
    The Miami Exporting Company v. Edmund Clark.
    The act of 1803, incorporating the Miami Exporting Company, docs not confer upon it banking powers; and, if the company possess any such powers, they can only he claimed under the act of February 23, 1816.
    The(Miami Exporting Company, as well as the other banks therein named, is prohibited by the act of 1816 from receiving a greater rate of interest than six per cent, per annum, in advance, on its loans and discounts.
    Where a bank so prohibited discounts a bill, charging exchange as a mere shift or device to obtain a greater rate of interest than it is authorized to receive by law, the contract is void, and the hank can neither recover upon the bill, nor upon the common counts, for money loaned.
    This is a motion for a now trial, from the county of Cuyahoga.
    
      The action was assumpsit against the defendant, as acceptor of two bills of exchange drawn by James S. Clark, payable at New York, one for $2,700, and the other for $3,000, and accepted by the defendant.
    *Tbo declaration was upon special counts, and the common money counts. Plea, non assumpsit, and motion of set-off.
    The bills offered in evidence were as follows:
    Cincinnati, January 10, 1837.
    Nine months after date, pay to the order of John W. Willey, Esq., $3,000, at the Union Bank, in the city of New York, for value received.
    (Signed,) Jas. S. Clark.
    To Ed. Clark.
    Accepted — Edmund Clark.
    Cleveland, June 28,1837.
    Three months from the 15th of July next, pay to the order of John W. Willey, Esq., $2,700, at the Union Bank, in the city of New York, for value received. Your obd’t serv’t,
    (Signed,) Jas. S. Clark.
    To Ed. Clark.
    Accepted, payable in city funds — Edmund Clark
    The defendant offered to prove that, at the discounting of the bills by the plaintiffs, a greater rate of interest was taken than six per cent, per annum, in advance; that the bills were given for the arrangement of a former draft of $10,000, discounted by the plaintiff for the defendant; and that there was an agreement, at the time when the original draft of $10,000 was discounted, that the defendant should allow the plaintiff a greater rate of interest than six per cent, per'annum.
    To the admission of this evidence the plaintiff objected, and’the court overruled the objection.
    The evidence offered and admitted to go to the jury was:
    1 An abstract from the books of the bank, showing its transactions with the defendant, as follows:
    
      
      
    
    
      *2. The deposition of John C. Wright, who testified that, several years ago, he was president of tho Miami Exporting Company, and had placed in his hands several bills and obligations, against gentlemen in Cleveland, for collection or settlement, which, at their earnest request, he arranged the best way he could, keeping in view the interest of tho bank. That he arranged for the 'bank some protested paper of the defendant’s, probably about the sum of $10,000, on which Jas. S. Clark and John W. Willey were also liable. That tho loan had been a long time before obtained, and under the most positive assurances of punctual payment. That he, at the request of said defendant, arranged said paper, by extending the time, and making the new paper fall due by installments. That the defendant paid him money enough to cover all the back interest and expenses, the discount and exchange on the new paper,'and his fees, and something in reduction of the original debt. Tho discount, and usual exchange at tho time, was included. The precise amount of the expenses paid, or the rate of exchange estimated, he did not recollect; but he had a general, recollection that tho exchange at that time ranged high ; that on paper payable out of Cincinnati, having more than sixty days to run, he thought exchange was increased one-half per cent, a month on the extended time.
    3. The defendant further offered evidence to provo that, for many years past, exchange had uniformly been in favor of New York, and against Ohio.
    4» The defendant then offered John Barr as a witness, who testified that, in the year 1836, as the agent of the defendant, he proposed to the President of tho Miami Exporting Company to make a loan of them. That the president declined to discount a note, but said that they would discount a bill of exchange, payable at New York. That the president stated that they could make all the loans they wished upon the latter kind of paper. It being suggested by witness that perhaps the defendant would not bo able or willing to make payment in New York, the president said that the whole might be done at the bank in Cincinnati. That the paper need not *be fully paid at maturity; -but that the loan should be paid by installments of from twenty-five to thirty per cent, at a time. That what the defendant would have to pay, would not bo more than at the rate of eight per cent. That the loan was made; and the money, in the bills of the plaintiffs, was forwarded and delivered to the defendant.
    The witness stated in his cross-examination, that, after his conversation with the president,-the defendant had an interview with him upon the subject of the loan, but what passed between them he did not know. That it was his impression, though of this he was not certain, that $100 more than the interest, at six per cent., was retained on the original loan ; but he does not know the precise amount of money received from Cincinnati.
    The defendant then rested.
    The plaintiffs thereupon, by their counsel, requested the court to charge the jury:
    1. That the act of incorporation of the plaintiffs, and the law, does not prohibit them discounting a note or draft payablo in Now York, and that a note or bill so discounted is not void.
    2. That the plaintiffs arc not restricted by their act of incorporation, or any modification thereof', to the taking of interest, at the rate of six per cent, per annum, and no more; and therefore the bills in suit are not void, if, in discounting them, interest Vas reserved at a greater rate than six per cent.
    3. That if the jury should be of opinion that more than six per cent, interest was reserved in the discounting of said bills, that partean only operate to render the socurity void , but as against the defendant, if it be proven that the plaintiffs loaned money to the delendant, the plaintiffs can recover, on the common count, the amount loaned, with interest at the rate of six per cent., deducting the payment made by the defendant.
    4. That, although on the previous bills more than six per cent, interest was reserved, yet if, at the time of the discount of the draft of $2,700, no more than at the rate of six per *ecnt. was reserved on it, the plaintiff is entitled to recover on that draft.
    But the court refused so to charge the jury; and, on the contrary, charged :
    1. That the act of incorporation of the plaintiffs, and the law, do not prohibit their discounting a note or draft payable- in Now York, and that a note or bill so discounted is not yoid ; but still, if a note was refused, and a draft accepted, payable in Now York, and this was a device to acquire more than six per cent, per annum in advance by the bank, the bank had no capacity to make such discount.
    
