Hayward v. Eliot National Bank. * He says that he felt "too cast couldn't help himself, nor * * bank for the value of the stock. away to speak to anybody; pay the loan; cared very little about any thing." If he was entitled to repudiate the sale as soon as notified of it, and compel the bank to recover the stock, such a course would have profited him nothing, since the three directors paid more than the stock was at the time worth, and since, also, the bank, under its express authority to sell, could have put it at once upon the market. It was this consideration which perhaps induced him to remain silent and inactive for more than three years and a half after the sale. During all that period he neither paid, nor offered to pay, any interest to the bank, although his present suit rests upon the basis that the bank had all the time an unsettled account with him, embracing an actual subsisting debt, upon which, he now concedes, it is entitled to interest. For three years and a half he permitted the bank officers and the purchasing directors to act in the belief that he was content with their action, and that the money realized from the sale had been properly applied to the payment of his indebtedness. Although conversant all the time of the market value of such stock, he made no demand upon the mining company for dividends declared, nor did he protest against the payment of them to others. Finally, the extraordinary advance in the market price of the stock caused him to break the silence which he had so long and so persistently maintained, and in March, 1872, he formally notified the bank of his desire and purpose to redeem the stock, although he knew, or could have ascertained by the slightest diligence, upon inquiry either at the bank or the office of the mining company in Boston, that the bank had not held or controlled the stock in any form, directly or indirectly, after the sale in September, 1868. The facts present insuperable obstacles to any decree in favor of the appellant. If the sale made by the bank was originally impeachable by Hayward, the right to question its validity was lost by acquiescence upon his part. He was in a condition, immediately after the sale, to enforce such rights as the law gave him. He was fully apprised of the nature of those rights, and of all the material facts of the case. He now claims that the sale was in deroga Hayward v. Eliot National Bank. tion of his rights and injurious to his interests, and yet his conduct was uniformly inconsistent with any purpose to repudiate the sale or assert ownership of the stock. His course was continuously such as to induce a reasonable belief of his fixed determination to abide by the action of the bank. He remained silent when he should have spoken. He will not be heard now, when he should be silent. He must be held to have waived and abandoned the any he had, to impeach the transaction of September 8, right, if 1868. 4. But the appellant is equally concluded by the lapse of time during which that transaction has been allowed to stand, without any effort upon his part to impeach it. It must now be regarded as unimpeachable. Courts of equity often treat lapse of time, less than that prescribed by the statute of limitation, as a presumptive bar, on the ground" of discouraging stale claims, or gross laches, or unexplained acquiescence in the assertion of an adverse right.” 2 Story's Eq. Jur., § 1,520. In Smith v. Clay, Ambler, 645, Lord CAMDEN said: "A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, when the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. When these are wanting the court is passive and does nothing. Laches and neglect are always discountenanced." These doctrines have received the approval of this court in numerous cases. Badger v. Badger, 2 Wall. 294; Marsh v. Whitmore, 21 id. 178; Twin Lick Oil Co. v. Marbury, 91 U. S. 592; Harwood v. Railroad Co., 17 Wall. 81. In the last-named case this court said that, without reference to any statute of limitation, equity has adopted the principle that the delay which will defeat a recovery must depend upon the particular circumstances of each case. The question of acquiescence or delay may often be controlled by the nature of the property which is the subject of litigation. "A delay which might have been of no consequence in an ordinary case may be amply sufficient to bar relief when the property is of a speculative charactor, or is subject to contingencies, or where the Wheeler v. Union National Bank of Pittsburg. rights and liabilities of others have been in the mean time varied. If the property is of a speculative or precarious nature it is the duty of a man complaining of fraud to put forward his complaint at the earliest possible time. He cannot be allowed to remain passive, prepared to affirm the transaction if the concern should prosper, or to repudiate it if that should prove to his advantage." Kerr on Mistake and Fraud (Bump's ed.), 306, 302; 91 U. S. 592. If Hayward was defrauded of his stock-if the title did not pass from him or the bank because of the peculiar relations which the purchasers held to him and to the property if he had the right originally upon any ground to repudiate the sale and reclaim the stock, it was incumbent upon him, by every consideration of fairness, to act with diligence, and before any material change in the circumstances and in the value of