Dow v. Irasburgh National Bank of Orleans. State court had not jurisdiction, and that for such recovery, the jurisdiction is exclusive in the Federal courts. Whatever might be true in this respect if the suit had been brought to recover the forfeiture of twice the amount of interest thus paid, counting on the U. S. Rev. Stats., § 5198,* in the case in hand the plaintiff does not sue for the forfeiture, but only for the excess above six per cent. The claim is not for a penalty, nor does the suit partake of the character of a penal action. The suit is the same that would be brought to recover money paid as usury under the law of Vermont, which provides that the taking of usury shall subject the taker to a suit and recovery for the excess above six per cent. This case therefore does not fall within either constitutional or statutory provision, by which exclusive jurisdiction is given to the Federal courts of all matters of crime arising upon and under the Constitution and the laws of Congress. Moreover, section 75 of the Banking Act of June 3, 1864, ch. 106, continued in force by ch. 80 of the act of February 18, 1875, expressly confers jurisdiction on State courts of suits, actions and proceedings against any association under said Banking Law, if said courts would have jurisdiction of similar cases under State laws. The county courts of Vermont have jurisdiction of suits and proceedings for the recovery of money paid as usury. So that this case is within the terms and intent of that act of Congress. We have the note of a case in which the Supreme Court of Maryland, in 1877, held that the State court has such jurisdiction, and that the penalties and forfeitures of which exclusive jurisdiction is given to the Federal courts by section 711 of Rev. Stat. U. S., contemplates only those penalties and forfeitures of a public nature which may be sued for by the government, or some person in its behalf.+ In Steadman v. Redfield, 2 Am. Law Times, 624, the Supreme Court of Tennessee, in 1874, decided that the National Currency Act does not prevent an action in a State court against a National * See Hade v. McVay, 31 Ohio St. 231, ante, p. 353. + See Ordway v. Cent. Nat. Bank of Baltimore, Thomp. N. B. Cas. 559. Dow v. Irasburgh National Bank of Orleans. bank, to recover an amount usuriously received in violation of State laws. In First Nat. Bank of Whitehall v. Lamb, 50 N. Y. 95; s. c., 10 Am. Rep. 438, and in Bank v. Hale, 59 N. Y. 53, it was held that National banks are subject to the usury laws of the States in which they are located, and that the penalty of the State laws. may be enforced in the State courts. In Cook v. Nat. Bank of Boston, 52 N. Y. 96; s. c., 11 Am. Rep. 667; Thomp. N. B. Cas. 698, it was held that a Massachusetts National bank may be sued in a New York State court, while in Central Nat. Bank v. Pratt, 115 Mass. 539; s. c., 15 Am. Rep. 138; Thomp. N. B. Cas. 595, it was held that National banks are subject only to the laws of Congress as to usury, and the penalty for it, but the jurisdiction of the State courts in that respect is not questioned. Upon the subjection of National banks to State laws, see Nat. Bank v. Com., 9 Wall. 362; Thomp. N. B. Cas. 34, in which it is said: “It is only when State law incapacitates them from discharging their duties to the government, that it becomes unconstitutional." In view of the act of Congress conferring jurisdiction on the State courts, and of the cases above cited, we have no hesitation in holding that the State courts of Vermont may take and exercise the jurisdiction thus conferred. It is not necessary, in disposing of the motion in this case, to decide the question, whether the banks, as to usury, are subject to State laws, as held in New York, or only subject to Federal laws, as held in Massachusetts, nor whether, in order to recover the forfeiture, as such, provided in said section 5198 of the Revised Statutes, it would be necessary to count expressly on that section; nor whether, in the present suit, the right of recovery would be limited to two years next prior to the bringing of the suit; or on the other hand, whether the money paid to the bank as usury is to be regarded as having become forfeited on the fact of payment, by reason of being received in violation of law, and so the bank would be holding it without right, and to the use of the party paying it, and therefore it might be recovered in this action at whatever time received within our own statute limitation. Under the motion the Howard National Bank of Burlington v. Loomis. only question is, can the action be maintained for any purpose? For what the plaintiff may recover in the action is to be determined on the trial under legitimate pleadings, and not upon this motion, by anticipation, and with such limited scope of argument as was addressed to us upon the hearing on this bill of exceptions. The pro forma judgment is reversed, and cause remanded. Judgment reversed. HOWARD NATIONAL BANK OF BURLINGTON V. LOOMIS. (51 Vt. 349.) Power to take mortgage of realty. A National bank