Mix v. National Bank of Bloomington. ness, such purchase is lawful. If the purpose of the purchase is to speculate in real estate, under the form or pretense of attaining the satisfaction of a previous debt, such purchase, it is conceived, is forbidden by both the letter and spirit of the statute. Where the amount of the debt satisfied by such a purchase is very small, and the amount to be paid to discharge the incumbrances is very large, such fact may well be considered in ascertaining the real purpose of the transaction, and might tend strongly to show an unlawful purpose. In the case at bar, there is no ground of suspicion that the bank officers were moved by any motive other than to save the doubtful debt on the $7,500 note, and accomplish its satisfaction. The judgment of the Circuit Court must be affirmed. NOTE BY THE REPORTER.-See Worcester Nat. Bk. v. Cheney, ante, p. 227, to the same effect. In Mapes v. Scott, 94 Ill. 379, the court said: "The plaintiffs, In establishing their chain of title, offered in evidence two certain deeds made to the First National Bank, Jacksonville. It is in sisted by the defendants that these deeds should have been excluded that the bank could not take and convey real property. Testimony was introduced tending to prove that the bank acquired the property in payment of a pre-existing debt. There can be no doubt in regard to the right of a National bank to acquire real estate in Judgment affirmed. satisfaction of a pre-existing indebtedness. In Mapes v. Scott, 88 III. 352, this point was expressly decided. But independent of this view, the right of the bank to acquire the property could not be raised in this collateral manner. Conveyances to a National bank must for all purposes be regarded as valid until called in question by a direct proceeding instituted for that purpose by the government, as held in National Bank v. Matthews, 8 Otto, 621 (ante, p. 12). As this decision of the Supreme Court of the United States involves a construction of an act of Congress, it is paramount and must prevail." M v. NATIONAL BANK OF BLOOMINGTON. (91 Ill. 20.) - certificate of Comptroller of Currency. Evidence of existence of bank In an action by a National bank on a note, where the existence of the corporation is denied, the certificate of the Comptroller of the Currency, under section 22 of the National Banking Act, that the association had complied with the law and was authorized to do banking business, was competent Mix v. National Bank of Bloomington. evidence, and in connection with proof that the association had done banking business for several years, and the fact that the note was in terms payable at the bank, makes a prima facie case. * A CTION on a promissory note. The opinion states the facts. The plaintiff had judgment below. Stephen R. Moore, for appellant. O. W. Aldrich and T. C. Kerrick, for appellee. SHELDON, J. This was a suit brought by the National Bank of Bloomington, as indorsee, upon a promissory note made by the defendant to one C. M. Nichols, and indorsed by the latter to the plaintiff, as follows: "$2,745.25. BLOOMINGTON, ILL., April 28, 1875. Six months after date I promise to pay C. M. Nichols $2,745.25, at National Bank of Bloomington, Illinois. Value received, with interest at ten per cent per annum from date if not paid at maturity. "Indorsed: C. M. NICHOLS.” JAMES MIX." Besides the general issue, there were the pleas of nul tiel corporation, non est factum verified by affidavit, and partial failure of consideration, upon which issues were joined, and found by the jury in favor of the plaintiff, and damages assessed to the amount of the note and interest, upon which judgment was rendered, and the defendant appealed. It is objected, that under the issue upon the plea of nul tiel corporation, the court below admitted in evidence the certificate of the Comptroller of the Currency issued under section 22 of the National Bank Act (U. S. Stat., § 5169), providing (after the association of individuals desiring to organize a National bank has done certain things as required by 8 13) that "the Comptroller shall give to such association a certificate, under his hand and official seal, that such association has complied with all the provisions required to be complied with before commencing the *To same effect, Thatcher v. West River Nat. Bank, Thomp. N. B. Cas. 622, and Casey v. Galli, id. 142. VOL. II-30 National Bank of Winterset v. Eyre. business of banking, and that such association is authorized to commence business." There was, besides, evidence that the bank had been acting as a National bank for eleven years; and the existence of the bank is acknowledged in the note signed by the defendant, it being made payable at the bank. We think the certificate was properly enough received in evidence, and that the evidence was amply sufficient to establish, at least prima facie, the existence of the corporation. [Omitting other questions.] Judgment affirmed. NATIONAL BANK OF WINTERSET V. EYRE. (2 North Western Reporter, 995.) Usury - penalties. Where a National bank lends money upon a usurious contract, and attempts to enforce such contract in a State court, the defendant may insist upon such usury as a defense. (Supreme Court of Iowa.) CTION upon a promissory note. Defense