Nichols & Bliss v. Bellows , 22 Vt. 581 ( 1849 )

The opinion of the court was delivered by

Roves, Ch. J.

Several objections are taken to the right of the plaintiffs to recover.

It is insisted, that the cause of action in favor of the plaintiff Bliss passed to his assignee in bankruptcy, who should have joined with the other plaintiff in bringing this action. To sustain the objection, the defendant relies on the words of the United States’ bankrupt act of 1841, which professed to transfer to the assignee all the bankrupt’s “ property and rights of property, of every name and nature.” This sweeping enactment undoubtedly extended to every thing, which would properly go to make up a full inventory of the bankrupt’s estate, — all his means consisting of tangible property, and rights of property, which could be expected to be made available for the payment of debts. But the right to sue for torts is not a right of property in any such sense. It is simply a right of redress, which is personal to the party injured, and which he may decline to enforce at his election. And though the statute has given a form of action in assumpsit, by which a party, who has paid usury, may recover it back, yet this remedy, in legal contemplation, is no less a mode of redressing an injury caused by personal wrong and oppression, than if the action sounded wholly in tort. Barker v. Esty, 19 Vt. 131. We consider, that no right to sue for the usury claimed ever vested in the assignee of Bliss, and that the record of the proceedings in bankruptcy was correctly excluded.

It is also claimed, that the witness, Griffin, was incompetent to testify for the plaintiffs, on the ground of interest. I shall not inquire, whether the objection to this witness was seasonably taken at the trial. If the note of eight hundred dollars, given for the loan, and which the witness signed as surety, had been fully paid, (as the evidence tended strongly to prove,) he could have had no interest at the time of testifying. And if it had not been paid, he was rather interested to have the usury remain in the defendant’s hands, that it might be applied, by equitable offset, or otherwise, in part satisfaction of that note. It is not perceived, how the fact of the witness having agreed to indemnify another surety upon the note could operate to create an interest in this suit in favor of the plaintiffs, whether the note had or had not been paid.

The remaining objection is, that the usury, when received by the defendant, went, by operation of law, in part payment of the note for eight hundred dollars, though such an application was not contemplated by the parties. And that such will be the effect, where the security on which the payment is made includes both the loan and the stipulated usury, is doubtless well settled. That was the case of the first sum of thirty two dollars, mentioned in Ward v. Sharp, 15 Vt. 115. So a general payment, upon what the borrower owes the lender, will be applied by the law to a debt legally due, and not in satisfaction of any usurious stipulation. But when separate securities are given for the usury, whether at the time of negotiating the loan, or afterwards, and the usury, when paid, is applied upon such securities, the debtor is at liberty to treat such a payment as having no connection with the legal demand, and bring his action to recover it back. This is settled by the cases of Grow v. Albee, 19 Vt. 540, and Nelson v. Cooley, 20 Vt. 201, both of which were actions of assumpsit, like the present. At the same time he may, at his election, at least in a co.uri of equity, .compel .the application of such usurious payments upon the lawful debt of the creditor. Ward v. Sharp, above cited, and Day v. Cummings, 19 Vt. 496. The plaintiffs are clearly .entitled ,to retain their judgment, and the sapjp is affirmed.