      2. That the plaintiffs are restricted, by their act of incorporation, and the modifications thereof, to the taking of interest at the rate of six per cent, per annum, in advance, and no more; and therefore the bills in suit are void, if, in discounting them, interest was reserved at a greater rate.
    3. That if the jury should be of opinion that more than six per cent, interest was reserved in the discounting of said bills, that fact not only operates to render the security void, but as against the defendant, although it be proved that the plaintiffs loaned money to the defendant. Tho plaintiffs can not recover, on the common counts, the money loaned.
    4. That if, on the previous bills, moro than six per cent, interest was reserved, although at the time of the discounting of the draft of $2,700, no more than at tho rate of six per cent, was reserved on it, the plaintiffs are not entitled to recover on that draft. _ ,
    The jury returned a verdict for the defendant.
    The plaintiffs move for a new trial, on the ground:
    T. That the evidence objected to was improperly admitted
    2. For error in the charge of the court.
    3. That the verdict is against the evidence.
    Peter Hitchcock, for plaintiff, in support of the motion:
    The court erred in directing that, by their act of incorporation, *and tho modifications thereof, tho plaintiffs were restricted to the rate of six per cent, per annum in. advance.
    Th'e Miami Exporting Company was incorporated on April 15, 1803, to continue until May 1, 1843. From a careful examination of the act of incorporation, it will be found that there is no restriction as to the rate of interest. I think I am right in saying, that interest is named but onco in the statute, and that is in section 9, which provides “ that the president and directors shall pay to each stockholder an annual six per centum interest on the sum or sums which shall have been paid into the funds of the company,” etc. The corporation are not then, by its charter, restricted to the taking of interest at the rate of six per cent, and no more.
    The act to which reference is made, to show that the act to incorporate the Miami Exporting Company has been modified, is the act of February 23,1816 (Chase’s Stat. 913), “ to incorporate certain banks therein named, and to extend the charters of existing incorporated banks.” There is no other act but this, so far as my knowledge extends, which claims to have any reference to this subject.
    The title to this act indicates the object which the legislature had in view. It is “an act to incorporate certain banks therein named, and to extend the charters of existing incorporated banks.”
    Section 31 reads thus: “The said corporation shall not take more than at the rate of six per’ cent, per annum in advance, upon its loans and discounts.”
    This section can apply only to the “ said corporations ” created by, or previously enumerated in the act.
    Section 40 provides that the charters of the several banks in this state, heretofore incorporated by law, shall be and are hereby extended, according to the provisions of the several laws incorporating them, until January 1, 1843, on condition of their accepting and complying with all the terms, requisitions, and provisions contained in this act, in the same manner as though such banks had been named and referred to in this act.
    *“ The requisitions and provisions ” referred to in this sec-■Jon unquestionably refer to the setting off o^ stock to the state. It was upon this condition that the charters of the then existing incorporated banks were extended. And if, by construction, the restriction as to interest can be construed to extend to those banks, as well as to those incorporated by this act, as seems to have been held by this court, in the caso of the Bank of Chillicotho v. Svvayne and others, 8 Ohio, 257, still, it docs not extend to the Miami Exporting Company, because its charter was not extended.
    Section 42 of the act now under consideration is in these words: “On condition that the directors of the several banks incorporated by this act, and of the several banks, tho charters of which are extended thereby, and also of the Miami Exporting Company, shall accept of, and comply with the conditions and provisions of this act. Any bank thus accepting and complying shall be and remain exempt and free from the payment of any tax to be imposed or collected by any other law of this state.”
    From this section it seems to me to be clear that, hitherto, the legislature did not suppose that there was anything in the act relative to the Miami Exporting Company, else why mention it here byname? They had neither extended its charter, nor given it corporate -existence; but were willing, if any privileges were conferred upon the other banks, by exempting them from futuro taxation, the same priviloge should be extended to this institution. They did not undertake to impose any now restriction, cither upon the previously incorporated banks, or upon tho Miami Exporting Company, without their assent. But they made certain propositions to them, in consequence of acceding to which, they would be released irom tho then existing tax of four per cent, and also from future taxation. It is in this section that the Miami Exporting Company is first named.
