KNAPP ·· WILLUMSPORT NAT. BANK.
888
,Unless the answer' contains such a speaia.1 demal, the plaintiff need give no proof of citi:aeoship. ,Fourth. The plaintiff in this'case waived the sufficiency of the pleading 'by going to tnal on the issue of 'citi· zenship without objection or exception. Fifth. In any event, it now appearing affirmatively that the plaintiff is not 'entitled to maintain his suit in this tribunal, it would be the duty of the oouttto dismiss it. Sixth. The case was properly dis-posed of at the circuit; but, however this may be, the disposition of it there was tantam.ount to a dismissal, so far as the plaintiff's"i-ights' arecancemed. dismiss,the case now would idle ceremony. The motion for a new trial is demed.
',I', ' .
':., .'
KNAPP
and .
. fqr
,t1.
W
, ' - .
(Oircuit ,!O'!"rt, W. D. NATIONAL , Tll.IAL.
1882.)
BANK-UsuRIOUS'
BEv. Slr·..:-Nltl'f , . ! , ;
'In tIlili tbejqry, iQ...ftndiM,a-,yttrdict fOl',tbe amounUvhicb.: plaintifIWa& entitled to recover, under sectillI\ States, for alleg(!d payments made to defendant'by plaintiff of a UIl.IUlQU8 nlte of disconnt, not having cG/.1tain; $8. co,urt, unless plaintiff, within 10 days,remi*) a new trial will be verdict all over the amount ;or:Wch the jury 'have lowed the court. ,'"
,Rule f,or a New '.rria!. :Debt, ,by Knapp and, T'hompson, fot. etc!., port National Bank, United States, for alleged payments toile. fendant by plaiDiiffil-'ofa usarious"1'&te;gf discount. J , ; , ' , "It " ,. On the trial, 'before M$rENNAN and ACHESON tlJ:4t ,f : the had fm.:l ,an,d buainess paper, within two years prior to the commenG\'lment;of:the .action, aftherate of.. per cent. per annum" ,during t!-utt $-2,110:04.. double that amount. It appeatedllthlit ,the' bank crettiJtedthe,plain. with, fhe. ,J>afM 9f their .wlthjhe..face,amo1,lllts.a.t ; maturity, and ,agai,n cred'itiBg th&m with tlanetproeeed.. of th&irer ." j "> 4 · . _ ' . ; . . . . ' , -""
'.'1 '_
L
·From Welildy
(P';'" See 7 Sup. Ct.
newals', until' aIte! £StUure, when· the accommodation paper (nOnfil.;¢ which4a.;4been."paid"by the plaintiffs) was taken up ,andpai}l by C?I1e" Otto. Halsa appeared that plaintiffs made cash deposits drew,checks thereon, a splall ,baJange being, due plaintitlsat th,e· date· of their failure. The defeqdant pro,ved that fl,mong the business paper discounted »ypla,intiffs at detendant's bank notes of Snyder Brothers, amoullting to,80me anqiD.,dorsed by the proceeds of plaintiffs. These notes were tbeamounts due on them at the time of not paid at the trial was about $830, a RlllYlllenthaving been made the bank by plaintiffs' assignee since the commencement of the action. The defendants offered the following charters of banks it was alleged, authorized the banks in Pennsylvania, which charters, incorporated. thereunder to take and receive a rate of interest or discount equa;} or greatetthanthat chargedby·the defendant in this case:
to
,
NAMIl:.