of usury. The plaintiff had judgment below. Wainright & Miller, for appellants. Leonard & Steele and McCaughan & Dabney, for appellee. ADAMS, J. 1. Where a National bank loans money upon a usurious contract, such penalties, and only such, can be enforced as are provided in the National Banking Act. Farmers & Mechanics' National Bank v. Dearing, 1 Otto, 29; Thomp. N. B. Cas. 117. Such being the law, it is insisted by the plaintiff that the plea of usury against a National bank can be maintained only in a Federal court. The argument is that the forfeiture provided is strictly in the nature of a penalty, and that only United States courts have jurisdiction to punish offenses arising under a United States statute. The plaintiff relies upon section 711 of the Revised Statutes of the United States, which provides, in substance, that the National Bank of Winterset v. Eyre. United States courts shall have exclusive jurisdiction of all suits for penalties and forfeitures incurred under the laws of the United States; and while an attempt was made in the National Banking Act to confer upon State courts jurisdiction in all proceedings against any association organized under the act, yet it is said that the attempt is wholly nugatory, because it is not within the power of Congress to add to or enlarge the jurisdiction of State courts. Upon this point the plaintiff cites Martin v. Hunter's Lessees, 1 Wheat. 304; Houston v. Moore, 5 id. 1; and Missouri River Tel. Co. v. First National Bank of Sioux City, 74 Ill. 217; s. c., Thomp. N. B. Cas. 401. In the view which we take of the case it is not necessary to determine whether it is within the power of Congress to confer upon a State court jurisdiction of a matter of which it has not already jurisdiction under the Constitution and laws of the State in which the court exists. The provision in question should certainly be deemed sufficient to evince the intention on the part of Congress that the jurisdiction of the Federal courts should not be held to be exclusive. We come, then, to the question as to whether, under the Constitution and laws of Iowa, the court below had jurisdiction to entertain and determine the question raised in the defendant's answer. The plaintiff contends that it had not, and that, too, independent of the provision cited, giving United States courts exclusive jurisdiction in suits to enforce penalties and forfeitures. Upon general principles it is said that the penal statutes of any sovereignty can be enforced only by the courts which belong to that sovereignty. Without denying that in a certain sense the doctrine enunciated is correct, we are disposed to think that it would be carrying the doctrine too far to hold that a borrower of money from a National bank, at a rate of interest which is usurious, cannot, when sued by the bank in a State court to recover interest, maintain the plea of usury as a defense in the same court. No court, so far as we have been able to discover, has so held. It is true that in Newall v. National Bank of Somerset, 12 Bush, 57; Thomp. N. B. Cas. 501, an action brought to recover for a loan in which said: National Bank of Winterset v. Eyre. the defendants (plaintiffs in error) pleaded usury, the court "The courts of this State have not, up to this time, undertaken to enforce penalties arising under the laws of the government of the United States, and this case presents no sufficient reason to authorize the inauguration of a new judicial policy." In that case, however, the court found that there was no usury, and the remark quoted can hardly be deemed as having the force of authority. The case of the Missouri River Telegraph Company v. First National Bank of Sioux City, above cited, while not strictly in point, tends, it must be conceded, to support the doctrine which the plaintiff seeks to maintain. The action was brought to recover for usurious interest paid. It was held that as the defendant bank was located in Iowa, and the action was brought to recover under a statute of the United States essentially penal in its character, a State court of Illinois could not take jurisdiction. Where usurious interest is paid to a National bank upon usurious contract made with the bank, the statute allows the borrower to recover back double the amount of usurious interest paid. It is manifest that the provision of the statute which allows such a recovery is more strictly penal in its character than the provision which simply allows usury to be pleaded as a defense. The plaintiff's statement in his petition that he is entitled to recover certain interest is not true. Now, in an action which is brought to enforce a claim which is not valid, it would be strange if in the same action the defendant could not be allowed to resist the claim. It is a civil right to make such resistance, and we think that he must be allowed the right, in whatever forum the claim is asserted, even though the enforcement of the right would operate in some sense as a penalty upon the plaintiff. This rule seems to us to be correct upon principle, and to be sustained by the decisions. Hade v. McVay, 31 Ohio St. 231, post; Ordway v. Central National Bank, 48 Md. 217, post; Bletz v. Columbia National Bank, Pa., 87 Penn. St., post. [Omitting the question of fact.] Reversed. |