    In section 43 of tho act the penalty is proscribed, on tho bauks failing to comply with the provisions of the act. It is in these words: “If any of tho banks hereby incorporated, *or if any of the banks heretofore incorporated, the charter of which is hereby extended; or, if the president, directors, cashier, or any.other officer of any of said banks, shall fail to comply with all and singular the requisitions and duties required of them respectively by this act, according to tho true intent and meaning thereof, the bank so failing, or the bank of which the officer or officers shall so fail, shall forfeit all and every advantage, privilege, and benefit of this act, and from the time of such failure, shall be placed, adjudged, and considered in the same condition and situation as if this act had never boon passed.” Whether this is a sufficient penalty is not now a matter for inquiry. It is sufficient to say that it is tho penalty which the law-making power thought proper to prescribe, and which this court is bound to enforce.
    Now, suppose the banks incorporated by this act had failed to comply with the requisitions of the act, by setting olf to the state stock, etc., what would have been their situation ? The answer is clear and manifest. They would have remained unincorporated ; for, as to them, this act would have been as a dead letter. Suppose the banks which bad been previously incorporated, but whose charters were extended by this act, had failed to comply, what would have been their situation? They must have been “adjudged ” to remain as they were before, subject to tho same amount of tax, and their charters to expire in 1818 and 1819, according to the terms of' their respective acts of incorporation. They must, if any regard is bad to this law of 1816, have been “ adjudged and considered in tho same condition and situation as if this act had never been passed.” And suppose the Miami Exporting Company failed to comply, can any different rule be applied, as to that institution, from what would have been applied to the others ? If so, for what reason? If not, then if that institution did not comply with the law of 1816, it follows that this law has no application to it, for “it shall be placed, adjudged, and considered in the same condition and situation as if this act had never been passed.”
    *This brings us to the consideration of the question, whether tho Miami Exporting Company complied with the conditions of this act.
    There is nothing to show that the Miami Exporting Company ever accepted of the terms offered by the act of 1816, or complied with the requisitions of that act, but, on the contrary, tho most conclusive evidence that it did not. What is the consequence? The act itself gives the answer. It expressly declares, as wo have already seen, that from the time of failure to comply, the corporation so failing “ shall bo placed, adjudged, and considered in tho same condition and situation as if this act had never been passed.” It remains as it was under its original act of incorporation, and no one pretends that, by that act, there was any restriction as to tho rate of interest.
    From these considerations it seems that tho court were mistaken in the instructions given to the jury, that this company was restricted by its act of incorporation, and the modification thereof, to six per cent, interest.
    The court were mistaken in the instruction given to the jury, that if, in the previous bills, more than six per cent, interest had been reserved, although at tho time of discounting tho draft of $2,700, no more than at the rate of six per cent, was reserved on it, the plaintiffs could not recover on that draft.
    If I am right in the position, that tho Miami Exporting Company were not, by any law, restricted any more than individuals as to the rate of interest it might receive on its loans and discounts, it follows, of course, that the court were mistaken in this opinion. For almost forty years it has been uniformly held that no contract was void on account of the reservation of excessive interest, except as to such excessive interest. But it may bo thought that, where corporations are concerned, a different rule should prevail. The law, however, makes no distinction, and there is no reason why it should. Corporations, although not natural persons, are persons in law, equally entitled to the privileges secured to them as are individuals. As an authority to sustain the correctness of the ^instructions given by the court, the case of the Chillicothe Bank v. Swayne and others, 8 Ohio, 257, will probably be relied upon. That case I consider as an authority in favor of tho plaintiffs in this case. The court, it is true, held the contract in that case void, but why? Not because the interest reserved was greater than that allowed by the general law of the land. On t'ho contrary, they held expressly that, upon this ground, it was not void. 8 Ohio, 285. The only ground upon which the court held the contract to be void was, that the corporation had not power to make it. It was nowhere to be found in the charter. Express. power was given it to loan money at six per cent, interest. Beyond this it had no power; and, as in the case under consideration, it had made an attempt to go beyond this, it had exceeded its powers, and tho contract thus attempted to be made was as no contract. It had, to bo sure, the forms of a contract, but it had not the necessary pai’tios; and it was void, not because against law, but solely because there wdro not the necessary parties.