The Sout'hwark Banking Company of the oiryof Philadelphia, - June 2, 1871. 1872, App. 1359 ,The Franklini Battk'01the city ofPhiladelphla, ',Apr. 1,1870. 1870, 736 The GertnaniaBank, located in the city of Phil, adelphia, : ' June 2, 1871. 1874, App. 321) The United States Banking Company, located at Phiiadelphia,'" .. " ! June 2; 1871. 1873, App. 987 The Twent),isetliJDd Ward Bank of Germantown, May 17; 1871. 1871, Philadelphia, 886 The Manayunk Bank, located in the city of PhilJune 14, 1871. 1871, 1358 adelphia, Apr. 34, 1870. 1871, App.1532 .Bs.n1t' of :Amerlca, ,located at, ,Tl.e,l'e9v,1!l's Bankof the city of. 1870. 1870, 237 The Butchers' and Drovers' Bank "llhia, Apr. 27,1810. 1871, App. 1537 The Market Bank, to be located.,t PhHa4elphi,a, ,4pr. 27, 1870. 1871, App. 1534 ',Tb4 Quaker City Bank, .May lil3, 1871. 1871, 1058 The 8tlttc National Bank, ' . ' -' June 2, 1871. 1872. A.pp. 1351 . ilm 'Bsnk,at Philadelphia; now th.e t NSG 1871 J 1872, App. 1381 Ba.nk,,' ,'or 5 oV,. . ' ·1 "1037 ,The County Mar. 26, 1872, 1873, The Watsontown Bank, ' Mar. 27, 1872. 1873, 1043 'The Lycbming County SaVings Bank, . Mar. 14, '1872. 1873, 1016 ·'Fhe Iron & :GI.asll Dol!a/:1Stvings,lJank 01 Bir1872, 191 .....' , '. c, 1867, The HarmonySavings Bank, . . . - " Apr., 'The'GernianilfSaVl.ngs Batik6f'PittsbUrgh; -"" \:kpr. S; 1870, 1870, 1049 'lI'he Iron ,Bank'of !.-,. , ,i ltsy 4; 1871. 1871, 533 The City Bank of Mar. 20, 1871. 1877, 432 The State Bank of Delawal.pCoUI'l·ty, '. '.' May' 19;'1871. 1873, 966
nate or Act or , Incorporation.
PamphletL.
KNAPP V;:w.IJ.IlUlmSP.ORT NAT. BANK.
chargi:sd· the' jury that the coutt':wasidiVid'ed· in) opinion as to theeffedt:of.Jthe offer of the. .c&llttlliJ.'l' !tanks', in Pennsylvania, and Wat ithaylwouM that {J:ilf,pl31iiltiffs: . wl3re entitled to reco'V'et,nptwitbstandingthe: o'lfer, 'It'lld·that the! ference of opinion of the court would be certified to theiSupreme C0Ult of the United States ,for final d 1 l c i s i o n . " . ! i ' " The plaintiffs are entitled to recover. double the whole <.amQunt, off the usurious· rate ofdisco.unt aotually paid by them tQ the Uauk.The', jury should ascertain the'Wlioleamountof discount by.tbe bank, from which they should deduct the discou.nt on the last renewal ,olthe accommQdation paper ·which was paid by theirindQrser,; Otto; from that balanoe they due the bank on the Snyder nQtes, and twice that rew.£,inder should be the attlQJlnt of, their v e r d i c t . , I :' ;: Verdict for the plaintiffsJof.' $8:,Q85.34:, whe,reup.oD; .obtained this,rule. ' ' i 'I; .: ,: u , j,
·
I
d;
1;,
Fxom the depoaitinn"of a, ):uro1\ it; appeared that:thejurydn mk. ing up their verdict, .the: Sij.ydell nQtes, after, d\>llbling\.,tlJie 'WMle discount less theidiscQup:t;O!l, thelastrenewltlspa.ill iPy,Qtto, the atnount,of. ;'SnY9pf -the indQrser, and. that notes at $ 7 5 Q . c J., . , ' i C. La Rue Munson, (with h'im A. Candor, W. H. H. W. Watson.) foY tha :".;ole·. \,c; . .? .':' d ; . . \ . \\ The verdict was cleadyagainst the weight Qf the evidence alfd,tbe oharge of thecotlirL' ,The' Snydernotes,wereishQwn.:to be,fli,200,less the payment of $370'in, March} 1880, and th-i-s evidence:wa.s notcbntl'adicted. The' balance due ondhese notl:ls shoUild ':ha duo.ted before 'dQubling the ' deduotion ilpfbtlll.aKed raw anotrset too. penalty,bnt a8sbow4ig.that:to' their exteIDJ] {Jount on the had by. the plaintiff, they hMing beoo etedited·withthe net·pEoeeeds!of,JJ.te aocommodation paper, with the face their maturity, byrenewals'untiltbeir ,If"yment by:Otto, i:qd01'8er I the bank having crooiteddheOll with the net pl'oceeds'of the'Snyder .swearingen' v.' Birc.1I."i 4YeRtes;;· 622; ,Steimetci·'V. Ownifl,. 'liDallas,' 234:;. Wilson Whitakett;, 3; iPM]a.:' 368,;, 'Hunt \Brun&'f.16 .Ehilp.o'; Flemming.v', j 'E/.os, P1'ingle v. Gaw, 6 Sergo & R. 298; Willing v. Brown, ld. 4:57; Hillv.
