of money, by the party paying the same.
1. The first objection on the part of the defendant is, that the action is not properly named under the new practice act. Heretofore, under the former practice, penalties of this character, given by particular statutes, were sometimes made recoverable by action of debt, and sometimes by action on the case, or indictment ; and in some cases a remedy was given in the alternative. The claim given to the party paying more than six per cent, interest partakes both of the character of debt and tort. To the extent of the interest paid contrary to law, the party paying not being deemed in law to be particeps criminis, we suppose it might be treated as money of the plaintiff had and received of him, which the defendant could not in equity and good conscience retain, and therefore that an action on the implied contract would lie for it. The recovery of the other two thirds is more in the nature of a penalty to restrain an act contrary to public policy; still it is not given to a public prosecutor or informer, but to the party only, and is therefore in the nature of a statute debt due to him. Under these circumstances, it might well be deemed doubtful to which of the classes of actions, tort or contract, this particular cause of action belonged; and thus it was brought within the provision of the practice act, whereby a count in contract may be joined with a count in tort, averring that both are for the same cause of action. St. 1852, c. 312, § 2, cl. 5. This is precisely what the plaintiff has done by his amended or additional count, which we think he was properly allowed to file on motion. He may therefore well maintain his action.
2. The other point taken in defence is, we think, wholly untenable. The note was taken for $2,500, the bonus or additional compensation for forbearance was deducted, and $2,350 only *563advanced. It was taken and detained by the note, which em braced both the loan and the bonus, and that note was afterwards paid. It is wholly immaterial, whether the bonus or usurious interest shall be deemed paid when thus deducted, or when the note was subsequently paid. Either way, it was paid for the stipulated loan, and was therefore usurious, within the statute. It was paid by the plaintiff, because it was paid by his order and procurement, from funds provided by him, and by one who undertook to act and did act for him and as his agent in making the payment. Exceptions overruled.