the stock had intervened. No sufficient reason is given for the delay in suing. His property or pecuniary embarrassment was not a sufficient excuse for postponing the assertion of his rights. He should be deemed to have made a final election not to disturb the sale of 1868, and a court of equity should not permit him, under the circumstances, to recall that election. Upon the grounds, then, both of acquiescence and lapse of time, he should be held to have forfeited all right to relief in a court of equity. For the reasons given, and without discussing other questions of minor importance, the decree should be affirmed. And it is so ordered. WHEELER V. UNION NATIONAL BANK OF PITTSBURG. (96 U. S. 785.) National Currency Act — Construction of: liberal forfeitures not favored. The National Currency Act should be liberally construed to effect the ends for which it was passed, but a forfeiture under its provisions should not be declared unless the facts upon which it rests are clearly established. In case of a claim of forfeiture against a bank for taking unlawful interest upon the discount of bills of exchange payable at another place, it should appear VOL. II -- 2 Wheeler v. Union National Bank of Pittsburg. affirmatively that the bank knowingly received or reserved an amount in excess of the statutory rate of interest and the current exchange for sight drafts. Accordingly, where it was not shown what the rate of exchange was, a charge of one-quarter of one per cent in addition to the statutory rate of interest would not be sufficient to authorize a forfeiture. IN error. The opinion states the case. N error to the Superior Court of the city and county of New HARLAN, J. The controlling question presented in this case for our determination involves the construction of the National Currency Act of June 3, 1864, which declares that "the knowingly taking, receiving, reserving, or charging a rate of interest greater" than that "allowed by the laws of the State or Territory where the bank is located," shall be "held and adjudged a forfeiture of the entire interest which the bill, note, or other evidence of debt carries with it, or which has been agreed to be paid thereon." 13 Stat. 108. The same section also declares: "But the purchase, discount, or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount, or sale, at not more than the current rate of exchange for sight drafts in addition to the interest, shall not be considered as taking or receiving a greater rate of interest." 13 Stat. 108. Wheeler, the plaintiff in error, was sued as indorser upon two bills of exchange, drawn at Brady's Bend, Pennsylvania, payable sixty days after date at the American Exchange Bank, in New York, and discounted by the Union National Bank of Pittsburg for the benefit of the Brady's Bend Iron Company, a corporation created under the laws of Pennsylvania. Wheeler claims that the bank, under the provisions of the statute, forfeited the entire interest which the bills carried, or which was agreed to be paid. This claim was denied, first in the Superior Court for the city and county of New York, where this action was commenced, and subsequently, in the Court of Appeals of that State. No question having been raised as to the bona fide character of the bills, the bank had, by the express words of the statute, the right to charge and receive the current rate of exchange for sight drafts in addition to interest at the rate of six per cent, per annum, which is the rate fixed by general statute in the State of Pennsyl Wheeler v. Union National Bank of Pittsburg. vania. But upon examining the special finding of facts upon which the State court based its judgment, we discover no evidence of the current rate of exchange at the date of discount. That exchange was in fact charged, cannot be gainsayed by Wheeler, since he avers, in his answer, that the bills were discounted under an usurious agreement that the bank should receive, in addition to certain interest, in excess of the statutory rate, commissions or exchange of one-quarter of one per cent. No such agreement was, however, proven. Indeed, the record furnishes no evidence of any distinct agreement either as to the amount of interest or exchange to be reserved by the bank upon discounting the bills. Nothing seems to have been said at the time of discount as to the amount to be reserved by way of interest or upon the subject of exchange, and the court refused, upon the request of Wheeler, to find it as a fact in the case, that "no exchange was charged." While it may be inferred that exchange was charged by the bank, we are uninformed by the record whether it exceeded the current rate for sight drafts. The statute should be liberally construed to effect the ends for which it was passed, but a forfeiture under its provisions should not be declared unless the facts upon which it must rest are clearly established. It should appear affirmatively that the bank knowingly received or reserved an amount in excess of the statutory rate of interest, and the current exchange for sight drafts. There is no proof of the rate of exchange, and since the courts uniformly incline against the declaration of a forfeiture, the party seeking such declaration should be held to make convincing proof of every fact essential to forfeiture. It is unnecessary to consider any other question in the case. The judgment must be affirmed. |