FROM CARROLL CIRCUIT COURT. The plaintiffs claim to recover this money of the executor in his private capacity. The claim is, that he has so conducted himself that he is liable to be sued in his private capacity; and, if the plaintiffs can recover, execution may be had against him, to be satisfied de bonis propriis, and, as the declaration stands, entirely irrespective of the condition of the assets of the estate in his hands.
I understand the effect of the authorities to be, that, whenever a party has knowingly violated the law by taking usurious interest, the money which he has so taken is money which ought, in equity and justice, to be considered as money had and received to the use of the other party. Willie v. Green, 2 N.H. 333; Cross v. Bell, 34 N.H. 86, and cases cited. It is the doctrine of the cases that always the payment of unlawful interest is the result of *Page 355 oppression, and that always the receipt of unlawful interest is oppressive. The party so paying is considered as paying under duress, and so not in pari delicto, and, therefore, the ordinary rule, that when two parties are engaged in violating the law the law will lease them where it finds them, and will not undertake to help either, does not apply.
At a time when the general government was always in the market borrowing money at a largely usurious rate, any party who withheld his money from such safe loan and loaned it to a town was still considered as the oppressor, and the town the oppressed. The oppression is not a matter of fact to be found by the triers of fact, but a mysterious inference of law founded in the policy of the law.
This being so, is the action had been against the estate, or against the executor in his capacity as such, to recover back the money usuriously paid, no notice would have been necessary, excepting such notice and demand as is always required by the statute before commencing an action against an executor. The unlawful act in such case being the unlawful act of the intestate, and of course known to him, the right of action must have accrued in his lifetime, and would not depend upon the executor's knowledge. In such case, the statutory demand must be made before the suit can be maintained. In this case, the estate having been settled in the insolvent course, the claim, not having been presented before the commissioners as appeared by the pleadings, would be barred, and in this state of facts the attempt is made to recover the amount of the executor de bonis propriis.
It being conceded that neither the defendant nor his co-executor had any knowledge of any infirmity in the note, or of any usurious transactions between the testator and the plaintiffs, and the note being prima facie good, and one which the selectmen were authorized to pay, and there being no pretence of any mistake or accident, it seems entirely clear that the defendant has been guilty of no violation of law. He had a right to believe the note to be good, and to treat it as such; he had a right to deal with the selectmen as the agents of the town, authorized to settle their just debts: he had a right to receive this money as money belonging to the estate of his testator, and to use it in the settlement of that estate.
If it had been made to appear that he had been notified of the state of facts on which the claim of the town is founded before he had settled the estate and paid over the money, and had had full knowledge of the usurious transactions complained of, some questions might have arisen which do not now arise. But in the existing state of facts, as made apparent by the case, I think this action cannot be maintained, and a nonsuit was rightly ordered.
The objections taken in the course of trial by the defendant, not being necessary for the determination of the case, have not been considered.
LADD, J., concurred. *Page 356
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