This is an action to recover of an executor, personally, usury taken by his testator during his lifetime.
December 10, 1864, Moses Merrill, the testator, lent the town of Ossipee $3,000, and took the note of the town for that sum. February 24, he lent the town $2,000 more, and took a note therefor. Interest was paid upon these notes of Moses Merrill, from time to time, at the rate of 8 per cent. February 17, 1872, these two notes were surrendered by Moses Merrill to the town, and he took a new note of that date for $5,000 signed by the selectmen of the town. The defendant and Lois Merrill were the executor and executrix of the will of Moses Merrill. February 13, 1873, the town treasurer, by authority of the selectmen of Ossipee paid to Lois Merrill $2,000, which was endorsed upon the note, dated February 17, 1872. Sept. 22, 1873, the treasurer paid the balance of said note, amounting to $3,424.10, to the defendant. The money was paid to him as executor of Merrill, "and without any knowledge of part of any infirmity by reason of usury."
It was not claimed by the plaintiffs that they had paid to the defendant, or to the executrix, Lois Merrill, any money as usury, or any other money than the sums of $2,000 and $3,424.10.
It was claimed by the defendant, and not denied, that he had accounted for the full sum he received in settlement of his account.
It is plain that the defendant has done nothing more than his duty. There comes into his hands, as executor, a note signed by the selectmen of Ossipee. He collected it. There was no usury in it, and he was not aware that any usurious interest had ever been paid on the notes, which went into the consideration of it. To hold that he made himself personally liable in any way would be a conclusion which the court would reach with reluctance, and only in obedience to some rigid principle of law.
It is said that these payments of usurious interest are payments upon the note, and should have been endorsed upon the note. Suppose they might be regarded in that light: it is clear that they might also be regarded as payments of money distinct from the note, to recover which the town would have an action against Moses Merrill, or his estate; — and, if the note and the payments of usurious interest might be offset against each other, can there be any doubt that, after the town had seen fit to pay the note in full, its action would be one to recover back the sums of usurious interest paid to Moses Merrill, and not an action to recover back any portion of a valid note paid to his executor? Clark v. Phelps, 6 Met. 296; Butterfield v. Kidder, 8 Pick. 512; Gardner v. Flagg, 8 Mass. 101; Thompson v. Woodbridge, 8 Mass. 256; Chadbourn v. Watts, 10 Mass. 121; Little v. White,8 N.H. 276.
Judgment affirmed. *Page 357