STEPHENS
v.
MONONGAHELA BANK
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The Supreme Court held that a surety on a promissory note cannot defend against a suit for the note's principal by claiming that usurious interest was paid, because a surety has no better legal position than the principal maker in asserting defenses based on statutory remedies for usury. The Court affirmed the judgment for the bank, finding that the statutory right to recover usurious interest and its prescribed remedy are exclusive, and that the defendant's defense was improperly pleaded because it failed to allege that the note itself included unpaid stipulated interest.
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Mr. Chief Justice Waite delivered.the opinion of the court.
As to the first of these defences, it is sufficient to say that the plea of another action pending is a plea in abatement, Baa. Abr. Abatement M; Com. Dig. Abatement H, 24; 1 Chitty’s Pl. 10, Am. Ed. 453 ; 3 id. 903, note y; and by § 1011 of the Rev. Stat. which is a re-enactment of a similar provision in the Judiciary Act of Sept. 24, 1789, c. 20, sec. 22,1 Stat. 84, 85, it is expressly provided that there shall be no reversal in this court or the Circuit Court for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court. Under this statute, it was held in Piquignot v. The Pennsylvania Railroad Company, 16 How. 104, which came from the same district as this case, that the judgment of the Circuit Court, on precisely such a plea as that contemplated by this affidavit of defence, was £< not subject to our revision on a writ of error.” The defence is one which merely defeats the present proceeding, and does not conclude the plaintiff forever, either as to his right to sue in the Circuit Court of the United States, or as to the merits of the matter in dispute.
All the other defences are covered by the decision of this court in Barnet v. National Bank, 98 U. S.
555. The only difference between that case and this is that • there the defendant was the maker of the note who actually paid the usurious interest, and here the defendant is the surety of the maker. It is difficult to see how the surety stands, as to the question now presented, in any better position than his principal. The ground of that decision was, that as without the statute there could be no reeovéry from the bank for usurious interest actually paid, and as the statute which created the right to such a recovery also prescribed the remedy, that remedy was exclusive of all others for the enforcement of that right. Farmers' & Mechanics' National Bank v. Dearing, 91 U. S. 29., The surety has not any more than his principal the right to recover back the interest without the aid of a statute.
Consequently, if his principal could not make this defence, he cannot. The forfeiture and the remedy are creatures of the same statute, and must stand or fall together. The defence, as stated in the affidavit, is not that interest stipulated for has been included in the note, but that interest actually paid at the time of the discount and the several renewals should be applied to the discharge of the principal. In this particular, the case presents the same facts substantially as Driesbach v. National Bank, 104 U. S.
52. To entitle the defendant to such relief as was given in Farmers' & Mechanics' Bank v. Dearing, cited above, it should be made to appear by distinct averment that the note sued on includes' interest stipulated for and not paid, as well as principal. That has not 'been done is this case.
Judgment affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Cont'l Wall Paper Co. v. Voight, 212 U.S. 227 (U.S. 1909)…violation of the statute was a forfeiture of the interest due and not paid, or in case the interest had been paid an action of debt to recover double the amount paid. See also Oates v. National Bank, 100 U. S. 239. In Stephens v. Monongahela Bank, 111 U. S. 197, it was decided that the remedy prescribed by the statute was exclusive. In Driesbach v. National Bank, 104 U. S. 52, it was held that usurious interest paid a national bank on renewing a series of [*274] notes could not in an action by the bank on…
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D. R. Wilder Mfg. Co. v. Corn Prods. Ref. Co., 236 U.S. 165 (U.S. 1915)…ishment or the remedy [*175] can be only that which the statute prescribes.” Farmers' & Mechanics’ National Bank v. Dealing, 91 U. S. 29, 35; Barnet v. National Bank, 98 U. S. 555; Oates v. National Bank, 100 U. S. 239; Stephens v. Monongahela Bank, 111 U. S. 197; Tenn. Coal Co. v. George, 233 U. S. 354, 359; Second, because of the destruction of the powers conferred by the statute and the frustration of the remedies which it creates which wouldk obviously result from admitting the right of an individual as…
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Tucker v. Alexandroff, 183 U.S. 424 (U.S. 1902)…edy isexclu-sive, although in the absence of such a remedy the defence might be made by way of set off or credit upon the original demand. Barnet v. National Bank, 98 U. S. 555; Driesbach v. National Bank, 104 U. S. 52; Stephens v. Monongahela Bank, 111 U. S. 197; Haseltine v. Central National Bank, [*437] ante, 130.) See also King v. Sedgley, 2 Barn. Ad. 65; Hare v. Horton, 5 Ibid. 715; Stafford v. Ingersoll, 3 Hill, 38. ¥e think, then, that the rights of the parties must be "determined by the treaty, but…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Farmers' & Mechanics' Nat'l Bank v. Dearing, 91 U.S. 29 (U.S. 1875)
- Barnet v. Nat'l Bank, 98 U.S. 555 (U.S. 1878)
- Driesbach v. Nat'l Bank, 104 U.S. 52 (U.S. 1881)
- Piquignot v. The Pa. R.R. Co., 16 How. 104 (U.S. 1853)