Opinion of the Court, per COMSTOCK, C. J. issuing of the draft was prohibted, and if they were also void, Perry, nevertheless, had a right to demand and recover the sums of money which he actually loaned to the defendant. The loans, themselves, were lawful contracts, and I see no reason why they cannot stand, according to their terms and intention, rejecting only the assurances. given for the repayment, as simply worthless. This point, I think, was directly involved and determined in Curtis v. Leavitt (15 N. Y. 95-99). But the result in this case will be the same, whether we consider the right of Perry to sue as resting on the contract by which he agreed to lend, and defendant to repay by a specified time, or on a total disaffirmance of the entire transaction between him and the defendant. In the latter aspect, the defendant received his money and held it, for his use, whenever he chose to demand it. (Tracy v. Tallmadge, supra.)2 The next question, therefore, is, whether the right of action to recover the money still remains in Perry, or whether he transferred it to the plaintiff. In either case, the suit, if not maintainable on the drafts, would have to be brought in Perry's name, according to the principles of the common law; but, under our code of pleadings and practice, it must be brought in the name of the real party in interest. If, therefore, the dealing · between Perry and the plaintiff had the effect to assign his claim, the plaintiff has the same right to maintain an action, which Perry had before the dealing took place. The inquiry, then, is, whether the sale and indorsement of the drafts by him to the plaintiff, for a full consideration paid to him, did, or did not, have the effect to transfer all the claim against the defendant which the drafts were intended to represent. I examined this question, after the first argument of the cause, although the counsel on both sides had failed In the Saratoga County Bank v. King, 44 N. Y. 92, it is said, that this case proceeds upon the right of the lender to disaffirm the illegal contract, and recover upon the implied promise to repay the money loaned. Opinion of the Court, per COMSTOCK, C. J. to notice it; and I was of opinion, that such was the effect of the indorsement and sale. The question has now been fully argued; and, upon the most careful consideration. I cannot bring my mind to entertain any serious doubt upon the proposition. If the drafts had been * 498 ] *valid instruments, most clearly, Perry's transfer of them would have left in him no pretence of any claim against the defendant's bank, for the money baned, on which they were based. The idea that the plaintiff could sue on the drafts, and Perry for the money, is so absurd, that it needs no refutation. But the intention and result are no less clear, the securities being void. I think, it would be equally absurd, to hold, that Perry, after indorsing and selling the drafts for full value, retained to himself the right to disaffirm them, and to proceed in his own name and right, to recover the consideration for which they had been issued to him. He who sells a security and receives his pay for it, necessarily sells whatever claim or right the security is understood by the parties to represent. For example, a note or a bond may be void for usury, but, being founded on some antecedent claim or contract free from that defect, there may be a just and legal right to recover the original consideration. The note or bond may be sold, and it will be void even in the hands of an innocent purchaser. But will it be p.etended, that the purchaser gets absolutely nothing? It is impossible to doubt, that he will stand in the shoes of his vendor. If that be conceded, how can the application of the principle to this case be denied? I think, the result may be reached, even by the most technical rules of reasoning. If the drafts had been valid, the plaintiff, as the indorsee, could declare or complain, on the money counts, against the defendant, as the . drawer; the instruments would, of themselves, be evidence of money had and received by the drawer to the use of the indorsee. (17 Wend. 206; 16 Id. 659; 6 N. Y. 19; 1 Denio 105.) Now, although they are void, because Opinion of the Court, per COMSTOCK, C. J. in a form prohibited by law, so that no action can be maintained upon them, they are still capable of being used as evidence. They are a written confession that the drawer his received the money or value expressed in them; and, if it be good technical law, that the money is deemed to be held for the use of the indorsee of a valid draft, I can see no reason why the principle should not be applied, when the draft itself, for some formal defect, turns out to be worthless. *The question we are considering was, in effect, [* 499 determined by this court in Tracy v. Tallmadge (14 N. Y. 192). In that case, the Morris Canal and Banking Company had received from one of these banking associations, post-notes, which were assumed to be void. under the restraining laws, or some other statute of this state. The Morris Company then entered into a writ ten agreement with the State of Indiana to transfer to that State those notes, to the amount of $196,000, and the transfer was made accordingly. The consideration on which the notes had been issued was certain state stocks which the Morris Company had sold to the banking association; and one of the questions in the case was, whether Indiana was entitled to recover that consideration, the notes being considered void. There was no pretence that, in point of form, anything except the notes had been transferred to the State; yet it was held by this court, and no doubt on the subject was then entertained, that the State became in equity the assignee of the demand which the notes professed to represent, and, therefore, was entitled to recover the value of the stocks. By way of answer to that authority, and to the princi-` ple of equity which it suggests, it has been said, that the proceeding there was strictly in equity, while this is a mere action at law. The reply to this is plain; remedies are not now embarrassed by any such distinction. Those who have read the Code of Procedure need not be informed, that the old distinctions between suits at law and Opinion of the Court, per COMSTOCK, C. J. in equity are abolished, and that the action must now be brought in the name of the party who has the equitable right to the money or thing in controversy. If, therefore, it can be said, that the assignment or sale to the plaintiff of Perry's demand against the defendant for money lent, or had and received, was defective in respect to the mere forms of transacting the business, it is, nevertheless, the duty of the courts to carry the intention into effect. That which ought to have been done, and which a court of equity would compel to be done, must, upon well-settled principles, be regarded as actually done, where the ends of justice require it. * 500 ] *We conclude, therefore, that the plaintiff became the assignee of the right, which it has been. shown Perry had, to demand and recover from the defendant the sums loaned by him, unless the objection next to be considered stands in the way of that conclusion. The drafts were payable in less than sixty-three days from the time when the plaintiff discounted them, that is to say, they were dated some thirty days forward of that time, and they were payable when the day of their respective date should arrive; the plaintiff, in discounting them, deducted interest at the rate of seven per cent. per annum. The plaintiff is a banking corporation, subject to the provisions of the so-called "Safety Fund Act" (Laws of 1829, c. 94), the 33d section of which declares, that, "on all bills or notes discounted or received in the ordinary course of business, which shall become mature in sixty-three days from the time of such discount, the said moneyed corporations shall not take or receive more than at and after the rate of six per cent. per annum in advance." This statute would seem to have been violated by the plaintiffs in the discount of these drafts. But we do not see, in this feature of the case, any valid objection which the defendant can take; and as this point was scarcely insisted upon at the argument, in the view of the case which we have so far taken, but little Opinion of the Court, per COMSTOCK, C. J. will need to be said in regard to it. In a case where this statute is violated, and the transaction is directly between the offending bank and the maker of an obligation so discounted, a question of some difficulty might arise, whether the contract can be enforced. If, however, it be conceded, that, in such a case, the debtor can resist an action, whether upon the contract, or, in disaffirmance of the contract, for the money advanced to him, it by no means follows, that any defence of this nature exists in the controversy now before us. When, as in this case, the debt has been created and the security given between other parties, the debtor is not aggrieved, nor is his obligation in the slightest degree impaired, by a subsequent discount of the security by a bank, in violation of the statute. The demand being originally a legal and valid one, it loses no quality, when the holder makes an illegal transfer of it [* 501 to a bank, or to any other party. The debtor being bound to pay it to some one, all that he can claim is protection against liability to pay more than once. Being himself a stranger to the transfer, he has no right to bring forward questions and controversies which might arise between other parties, but in which he has no sort of concern. Thus, if the holder of a valid obligation should pledge or transfer it upon a usurious loan, the debtor could not impeach the title of the transferree, in a suit by the latter to enforce it, where it did not appear that the pledge was in any manner disavowed or revoked by the party who made it, and who alone was aggrieved by the usury. (Dix v. Van Wyck, 2 Hill 525; Reading v. Weston, 7 Conn. 409; De Wolf v. Johnson, 10 Wheat. 368.) In reference to the statute under consideration, it is a restriction upon banks, designed for the protection and benefit of those who borrow money or receive discounts. from them. The defendants are not in that relation to the plaintiff; they became indebted to Perry, and they still owe that debt. They certainly have nothing to do |