Gruber v. First National Bank

Mr. Justice Sharswood delivered the opinion of the court, The first three assignments of error must be sustained. The answers of the learned court below to the first point of the plaintiff and to the first and second points of the defendants are based upon the ground that the state courts have no jurisdiction of an action to recover double the amount of usurious interest against a national bank, under the 30th section of the Act of Congress of June 3d 1864, entitled “An Act to provide a national currency secured by a pledge of United States bonds, and to provide for [468] the circulation and redemption thereof.” The contrary has been recently held by this court in Bletz v. The Columbia National Bank, ante, p. 87. The answer to the third point of the defendants we also think was erroneous — that the claim of the plaintiff to recover the penalty under the act of Congress, and the claim to recover the excess of interest are incongruous, and there can be no recovery for both these demands in the same action. What the plaintiff claimed was the penalties on payments made within two years of the commencement of the suit, and the excess paid before that time within the Statute of Limitations. We see nothing incongruous in these two claims. Besides the misjoinder of counts in a declaration ought properly to be taken advantage of by demurrer, in arrest of judgment, or on error. The assignment ought to have been of error in the judgment on account of such misjoinder. But there was no misjoinder. It is a mistake to suppose that the last count in the declaration — not three counts, but one count combining three money demands — is in assumpsit. It is in debt as are the other counts. No doubt if the first ten counts had been in a qui tarn action, the judgment would have been different from that on the other counts, and, therefore, there would have been a misjoinder. Bacon Abr. Action qui tam, E. But in debt for a statute penalty given wholly to the party aggrieved the judgment is quod recuperet. Judgment reversed and a venire facias de novo awarded