Ransom v. Hays

• Decision Date: 28 February 1867
• Citation: 39 Mo. 445
• Parties: JOHN T. RANSOM, Defendant in Error, v. E. C. HAYS, GARNISHEE, Plaintiff in Error.
• Court: Missouri Supreme Court

39 Mo. 445

JOHN T. RANSOM, Defendant in Error,

v.E. C. HAYS, GARNISHEE, Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1867.

Error to Buchanan Common Pleas.

S. Ensworth, for plaintiff in error.

The principle that a person who has paid to another usurious interest can recover the same from the receiver, is too common and apparent to be questioned--8 Mo. 191; 20 John. 293.

This right is personal, and cannot be exercised by any other until the position of the parties is changed by the election of the payer of the usury; but when the election is made in court, and the right asserted, the claim becomes a right in action, instead a right of action, and is a property. The payer of the usury may elect to avail himself of his right to recover, which is evidenced in different ways, by making an actual demand, or by assigning his specific right to recover by suit in his own name, or by permitting a person to sue him and the receiver of the usury in equity, and he assenting to the recovery--1 Murd. Ch. 437; 3 J. J. Marsh. 13; 1 B. Mon. 321.

Bagby having manifested his election by suit to recover the usury, the court should have overruled the motion to dismiss, and permitted the parties to proceed with the case--1 B. Mon. 321.

L. M. Lawson, for defendant in error.

I. The law of this State, entitled, “An act regulating the interest of money,” approved November 20th, 1855--R. C. 1855, p. 889--embraces the law of this state upon the subject of usury, and prescribes the remedy. The remedy pointed out in section 5 of said act is the only remedy known to the law of this State, and no action of any kind in behalf of any one lies for the recovery of usury. It is solely a matter of defence in a suit commenced.

1. This is an affirmative statute introductory of a new law directing a thing to be done in a ccrtain manner, and that thing ought not ever, though there are no negative words, to be done in any other manner--Dwar. Stat. p. 477; The Queen v. Mayor of Leeds, 11 Ad. & El. 512; Sedg. on Stat. & Const. 323 & 402; City of Boston v. Shaw, 1 Metc. 130, 138; Hillsdale v. Larned, 16 Mass. 65; Gedney v. Inhabs. of Tewksburry, 3 Mass. 307, 309; Crosby v. Burnett, 7 Metc. 17; Smith v. Lockwood, 13 Barb. 209; Dudley v. Mayhew, 3 Coms. 9; Lang v. Scott, 1 Blackf. 405; Almey v. Harris, 5 Johns. 175; Thurston v. Prentiss, 1 Mich. 193; Gooch v. Stephenson, 13 Maine, (1 Shep.) 371.

2. The following is a good statement of the principle in the foregoing decisions. Where a statute creates a right or defines a wrong which had no existence at common law, and prescribes a remedy to enforce and protect the one and redress the other, no action will lie at common law. The statute must be followed--23 Pick. 36; 3 Metc. 380; 1 Metc 553; 2 Metc. 599; 32 Maine, 553; 5 Johns. 175; 1 Mo. 147; 1 Mo 428; 6 Mass. 40; 14 Mass. 286; 1 Blkfd. 39; 15 Mass. 205; 9 Pick. 496; 13 Pick. 284. In states having similar statutes to ours, it is de cided that usury can be relied upon only as a defence--21 U. S. Dig 237, tit. Usury; 22 Id. 557, tit. Usury.

2. The common law relative to any subject is superseded by a revision of the whole subject by the Legislature--10 Pick. 37; 12 Mass. 545 Nichols v. Squire, 5 Pick. 168.

3. The usury is not specially plead in the denial of plaintiff in error This being a penal statute must be so construed as to inflict the penalty and advance the remedy without multiplicity of actions--Coke Litt 381-6; 8 Johns. 41; 10 Johns. 467, interest reipublicœ ut sit finilitium. Such a construction as will defeat the remedy is never given--9 Wheat. 81.

4. The defendant, Bagby, having assented and paid the money, failing to avail himself of the remedy, no action lies to recover the money so paid-- volenti non fit injuria--Broom, 193.

A garnishee cannot be compelled to answer as to usury--Drake on Attach. §§ 645, 548; Boardman v. Roe, 13 Mass. 104; Graham v. Moore, 7 B. Mon. 53; 10 B. Mon. 119.

WAGNER, Judge, delivered the opinion of the court.

Ransom, who was a judgment creditor of one Bagby, having sued out an execution on his judgment, caused the defendant Hays to be summoned as garnishee. In addition to the usual interrogations, Ransom propounded and filed the following: “At the time you were summoned as garnishee, had or had not defendant Robert F. Bagby sued you for usury, and if so, how much usury has he paid you within the last three years that has not been repaid?” In answer to this interrogatory, Hays stated that he was sued by Bagby for usury; that the suit was commenced before the notice of garnishment was sued, and that the records of the court would show the correct date of the suit. The garnishee in his answer then denied that Bagby had paid him any usury within the last three years before the service of the notice of garnishment, or at any other time, that was not fully repaid before the garnishment. To this answer Ransom filed a denial, and alleges that on or about the 8th of March, 1858, Bagby borrowed from Hays a sum of money, on which he paid usurious interest--at the rate of about twenty-five or thirty per cent.--and that the amount of usury so paid was about two hundred dollars; that after the payment of the debt and usury by Bagby to Hays, Bagby instituted a suit in the Court of Common Pleas for Buchanan county, in his own name and against Hays, to recover the amount of usury so paid, and claimed that at the service of the garnishment Hays was indebted to Bagby in about the sum of two hundred dollars on account of the usurious payment. Hays then filed his motion to dismiss the proceeding of garnishment, because the denial of the answer of the garnishee contained no grounds upon which a recovery could be had against him. The motion was sustained by the court, and the plaintiff excepted, and sued out his writ of error.

The defence of usury, like the defence of infancy, is a personal privilege, and can be exercised only by the person immediately interested. But it is contended that when Bagby brought suit to recover the usurious interest he had paid to Hays, he elected to avail himself of his personal privilege, and from that time there was a valid subsisting debt in his favor, which could be reached by the process of garnishment. Whilst on the other side it is argued that under the statute of this State that if a party voluntarily pay interest as usury, an action cannot be maintained for its repayment, and that the only remedy the debtor has is to plead it in defence, when sued on the contract out of which it originates. In the case of Hawkins v. Welch, 8 Mo. 490, the court does not expressly decide the point, but intimates the opinion that a party paying usurious interest may recover it back by an action at...