Richard H. White vs. David Comstock, 6 Vt. 405

The opinion of the court was pronounced by Williams, Ch. J. — This action, though in form an action of assumpsit, for money had and received, appears to have been an action to recover a penalty. This penalty is given by the s.tatute, to any one who shall prosecute for the same. Although Comstock, the defendant, may have in his hands money which he ought not to retain as against Eben White, yet he may retain it, as against this plaintiff, and is under no obligation, either moral or legal, except by force of the statute, to pay him.

So far as the statute gives a right of action to any one, to sue for the money received as usury, it is penal and meant to be so. It gives a right of action to a common informer, and the borrower, the one who is really entitled to the money sued for, is a competent witness. This was so decided on mature consideration, in the case of Hubbel vs. Gale. — 3 Vt. Rep. 266. The court in that case, which was similar to the one under consideration, decided that the action was a penal action, where the penalty or forfeiture is limited to any one who shall sue for the same.

The authority of that case is decisive on this question. Whether the rule of evidence, as applicable to this action, was correctly laid down, is susceptible of more doubt. Full proof is required in criminal actions and actions of a criminal nature. The legal presumption is always in favor of the innocence of a party. It is one of the first and best principles of justice, that no person is presumed to act illegally.

Hence, where it is necessary to establish the fact that a person has violated a public statute, has been guiltyof an offence, has incurred a penalty, or has done an illegal act, it is necessary to encounter and overcome the presumption, which always arises in favor of the innocence of the person charged, and that he has not acted illegally.

Thus, it is sometimes necessary, contrary to the usual rule of evidence, not only to prove an affirmative, but to prove a negative, in an information against a man for refusing to deliver up certain papers belonging to his office, the court put the plaintiff on proving a negative, to wit, that he did not deliver them up, to encounter the presumption, that he had executed the duties of his office, as he was bound to do. — B. N. P. 298.

In an action by the owner of a ship against the master, for putting on board combustible articles without giving due notice, the plaintiff was held to prove the negative averments.— Williams vs. E. I. Company. — 3 East 193. In actions of the nature of the one under consideration, the plaintiff has no right to the money 'sued for, until that right is established by a verdict. The defendant has no money of the plaintiff’s in his hands.

The plaintiff recovers by virtue of a positive law, enacted.from principles of policy, and he must recover by proving the defendant to have acted illegally, and to have violated a public statute, and guilty of an offence.

There is no hardship on him, nor is it calculated to throw any obstacles in the way of enforcing the statute, to require in such cases, full proof — that the action should not be treated as the ordinary case of an action for money had and received upon a contract, especially as the person bringing the action can avail himself of the testimony of the borrower and make, by him, all the proof which is necessary. Indeed, the action is frequently brought by the friends of the borrower, with the view of making him a witness.

For these reasons, we are inclined to sanction the rule in relation to evidence as laid down by the county court in their charge to the jury, and affirm their judgment.