    The draft for $2,700 is not like the one in the case cited. The rate of interest upon which it was discounted does not exceed six per cent. It had three months to run, and this discount is but $41.85, precisely, as I believe, six per cent.
    Although the securities may have been void on account of the reservation of excessive interest, still the money actually loaned might be recovered under tho money counts.
    This principle has justice in its favor, if it is not based upon tho well-known principles of law. Where there are usury laws making contracts void, no such principle could be sustained, for the policy of such laws seems to bo to punish the lender of money. As in this state wo have none of these usury laws, there is no reason why the court may not in this case adopt a rule which shall do strict justice. Tho defendant has received the money of the plaintiffs. He ought to repay it. Upon proof of his having received it, the court would in ordinary cases say that he was bound in law to refund it, and would so instruct the jury. But it so happens that the plaintiffs have taken security for the payment of the money, which is *void because they had not power to tako such security. There is no sound reason why they should not be permitted to resort to the original loan, and recover upon the common count.
    With this evidence before them, the jury should have found for the plaintiff on the money counts, and not having so found, justice requires that theverdict shouldbe set aside, anda new trial granted.
    Payne & Wilson, for defendants, contra:
    As to the first cause assigned, was it possible for the jury to have arrived at a different conclusion ? It is impossible to conceive of a more absurd and shallow pretext for covering a usurious transaction.
    But the plaintiffs insist, that though this loan were usurious, yet they were authorized to make it, and that, therefore, the court erred in its charge to the jury.
    The proceeds of the discount were paid to the defendant in the notes or bills of tho Miami Exporting Company. And as well such notes, as the paper of the defendant received therefor, were, under the restraining law of 1815, utterly void, unless the plaintiffs were authorized to exorcise the franchise of banking.
    After the repeated decisions of the judicial tribunals of Now York, and the opinion of this court in the case of the Bank of Chillicothe v. Swayne and others, 8 Ohio, 257, it may be assumed as the settled rule of law, that the right to bank must be expressly conferred by tho legislative power. And no usage, however respectable or ancient, though acquiesced in by the state, and regarded by its agents in the assessment and collection of taxes, will legalize an assumption of that right. Its exercise is a matter of public concern ; and public policy, and public security, no less than strict justice, demand its denial, except where it is distinctly and unequivocally authorized by legislative enactment. 8 Ohio, 285; The People v. Utica Insurance *Co., 15 Johns. 358; 2 Cow. 678; New York Fire Insurance Co. v. Ely, 19 Johns. 1.
    If the plaintiffs possess such power, it is not by virtue of their original act of incorporation. And unless some subsequent legislative authority can be found, it is clear that the bank notes issued by the plaintiffs, and the paper, or written contracts received therefor, are within the restraining act of 1815, and utterly void. Such authority can not be found, unless it is contained in the “bank law” of 1816. 2Chase, 913. Section 40 extends the charters of all the other banks of the stale to January 1, 1843, on tho condition of “their accepting of, and complying with, all the terms, requisitions, and conditions contained in this act, in t.he same manner as though such banks had been named and referred to in said act.” Section 41 exempts all banks, so complying, etc., from taxation under the law of 1815. Section 42 provides that all of said banks, and also the Miami Exporting Company,' shall be exempt from all further taxation, on their compliance with all tho requirements of this act. And the remaining sections, respecting forfeitures, etc., apply to all the banks, etc.
    The plaintiffs had assumed banking powers, and were then in tho exorcise of thorn. By section 40 it was intended to legalizo that exercise of power, and extend it to 1843; granting to tho plaintiffs the privilege of issuing bills, discounting notes, and receiving deposits, and placing them, on the score of rights, immunities, and exemptions, on a footing with the most favored banking institutions of the state; and in return, exacting from thorn a compliance with those terms, and restrictions which wore deemed salutary for the public, and from which no bank Was exempt. The clause in section 42 may have been inserted for greater certainty, and to exclude any doubt as to its being included in the former section.
    The act wisely prohibited, the taking of more than six per cent, interest in advance. The plaintiffs sought to evade this restriction, and contracted for eleven per cent. This they were unauthorized to do; and the contract is on that account illegal, and void.
   *Birchard, J.

