Citation Numbers: 18 Abb. Pr. 301
Judges: Morgan
Filed Date: 3/15/1864
Status: Precedential
Modified Date: 1/12/2023
The questions presented by the demurrers in these cases have occasioned me a good deal of difficulty, and -I regret that I have not time to consider them at greater length. I shall have to content myself with a very brief statement of my reasons for arriving at the conclusion that the demurrers are not well taken.
First. In my opinion, the receiver may sustain an action to recover the usurious premiums paid by the judgment-debtor to the defendant Bushnell. He represents the creditors as well as the judgment-debtor, and I think his title is sufficient to authorize him to maintain such an action. (Porter a. Williams, 9 N. Y. (5 Seld), 142.)
' Second. Contrary to my first impressions, I am of opinion that the action may be brought within six years after the cause of action accrues, and that the Statute of Limitation, to be made available, must be set up in the answer. (Wheaton a. Hibbard, 20 Johns., 290.) This disposes of the demurrer in the second above-entitled action.
‘ Third. It is apparent to my mind that the judgment-debtor is not a- necessary party to an action by the receiver against Bushnell to recover the usurious premiums, while he is a necessary party to an action to set aside the fraudulent assignment and conveyance of the judgment-debtor to Bushnell. Besides, it. is evident that an action at common-law will lie against Bushnell to recover these usurious premiums. And it is very questionable, in my mind, whether a bill in equity, tinder the,former system of pleadings, would have been maintainable in such a case, unless a discovery was part of the relief prayed for. Here, no discovery is necessary, as the amount of the excess beyond the legal interest is ascertained by the complaint as in a common-law action. But the Code of Procedure has in some degree authorized the uniting of causes of action in the same complaint hitherto regarded as separate
The result is, that judgment must be given for the plaintiff in both cases, overruling the demurrer, with leave to the defendants to answer in' twenty days, on payment of the costs of the demurrer.