Importers' & Traders' National Bank v. Littell

[507] The opinion of the court was delivered by Van Syckel, J. This suit is brought against the drawer alone, to recover the amount due upon certain promissory notes made in New York. The second plea alleges that the notes were discounted by the plaintiff bank in New York for the payees at usurious rates, and that by virtue of the New York statute the entire debt is forfeited. The third plea sets up that by reason of the usurious agreement, the plaintiff, under the national banking act passed in 1864, has forfeited the entire interest. The question is, whether these pleas shall be stricken out.. The second plea raises the question whether the federal act supersedes the state law, imposing penalties for usury, in SO' far as they are applicable to national banks. This is res adjudícala in the Supreme Court of the United Slates. In Farmers’ Nat. Bank v. Dearing, 91 U. S. 29, Mr. Justice Swayne delivered the opinion of the court, overruling First Nat. Bank v. Lamb, 50 N. Y. 95, and denying the efficacy of the state law to work the forfeiture of the debt. The third plea raises the question whether the maker of these notes can avail himself of the defence which undoubtedly could be set up by the endorsers, had they been sued ? This plea purports to be a plea in bar to the entire action,, while it concludes by stating that the plaintiff has forfeited the interest upon the notes, and can recover 'only of the defendant the principal thereof. In form the plea is clearly bad and must be stricken out. If the maker of the note is entitled to set up the usurious contract between plaintiff and the endorser, it is not necessary to. plead the federal statute specially; he may avail himself of it under general issue.