If the objection, that improper evidence was permitted to go to the jury, refers to tho abstract from the plaintiff’s books, the answer is, that it was not objected to at the trial as a mere copy, and tho objection not being then made, it is now too late. If made in timo, it is probable the defendant would have introduced tho original books, or have laid a proper foundation for the introduction of tho transcript, by showing that the plaintiffs had been duly served with notice to produce them. If tho objection relates to any other portion of the evidence, it will bo seen that, with the views we entertain of the merits of tho case, it was not well taken. The evidence all tended to establish the fact, that the original loan, as well as the paper upon which the suit was brought, was tainted by an illegal contract to pay interest at a rato greater than six per centum per annum, in advance.

Before proceeding to consider tho instructions of tho court to tho jury, it is proper to remark that on the trial, no questions of law were debated, the points only were made in order that they might be considered, and determined here, with a notice to counsel, that, for the purpose of settling the questions of fact, the law would bo given to the jury as it had been settled on a former trial in the same court. It may also be observed that it was then supposed that the act of February 8, 1815 (2 Chase, 868), and the act of February 23,1816 (2 Chase, 923), recognized the plaintiff as a bank, and modified, and restricted to some extent, the powers tf the plaintiff. This impression may have obtained from the fact, that, on one of the preceding trials, the counsel for the plaintiff had claimed for her a franchise of banking, under the act of 1816. However, that may bo, it was on the part of the defendant claimed, that if such was not the fact, the plaintiff was an unauthorized banking company. Butit is now claimed, in support of this motion, that she is not bound by any of the provisions of the act of February 23, 1816, in consequence of her non-acceptance of the provisions and conditions therein contained. Lot us see what would be the effect of adopting this assumption. The plaintiff sues as an incorporated banking institution. All her powers are *those expressly granted by the act of incorporation, and those necessary to carry into effect the powers expressly granted. The act incorporating the Miami Exporting Company is to be found in 3 Chase’s Stat. 2010, and it may be searched without finding any express or specific grant of banking privileges. There is no language, and no clause in it, which, honestly construed, will boar any such interpretation. It must follow that if tKe plaintiff is thrown back upon the act of 1803, a new trial should be refused. Because in that event, no suit could bo maintained. All the bills, notes, etc., issued by her, and all her securities, fall within the provisions of the laws against unauthorized banking.