836
FEDERAL REPORTER.
Oity, 2 Phila.i351; Stack v. Patter8on, 6 Phila. 225; Machette v. Le8sig, 9 Phila.132; Webbv.Mears, 4Phila.321; Mclnto8hv. Ohurch, 3 Phila. 33; Andtits v. Wo(f, 7 Phila. 106; Whitaker v. Oity, 2 We'ekly' Notes, 619; Wamsher v. Shoemaker, 4 Weekly Notes, 73; Ernmet v. Robinson, '2 Yeates, 514.
This court has decided that there are banks of issue in Pennsylvania, authorized to receive a greater rate of discount than. 6 per cent. Fir8t Nat. Bank Mt. Pleasant v;- Duncan, 6 Weekly Notes, 158. The deeiEiions of the'upreme court of Pennsylvania construing a statute of the United StatM are not binding on .the federal courts. All bAnks may issue circulating notes unless 'prohibited by their charters. The issue of negotiable paper is an inherent right in every corporation unless expressly denied them. None of the charters offered in evidence prohibit the banksthereuy £rotn}ssuing circulating notes. The general banking act of .ApriI16, 1850, (P. L. 477,) to which many of the banks named were subject, permitted the issue of circulating notes in express tel·ms. Th'e plaintiffs can only double the excess over the lega:lJ:ate. Hintermi8ter v. First Nat. Bank, 64N. Y. 212.' The plaintiffs can recover, if' at all, only double 'the usurious interest actually paid by them, hence'the jury should deduct the Snyder notes from the amount claimed by the plaintiffs as received by the·bank. . H. T. Ames, (with him Fl. O. Par80ns and H. O. McOormick,) contra. The verdict of the jury on questions of fact ought not to be disturbed. There was some doubt as to the amount of the Snyder notes, and the finding of the jury should be conclusive. The deduction of the Snyder notes was virtually an offset, which is not allowed an action to recover a penalty. Lebanon Nat. Bank v. Karmany, 11 Weekly Notes, 42; Bletz v. Oolumbia Nat. Bank, 6 Norris, 87; First Nat. Bank Olarion v. Gruber, B Weekly Notes, 119 j Columbia Nat. Bank v. Bletz, Oct. T. Sup. Ct. at Pbg. These cases settle the law of Pennsylvania that there are no banks of issue in this state authorized to charge interest at a higher rate than 6 per cent.; and these decisions being constructions of local statutes: are binding on the federal .courts in Pennsylvania. The 'plaintiffs are entitled to reoover double the whole amount of the discount paid-not only twice the amount of the excess over the
CAREY
V.
CUNARD STEAM-SHIP 00.
337
legal rate. Lebanon Nat. Bank v. Karmany, ,upra; Oolumbia Nat. Bank v. Bletz, supra. · Eo Die. THE COURT. The Snyder notes should have been deducted before the discount was doubled. That would not be an offset to a penalty. When the bank credited the plaintiffs with the proceeds of these notes, there was no appropriatio1.l of their amount by either party, and 8S the plaintiffs made,no direct payment to the bank of the discount on the accommodation paper, be equitable to make such deduction; for to the extent of notes the discount had not been paid by the plaintiffs. ' , The deduction should have been made of the amount, of the note!) less the sum 'paid by t,hepenalty bears no interest, neither should there be an,y'interest 'on the Snyder notes. Rule absolute"nnlees plaintiffs ;within 10 days remit from thever-' diet all abov:e'o$2.150.3.... Oral opinion by McKENNAN, J. jA:CHEsoN,' J., concurring.
aiUlwed
/
SHERMAN V.LANDON and (Oircuit Court, 8. .
n. New
York. January 23,1883.) , /
SHIPMAN,J. The motion of the defendan' .tor above..entitled cause is denied.1
lAo
new trial, in the
CAREY v. CUNARD STEAM-SHIP Co.(Oircuit Oourt, 8. D. Nel/) York., .January 26, 1883.) ·
SHIPMAN, J. The motion of the defendant in the ahol"e-ent.itled cause for, a new'trial is denied,and the stage of proceeiliuge eated. *4ffirmed., . See 7. Sup. C\. Rep. 1860.
v.15,no.4-:'22