
    Butterworth, Receiver, &c., v. O’Brien.
    The statute (oh. 172 of 1850), to prohibit corporations from interposing the defence of usury, deprives them of the right to'recover back money paid by them in excess of legal interest
    Appeal from the Supreme Court. The complaint set forth the appointment of the plaintiff as Beceiver. of the Island City Bank, an insolvent corporation, and averred that the bank, within a year preceding the commencement of the action, had paid, and the defendant had received, on the loan or forbearance of sundry sums of money upon a corrupt or usurious agreement, the sum of at least $10,000'; for the repayment of which he prayed- judgment. The defendant demurred, upon the ground that the complaint did not state a cause of action. The defendant had judgment on the demurrer, which having been affirmed at general term in the first district, the defendant appealed to this court.
    
      Charles H. Peabody, for the appellant.
    
      Waldo Hutchins, for the respondent
   Davies, J.

This action is founded upon the provision of the Revised Statutes, which authorizes any person, or his personal representatives, who shall, on any loan or forbearance of money, have paid or delivered any greater sum than is allowed by law, to recover from the person to whom the same was paid, or by whom the same was received, the amount so paid, provided the action is brought within one year after such payment. (1 R. S., 772, § 3.) Assuming that the bank is a person within the meaning of this act, and that the plaintiff is his personal representative, we are to inquire whether the action can be maintained. The plaintiff represents the bank, and stands in its position. If the bank could maintain the action, he can; and it follows, that, if the bank could not maintain it, he cannot. He represents no greater right or higher equities in this matter than those possessed by the bank. Previous to the act of 1850, corporations, in reference to the provisions of the statute of usury, stood in the same position as individuals. They could, and did, avail themselves of the provision of the statute, to be released from their contracts affected with the taint of usury. The celebrated case of The Dry Dock Bank v. The American Life and Trust Company (3 Comst., 344), is an instance of a corporation availing itself of the statutes to prohibit usury, for the purpose of relieving itself from its contracts. It had committed usury, and had derived a benefit therefrom, and then came into a court of equity to punish its confrere in guilt by repossessing itself of the property parted with, whilst retaining for its own benefit what it had received from the opposite party. This court, in obedience to the positive mandate of the statute, had to lend its aid to the perpetration of such gross injustice. It is not surprising that an act which produced such results should have been stigmatized, by one of the learned and eminent judges of this court, as “severely penal in its provisionsthat, “in fact, it was a barbarous act, unworthy of the age and country where it was found.” (Per Brown, J.: Curtis v. Leavitt, 15 N. Y., 151.) The case of The Dry Dock Bank was decided in December, 1849, and at the ensuing session of the legislature the act of April 6,, 1850, was passed. It is well known that it was called for by that case, and it was intended to prevent a repetition of a similar transaction. It is entitled “ an act to prohibit corporations from interposing the defence of usuryand the first section declares that “ no corporation shall hereafter interpose the defence of usury in any action.” The learned judge, whose opinion in the case of Curtis v. Leavitt I have already referred to, proceeds to show that the provisions of the statute in reference to usury in favor of the borrower are in the nature of penalties, imposed on the lender, for the infraction of the statute; as they unquestionably are. And he cites authorities to sustain the position that the effect of a repealing clause upon a previous statute, which imposes a penalty, takes away all right to the penalty. The judge proceeds to say: The effect of the act of the 6th April, 1850, is to repeal the statute of usury, so far as it applies to corporations. The condition of this class of beings becomes the same as if the usury laws never existed. The title of the repealing act is significant. It is, to prohibit corporations from interposing the defence of usury in any action.’ The first section then declares, in a few short, emphatic words, that the defence óf usury shall not thereafter be interposed. It is the defence which is prohibited. The barrier wall, the place of strength, which the usury laws set up between the lender and the borrower, is thrown down and leveled with the ground, whenever the borrower is a corporation. Henceforth, the law offers no rewards of bad faith and broken promises to this class of contractors. * * * The object of the act is to take away from corporate bodies the defence of usury—a defence which most men have come to regard as immoral, mischievous and unjust. It should have a liberal interpretation.” Com-stock, J., at page 85, says: “lam inclined to think that the statute would be decisive against the right of the receiver .to allege usury in any stage of these causes, either as a defence to the original bill or as a foundation for his cross bill. My impression is that the act must be construed as a repeal of .the statute of usury as to all contracts of corporations stipulating to pay interest, thus leaving the contracts in full force according to their terms.” Shasxlast>, J., at page 174, says: “To interpose the defence means not only to plead it, and give evidence thereof, but also to use it at the trial as a defence. The inhibition extends to the entire series of acts which constitute the defence, and to each of them.” Paige, J., at page 228, says: “ The prohibition is, that no corporation shall, after the passage of the act, interpose the defence of usury in any action. This prohibition is not'directed merely against pleading or proving the defence, but it is against interposing it, that is, either by plea or by proof, or by claiming the benefit of it at the trial or hearing. The statute was intended to embrace in the prohibition the setting up as a defence usurious agreements.” At page 229 he says: “ As soon as the statute imposing the penalty is repealed, the very foundation of the action to recover it is taken away, and the action must fall with the law. The act of 1850 is, in substance, a repeal of the statute of usury, so far as relates to corporations. * * * The prohibition applies not only to the corporation, but also to all who claim under or through it.” Seldest, J., at page 255, says the “ intention obviously was to take away altogether from corporations the defence of usury. Proving usury upon the trial, setting it up at the hearing, is interposing it as a defence, no less than the pleading it.” When we bear in mind the circumstances under which this act was passed, we cannot be at a loss for the meaning of the words used by the legislature. A corporation had set up, as a defence to a contract, or, in other words, the grounds upon which it was illegal, the privileges secured to them by the statute of usury. This had not been done, in the technical sense of a defence to an action, or setting up as a defence the statute of usury. But they had interposed the defence of usury to a claim against them, and on that ground had sought affirmative relief. It was the intent of the legislature to prohibit such an interposition, or taking advantage or benefit from the defence of usury. It is quite immaterial, when we look at the objects of the legislature, whether this claim by a corporation .to avail itself of the statute be set up affirmatively or be interposed as a shield, when attacked by the other party to the usurious contract. It was obviously the meaning and intent of the legislature to take away from corporations altogether all benefit or advantage resulting from the statute of usury. As to them, it was as though it never had existence as a law. It was not thereafter to be used or taken advantage of by them, either as a weapon of attack or as a shield for defence.