It is said, however, that the legislature has recognized her right of banking. To be of any validity, this recognition must appear by some legislative enactment. The only statutes to which we have been relerrod, that seem to be of any importance in connection with our present inquiry, are the two above cited. .

The act of 1815 (1 Chase’s Stat. 868,) section 1, provides, “that every bank, and banking company, whether chartered or unchartered, within this state,” which, at the taking effect of this act, had commenced the business of banking, by discounting paper, etc., should pay a tax of four per cent, on dividends.

Section 5 provides, that thereafter “ it shall not be lawful for any individual, or company of individuals, to issue, and put in circulation, any note, or order, for the payment of money struck or printed on any engraved plate, and calculated to circulate as a bank bill, or note, unless such individual shall be by law specially authorized so to do, or unless such company of individuals shall be by law incorporated for that purpose; and all bonds, bills, notes, or written contracts given to, entered into with, or discounted by any such individual, or company of individuals, shall be, and the same are hereby declared null and void.”

Section 7 provided that until January 1,1818, the above section 5 should not be construed to extend to a company that had commenced “ bank business ” prior to January 1, 1815.

*The provisions of the foregoing sections imply that there were at that date banking companies doing business in the state, some being authorized to bank, and others not; and that of these, some, who were unauthorized to bank, were companies incorporated for other purposes. Hence the provision postponing the final operation of section 5, in the cases specified in section 7, to January 1,1818. This would give them time to close up their “bank business.” It is, moreover, an admitted fact that, in 1815, and prior thereto, the plaintiff was engaged in “bank business.” Her right to continue the business seems not to be recognized. It is merely tolerated for a limited period, and the act asserts the right, on the part of the state, to close all its banking operations on a given day, and inftho meantime, a right to subject it to taxation.

The act of February 23,1816, is somewhat complicated, and the whole act must be looked to, in order to give it a sound interpretation. The first fifteen sections incorporate so many banks by name, and specify their general powers. Some of theso had already, as unchartered companies, been engaged in business. From section 16 to section 40, the rights and duties of all are more particularly defined. Section 36'is in those words: “That the said corporations shall not take more than at the rate of six per cent, per annum in advance on their loans or discounts.” Section 40 extended the charters of all the incorporated banks until January 1, 1843, upon condition of their compliance, “in all respects, with the terms, requisitions, and provisions of this act.”

Section 42 reads thus: “ That on condition that the directors of the several banks incorporated by this act, and of the several banks, the charters of which are extended thereby, and also of the Miami Exporting Company, shall accept of, and comply with, the conditions and provisions of this act, any bank or banks thus aeceptng or complying, shall be exempt from tax, etc.” Section 43 provides, that on a failure to comply with all and singular the requisitions and duties required of them respectively, according to the true intent and *meaning.of‘ the act, they shall forfeit all its advantages, privileges, and benefits. And by section 44, the Supremo Court has full power and jurisdiction, upon a writ of quo warranto, to hear and determine all questions touching such violation or forfeiture.

The Miami Exporting Company is nowhere else named in the act. But named as she is in section 42, we can not doubt the intention of the legislature to bind her by the provisions of section 31, which prohibited all the banks then chartered from taking more interest than at the rate of six per centum per annum in advance. That was one of the provisions of the act, and an important one. How can it be said that it was not to be complied with — not to be accepted as a part of the law of her creation, or that in fact it has not been so accepted, when such assertion, if true, makes her an unauthorized bank and liable to the penalties of the statutes against such institutions ? The facts of the case show that the plaintiff did accept the provisions of the act; did issue bank paper; did do business as a banking institution after January 1, 1818, notwithstanding section 5 of the act of 1815. And admitting that she did not comply with many of the conditions of the act of 1816, and has been remiss in observing, “all and singular, the requisitions and duties required by the law, according to its ‘true intent and meaning,’ ” it does not appear that the privileges which that act extended to her had been declared forfeited by a judgment of this court. How then stand the instructions? The first instruction was given substantially as requested, and, if erroneous, the error was in favor of, not to .the prejudice of plaintiff. ■ The second was rightly refused, and the remarks upon the first proposition, upon which instruction was asked, together with the instruction given upon the first point, were strictly in accordance with the law as settled in the Bank of Ohillicothe v. Swayno et al., 8 Ohio, 261. The refusal to instruct the jury that the plaintiff might recover upon the draft for. $2,700, as requested in the fourth proposition of counsel, was not erroneous. The correct instruction was given. It was, in ^substance, that if the paper was discounted as a mere device to obtain more than six por contum interest, in advance, the contract was void, other, wise not. The jury were thus left to find, upon the evidence, whether this whole series of paper was not part and parcel of one transaction, and whether, at the inception of that transaction, the corrupt and unlawful-agreement was made that plaintiff, by such means, should obtain a prohibited rate of interest. They found such to be the fact, and upon sufficient evidence. The circumstance that the draft of $2,700, was a renewal of the former one, and discounted at six per centum, made no difference. For the proof was clear that it embraced a part of the original and prohibited excess, and that, too, in pursuance of the original unlawful agreement. To allow a device of this nature to defeat a salutary provision of law, and to sanctify usury by banks, would be equivalent, in many eases, to relieving them from all restraint. It would make an important distinction where a substantial difference does not exist.

Lastly, did the court err in instructing the jury that the plaintiff could not recover for the money loaned, upon the common counts?

