Hubbell v. Gale

• Decision Date: 01 January 1830
• Citation: 3 Vt. 266
• Parties: CALVIN HUBBELL v. LYMAN GALE
• Court: Vermont Supreme Court

3 Vt. 266

CALVIN HUBBELL v. LYMAN GALE

Supreme Court of Vermont, Chittenden

January, 1830

[Syllabus Material]

This was an action of assumpsit, in which the plaintiff declared against the defendant for money had and received by him to the plaintiff's use. From the particulars of the plaintiff's demand filed in writing, and from the proof offered in the case, it appeared that the plaintiff's action was founded on the second section of the act to prevent usury, and was brought to recover the sum of $ 54 received by the defendant of one Zadock Wheeler contrary to the act, and for which Wheeler had not sued within one year thereafter. The county court, without going into the merits dismissed the action, on the motion of the defendant, because there was no special minute in writing, on the original writ of the day, month, and year, when the writ was signed. The cause was removed to this Court on exceptions taken to the decision by the plaintiff, and allowed by the court below.

Thompson, for the plaintiff.--1. The plaintiff contends that the case does not come within the statute. In the statute against usury (p. 163, sec. 2) the language is. " and in case the person or persons so paying," & c., " shall not commence his suit," & c., " then it shall be lawful for any person to sue for, " & c., " in manner aforesaid," & c.

In the statute relating to the limitation of suits, (p. 288, sec. 1,) the language is, that all actions, & c. brought for any forfeiture upon any penal statute, & c. the benefit whereof shall be limited in whole or in part to the person or persons who shall inform, & c. The language in the 5th section is, " when any action, & c., shall be brought, & c., in any of the cases mentioned in the preceding sections, the clerk shall make a minute, & c. In the explanatory act of 1808, (p. 292,) the language is, that the 1st section of the act aforesaid shall not extend to any case where the remedy is given to the party aggrieved, & c. In the statute against usury the action is given to the party injured, although upon a certain condition it, is given to others. The case is, therefore, taken out of the statute by the act of 1808.

2. The action is not brought upon, nor was it necessary to bring it upon, the statute. So far as the statute relates to the borrower, it is declaratory of the common law. As to the right of any other person, it creates the right to sue, and gives the remedy. The plaintiff calls to his aid the statute in support of his action, just as he would the common law, if he had a remedy at common law. Many of the acts imposing penalties direct the action to be founded on the statute; in other words, to be brought upon it, and when this is not the case it is unnecessary to count upon the statute. See statute more effectually to prevent trespasses, (p. 280, sec. 1, 5, 6.)

3. This action is not brought to recover a forfeiture or penalty, nor is the statute penal. Penal laws require the offenders to part with property, or money, which they have not received gratuitously from others. Whereas, the act under consideration simply requires the defendant to refund the amount he has received, over and above what belongs to him, and which, in equity and good conscience, he cannot retain. It requires him to make no sacrifice of his own, but merely to restore what belongs to another. The common law which compels a man to refund what he has obtained by fraud or mistake may with equal propriety be termed " penal." It can make no difference whether the property be restored to the person who has parted with it, or paid to a stranger. The effect is the same upon the defendant. The liability operates as a penalty or not, according to its effect upon the person liable. In this case the defendant is punished neither more nor less on account of the money's being received by a third person.

Bayley and Marsh, for the defendant.--Two questions may be raised in this case. 1. Is the statute against usury, or so much of it as forms the foundation of this action, a penal statute? 2. If so, does this case come within the fifth section of the statute of limitations?

1. Statutes are penal which give a right of action for a breach of them. Remedial, when the sum to be recovered is intended as a compensation of the party aggrieved for the money or injury. Or when an action is given to a person other than the party aggrieved, as a means of enforcing the statute. Or remedial and penal, as when an action is given to a party aggrieved; but he is not limited in the sum to be recovered to the amount of the injury sustained. So far as the sum recovered exceeds a just compensation for the private injury it is a penalty. -- Esp. on penal actions, 1, 2, 5, 7. According to the above limitations, the first clause of the 2d section of our statute against usury is remedial, and the second clause of the same section is purely penal. -- Comp. Laws, p. 163. The former gives to the party aggrieved an action, (if sued within one year,) to recover back usurious interest as a compensation for the injury he has suffered for a violation of such statute. While the latter, if such action be not brought by the injured party, or be discontinued, & c., gives to a common informer by the description of " any other person or persons," a right to sue within one year after the expiration of the first year, and recover the said excess, or usurious interest, or a sum equal thereto: and this action is given solely as a means of enforcing the said statute, by punishing the violation of it. There is no indebtedness, no moral or legal obligation on the part of the lender, to the person who sues under this second clause, independently of a positive statute; but the action is founded on a principle of public policy. This is the very definition of a penal action. To constitute a penalty it is not necessary that the sum to be recovered should be ascertained and found by the statute. It is frequently the single, double, or treble value of the property which is the subject matter of the transaction on which is the suit is grounded, or of the pecuniary loss which the party aggrieved is supposed to have sustained. There are many instances of this kind in our own statutes. See sections 7, 9, 10, 11, and 12, of the " act in relation to inferior crimes; " also 2d section of...