Nicholls v. Skeel

Lowe, O. J. The question reserved for our determination is, whether usurious interest voluntarily paid by the borrower to the lender can be recovered back. ■ The English statutes aro peremptory, and declare usurious contracts absolutely void. A number of the American statutes do the same thing. Other American statutes provide by express enactment for the recovery back of usurious interest. Both classes of these statutes view the borrower as an innocent victim, and the lender a rapacious Shylock, and visit their penalties alone upon the latter. Decisions in England and America based upon these statutes are cited by the plaintiff as his authority for bringing and maintaining an action of this kind. Our usury law is quite dissimilar in its provisions to the above statutes. It does not declare the contract void. It [303] prohibits usury as an evil, affecting the business morals of society and the healthy action of trade. It regards the parties to such a contract in pari delicto, holds them alike obnoxious to its animadversions, and makes the school fund the recipient of the forfeitures resulting from their illegal acts. To permit the borrower, under these circumstances, to sue for and recover back usury which he had paid without objection, would be to allow him to take advantage of his own unlawful conduct, defeat the policy of the statute, defraud the school fund, encourage similar violations; and a suit for such a purpose cannot and ought not to be maintained. The Ohio and Massachusetts authorities will sustain this decision. Judgment below affirmed.