It is conceded by the learned counsel for the appellant that, if the defendants had prosecuted the bank for the moneys loaned it, they could have recovered the amount so loaned. The prohibition precluded the bank from setting up in defence, either by pleading or proof on the trial, that the loans were usurious. The defendants would then clearly have recovered. But, says the learned counsel, the statute gives to the bank the right to recover back the usurious interest paid, and it would follow, therefore, that the bank, in the suit against it to recover its loans, could have set up as a counterclaim the usurious interest paid, and claimed its deduction from the amount due the defendants. Is not 'this interposing the defence of usury to the plaintiff’s demand? And it presents the anomaly of holding the same contract both legal and illegal, in uno flatu. It is legal to enable the lender to recover from the borrower, the corporation, the money loaned, and illegal to enable the defendant, the corporation, to recover from the plaintiff a penalty given by reason of such illegality. The same contract cannot thus be divided and held legal as to one party and illegal as to the other. It is either legal or illegal in ioto ; and as the statute makes it legal as to the lender, it cannot be made illegal to suit the purposes of the borrower. As was well said in the court below, “ the money borrowed, the legal interest, and the usurious premium, are all mingled together in one transaction, form part of one single and indivisible contract; and when the statute says the defence of usury shall not be interposed to it, I think it means each and every part of it: no one part more than another.”

The judgment of the Supreme Court should be affirmed, with costs.

J4M35S, J.

The rate of interest in this State is fixed by statute (1 R. S., 771, § 1,) at seven per cemt. By section 2, all persons and corporations are forbidden, either directly or indirectly, to takp or receive more than that rate; and section 3 declares that “ every person who, for any loan or forbearance of money, sh^l pay or deliver any greater sum or value than is allowed by law, and his personal representatives, may recover in an action against the person who shall have taken or received the same, and his personal representatives, the amount of the money so paid or value delivered, above such rate, if such action be brought within one year after such payment or delivery.”

This action is brought under that section of the statute, and the defendants insist that it cannot be maintained because corporations are not included within the language of that section, and are not authorized by it to bring an action like this.; that a right, of action to recover back usury actually paid is only given to. natural persons.

It is important to note that while the second section, which prohibits the taking of usury, names both “persons, an<i corporations’!' as within the prohibition, the third section only names “persons” as authorized to recover back any excess of interest paid. Using, the term, corporation in one section, and omitting it in the next, indicates that the omission was intentional on the part of the legislature, and that it did not intend to confer upon corporations the, right given by that section to individuals.

The legislature has, in two instances in the statute, and in only two, seen fit to define the word “ person,” and to declare that, when used in the sections or chapters therein designated, it should be construed to mean “corporations,” &c., viz., that which relates.to “crimes and, their punishments,” and that which relates to' “ promissory notes and bills-of exchange.” The implication from this fact, in the absence of any general statute on the subject, is, that where the term “ person” is used in other parts of the statute, its meaning is not to be extended beyond its common and ordinary signification.

That being so, the right to bring an action for the recovery of the excess paid upon, a usurious transaction is not given to corporations, and this would accord with the more recent statute which prohibits a corporation from interposing the defence of usury.

It was enacted in 1850 that no corporation should thereafter interpose the defence of usury in any action. The plaintiff insists that this statute was intended only to deprive corporations of the righ,t to avail themselves of a forfeiture of the. contract given by the statute of usury as a defence, and not to interfere with any rights of action given, by any other statute to recover back any excess of interest actually paid beyond the legal rate. Such, however, is not its fair construction. Its legitimate effect was to repeal the existing usury laws of this State as to corporations. (Curtis v. Leavitt, 15 N. Y., 9.)

It is certain, therefore, that this action could not be maintained by the corporation itself. The receiver stands in no better position. He is the representative of the corporation, having its title to the assets and subject to, its disabilities in relation to all its affairs. He can assert no claim which it could not; and the corporation having no right of action for this matter, he had none.

All the judges concurred in the result, without committing themselves to the reasoning of either of the preceding opinions, or in any respect further than necessary to decide the case.

Judgment affirmed.  