CARTER
v.
CARUSI & Another, Executors.
Supreme Court of United States.
Argued November 24, 25, 1884. Decided December 15, 1884. IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.*482 Mr. H.O. Claughton, for plaintiff in error.
Mr. Walter D. Davidge, for defendants in error.
MR. JUSTICE WOODS delivered the opinion of the court. He recited the facts as above stated, and continued:
We are of opinion that there is no error in the charges given or in the refusal to charge as requested. The sections of the Revised Statutes relating to the District of Columbia were correctly construed by the court. Their meaning is plain. § 715 provides for the case where the party contracts to receive a greater rate of interest than ten per cent. upon a written and six per cent. upon a verbal contract, and declares that he shall forfeit the whole interest so contracted to be received, and shall recover only his principal debt. The evidence tended to show that the payment by Daniels to Carusi, the testator, of ten per cent. interest was voluntary, and that there was no contract for its payment or agreement for indulgence or extension of time for payment on account thereof. It is plain that under this section the plaintiff in error was not entitled to the charges requested by him.
§ 716 provides for the recovery, by the person who has paid a greater rate of interest than is allowed by law, upon any agreement or contract, of all interest paid on such contract or agreement, provided he brings suit to recover the same within one year after the unlawful interest shall have been paid. This *483 section, it is also clear, brings no aid to the plaintiff in error. This is not a suit to recover back usurious interest paid, but to enforce the collection of the note upon which it is contended the usurious interest was received. The plaintiff in error did not pay the unlawful interest, but it was paid by Daniels, and it was paid by him more than a year before this suit was brought, and more than a year before the defence set up by the plaintiff in error. If Daniels himself, who paid the alleged usurious interest, had brought a suit to recover it back, his action would have failed, because not begun within the time prescribed by the statute. The plaintiff in error, therefore, who has paid no interest, legal or illegal, is in no better position, at least, than Daniels, and cannot set up the provisions of § 716 in his defence. Under neither section is the plaintiff in error entitled to any relief.
His counsel, however, contend that, if he is not entitled to relief under the statute, his common-law right to reclaim or set-off usurious interest paid still remains to him.
But this court has repeatedly decided against this contention of the plaintiff in error. In Farmers' & Mechanics' National Bank v. Dearing, 91 U.S. 29, the court declared that the penalty imposed on a national bank for taking a greater rate of interest than that allowed by the national banking act, was the loss of the entire interest, and that no loss of the entire debt was incurred by the bank as a penalty by reason of the provisions of the usury law of a State.
So in Barnet v. National Bank, 98 U.S. 555, it was held that in a suit by a national bank against the parties to a bill of exchange discounted by it, the assignees of an acceptor could not, having intervened as parties, set up, by way of counter-claim or set-off, that the bank knowingly took and was paid a greater rate of interest thereon than that allowed by law, but that, the national banking act having prescribed as a penalty for the taking of such unlawful interest that the person paying the same might, in an action of debt against the bank, recover back twice the amount so paid, he could have redress in no other form or mode of procedure.
So in Driesbach v. National Bank, 104 U.S. 52, it was held *484 that usurious interest paid to a national bank on renewing a series of notes, of which those in suit were the last, could not be applied in satisfaction of the principal of the debt. See also Cook v. Lillo, 103 U.S. 792, and Walsh v. Mayer, 111 U.S. 31. In the case last cited it was held generally that a statute which prescribes a legal rate of interest, and forbids the taking of a higher rate, under penalty of a forfeiture of the entire interest, and declares that the party paying such higher rate of interest may recover it back by suit brought within twelve months, confers no authority to apply the usurious interest actually paid to the discharge of the principal debt, and that a suit for its recovery, brought within twelve months, was the exclusive remedy.
There was, therefore, no error in the refusal of the court to charge as requested or in the charge given.
It is further assigned for error that the court neglected to give the jury any instruction upon the issue raised by the fifth plea, the plaintiff in error contending that there was evidence to support that plea, and that the court, though not requested, should have submitted to the jury the issue of fact raised by the plea. We look in vain through the record to find any evidence that would have justified the jury in returning a verdict for the defendant on the fifth plea. On the contrary, the evidence tended strongly to disprove it. The court might, therefore, without injustice to the defendant, have withdrawn from the jury the consideration of the fifth plea. Parks v. Ross, 11 How. 362, 373; Hickman v. Jones, 9 Wall. 197; Pleasants v. Fant, 22 Wall. 116; Commissioners of Marion County v. Clark, 94 U.S. 278.
But even if there had been evidence to support the plea, as it does not appear that the court was requested to charge the jury upon the issue raised thereby, the failure of the court to do so cannot be assigned for error. Express Co. v. Kountze, 8 Wall. 342.
We find no error in the record.
The judgment of the Supreme Court of the District of Columbia is affirmed.