This is a new question, and one that involves important considerations. It has been said, with much propriety, that it is wrong for the defendant to refuse a compensation for the money actually received. But, with equal propriety, it may bo said to be wrong in the plaintiff to do what the law forbids. Both plaintiffs and defendant were violators of the law — the one in loaning, and the other in receiving, on an illegal contract. Can the transaction bo dissected so as to enable us to separate the good from the evil, to reject the bad, and enforce the remainder? The money was all received at once; was a single transaction, and the whole contract is alike tainted with-the fraud and illegality. Again, the parties made their own contract. True, it was void for want of capacity or power in the plaintiff to make it; void because it was a fraud upon the law continuing the plaintiff’s existence as a bank. In this view of the case can it be seriously contended that the *law will make out of their illegal contract a legal one; that it will imply a contract differing substantially from the express contract made by them? Clearly this can not be. We hold, then, that as to the money actually received by the defendant in this case, both parties are in pari delicto, and the general rule in such case applies that no action can be maintained.

As to the point, that if the original loan was not tainted with usury, the plaintiff might recover upon the common counts, although the subsequent paper was so tainted, we believe no difference of opinion exists. According to our recollection, the jury were so instructed, and they have found that the loan was originally fraudulent. Now does the testimony sustain their finding? * As shown by the plaintiff’s books, the net proceeds of the discount were $9.800 — $200 being reserved, which was the true rate of interest taken in advance on a loan of $10,000. The witness,- Barr, sajrs, that he negotiated the loan: that the agreement was to discount drafts on New York instead of notes, in order that more than six per cent, interest should be procured, and there was no conflicting evidence upon the point. Ho also stated his belief that $100 mor« than was shown by the abstract was retained of the original loan. Certainly the verdict could not have been different, without being against evidence. Motion overruled.

Lane, C. J.,

dissenting. I confine my opinion to a single point. The Miami Exporting Company was incorporated in 1803; it immediately assumed the exercise of banking' powers, and continued to claim them, and to exercise some of them uninterruptedly, the period of thirty-nine years. For a part of this period, its notes constituted the largest portion of what was called money in the west. The state, more thaq once, borrowed from it, deposited with it, legislated upon it, and taxed it as a bank. The judi. ciary have at all times until now enforood its rights as a bank, and have placed its affairs in liquidation, under a law applicable to banks only. After this *lapso of time, contemporaneous • construction, and repeated recognition — after this course of life, and death, and burial — I find abundant'reason to hold it to have possessed banking franchises.

Assuming, then, that the plaintiff possessed the powers of a bank, and that this loan was made as such to the defendants, at a rate of interest greater than six per cent., I think the court erred in not instructing the jury that the plaintiffs were entitled to recover from the defendants, if they were beneficially interested in the loan, the amount advanced, and six per cent, interest.

In England, and in some of the Atlantic states, contracts upon usury are called base, corrupt, immoral; are pronounced void by statute, and no recovery ol the money loaned is admissible, because they are regarded as intrinsically wrong, and against policy. If such epithets are used in Ohio, they lose their ordinary meaning. Men may distrust the prudence of those who give or take more than six per cent., but they impute no want of integrity, or anything wicked or immoral; for the ordinary profits of other investment» of capital are (or are supposed to be) at a higher rate, and the profits of money loaned will depend upon them. If there were anything intrinsically wrong in taking more than six per cent., tho legislature would not have authorized certain incorporated companies to receive it, nor would they have authorized its payment on part of our own state loans. So our courts, from the first, have not treated such bargains as illegal, corrupt, and void, but have recognized the contract as binding, and reformed the terms after its own rulos, and given judgment for the principal, and six per cent, interest.

Such, in my opinion, was the duty of the court in the present case. If the plaintiffs possessed tho power to make such a eon-tract, unrestricted by any limitations except the general law relating to interest, they wore entitled, like other plaintiffs collecting such loans, to a judgment for tho principal, and lawful interest. *But if the contract bo void from the mere want of power, and not in consequence of an illegal or immoral consideration, it constitutes tho common caso of money paid upon- a consideration which fails, and the plaintiffs should recover the amount advanced, and simple interest, from those who beneficially received tho money. The decision in the Bank of Chillicothe v. Paddleford, is in no degree inconsistent with this opinion, as that suit was against sureties who were liable on the security only. The court, in the present case, should have instructed the jury to inquire if the defendant was interested in the loan.  