may take a mortgage of real estate, to secure an antecedent indebtedness, at the time of renewing, and under an agreement for future renewals of the notes evidencing the debt. FORE NORECLOSURE. The answer averred that on the day of the execution of the mortgage, it was agreed between the mortgagor and the petitioner that if the mortgagor would execute and deliver said mortgage, the petitioner would discount the note therein described and the notes from time to time given in renewal thereof, and that the mortgage should stand as security for each and all of the notes; that notes were given and renewed in accordance with that agreement; that the previously contracted debt, if any such there was, had been paid; that the petitioner was a corporation organized under the National Banking Act; and that the mortgage was void. The opinion states other facts. The petitioner had a decree below. Wm. G. Shaw, for petitionee Howard. A mortgage to be good under the statute must be for the collection and enforcement of a pre-existing debt, not for its extension and indefinite maintenance. Rev. Stats. U. S., § 5137; Fowler v. Scully, 72 Penn. St. 456; s. c., 13 Am. Rep. 699; Thomp. N. B. Cas. 854; Matthews v. Skinker, 62 Mo. 329; s. c., 21 Am. Rep. 425; Thomp. N. B. Cas. 647; Croeker v. Whitney, id., 745; Wiley Howard National Bank of Burlington v. Loomis. v. First Nat. Bank of Brattleboro, 47 Vt. 546; 19 Am. Rep. 122; Thomp. N. B. Cas. 905; Whitney v. First Nat. Bank of Brattleboro, 50 Vt. 388; s. c., 28 Am. Rep. 503 (ante, p. 69, note). Cases like Kansas Valley Nat. Bank v. Rowell, 2 Dill. 371; s. c., Thomp. N. B. Cas. 264, which hold that mortgages given to secure both pre-existing debts and contemporaneous or future advances, may be good as to the former, but invalid as to the latter, are distinguishable from this. Russell S. Taft, for petitioner. POWERS, J. The evidence in the case establishes the fact that at the time the petitioner's mortgage was executed no loan of money was made to the defendant Loomis. Loomis was already a debtor to the bank for the full sum covered by the mortgage, and becoming insolvent, the bank procured the execution of the mortgage, not to secure a present loan, not to secure future advances, but to secure his old debt. No question can be made as to the good faith of the bank in taking the security. The provision for a renewal of the note does not have the effect to make the renewed notes evidence of new advances. The mortgage is exe. cuted to secure the past advance of money. The new notes are the evidence of the old debt. The mischief sought to be guarded against in the statute prohibiting the loan of money by National banks upon a pledge of real estate security is, the possible investment of their funds in real estate, and that hazard was incurred when the old debt was secured by this mortgage. The provisions for the renewal of the notes made it less probable that the title would vest in the bank than an immediate foreclosure of Loomis' equity. In view of Union National Bank v. Matthews, 97 U. S. (ante, p. 12), is the defense here set up valid? In that case the Supreme Court of the United States, whose construction of an act of Congress is paramount, seem to deny the right of the mortgagor and those claiming under him to avoid the mortgage deed on the ground of the want of power in the bank to take it. The doctrine of ultra vires, which is getting to be quite fashionable VOL. II-54 Wroten's Assignee v. Armat. with the profession, ought not to be invoked to effectuate injustice, where it can be avoided. Farmers Bank v. Burchard, 33 Vt. 346. The decree is affirmed, and the cause remanded. WROTEN'S ASSIGNEE V. ARMAT. (31 Grattan, 228.) Mortgage as security for loans. A National bank is not prohibited from taking real estate security for loans. THE HE opinion states the point, which was as to priority of mortgages. Goodrich, Little & Wallace, for appellant. Marye & Fitzhugh, for appellees. MONCURE, P. Three questions are presented to us for our decision in this case, either one of which seems to be conclusive of it. They are first, that upon general principles the National Bank of Fredericksburg is entitled to priority of payment of the debt due to it by the Exchange Hotel Company of Fredericksburg over the debt due by the said company to the appellant, A. B. Botts, assignee in bankruptcy of George W. Wroten, which said debts are in the proceedings mentioned and described; secondly, that upon the principle of equitable estoppel, such right of priority certainly exists; and thirdly, that the appellant was certainly entitled to no relief by bill of review. We will consider these questions in the order in which they are above stated. First. That upon general principles the National Bank of Fredericksburg is entitled to priority of payment of the debt due to it by the Exchange Hotel Company of Fredericksburg over the debt due by the said company to the appellant, A. B. Botts, as assignee in bankruptcy of George W. Wroten. The deed of trust under which the said bank claims, bearing |