Brown v. Second National Bank

The opinion of the court was delivered, by Sharswood, J. — A close examination of the words of the Act of Congress of June 3d 1864, under which the defendants in error were organized and incorporated as a National Bank, will show, we think, that it was intended to draw a distinction between the case of the reservation of a discount at an unlawful rate of interest and the actual consummation of the usury by the receipt of it by the payment of the note or loan when due. It is declared by the thirtieth section that “the knowingly receiving, reserving or charging a rate of interest greater than aforesaid shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence carries with it, or which was agreed to be paid thereon.” This has evident reference to the enforcement of the contract by judicial process, in which case it is provided that it shall be held and adjudged that the bank shall forfeit the entire interest — that is, shall recover only the sum actually loaned or advanced without any interest at all. There is a marked difference in the language of the clause which follows and which makes provision for the case where the usury had been consummated by the actual receipt by the bank of the usury. “And in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back in any action of debt twice the amount of interest thus paid from the association taking or receiving the same : Provided, that such action is commenced within two years from the time the usurious transaction occurred.” Upon any other construction it would be difficult to make the different clauses of the section consistent. For if on payment simple interest is forfeited, why not also provide for its recovery back by action as well as for the penalty of double the amount ? Nothing would have been easier than to have expressed the intention that the entire interest should be recovered back in all cases, but double the amount only by an action instituted within two years. The maxim well appli es, Expressio unius est exclusio alterius. If there were no special limitations in the act, and it has no necessary connection with the other clauses, no consistent construction could be put upon the language of the section taken altogether, except by holding that no action can be maintained for the simple interest, neither before or after it is paid; but as to that, the remedy is by defence to the action on the note or loan, in which case the entire interest “ shall be held and adjudged ” to be forfeited. There maybe a good reason for this if it was the intention of Congress to give the bank a locus poenitentice so far as the penalty of double the amount was concerned, and allow them to save it by not actually taking it upon the maturity and payment [214] of the debt. This accords with the general current of the decisions upon the construction of the usury laws whenever the contract is not itself declared to be void by the statutes. It is actual payment on the foot of the usurious contract, either in part or in whole, which consummates the usury, and from which the limitation of the action for the penalty commences to run, but lawful interest may be recovered in an action for the principal: Wycoff v. Longhead, 2 Dall. 92; Turner v. Calvert, 12 S. & R. 46; Musgrave v. Gibbs, 1 Dall. 216; Kirkpatrick v. Houston, 4 W. & S. 115; Lamb v. Lindsey, Id. 44; Thomas v. Shoemaker, 6 W. & S. 179; Oyster v. Longnecker, 4 Harris 269; Craig v. Pleiss, 2 Casey 271. These views dispose of the only assignments of error which we consider it necessary to discuss. Judgment affirmed.