
    
      The Bank of St. Albans vs. Peleg Stearns.
    That a Bank note is not void, as usurious, by reason of their taking interest for ■ 64 days at the rate of 360 days to a year,that being a general custom at Banks; but the excess must be deducted.
    ■„ .The facts in this case sufficiently appear from the following o~ pinion of the court, pronounced by
   Hutchinson, J.

This action was the same with that, of the Bank of Burlington vs. Jireh Durkee et al, in principle, (seepage 399) except that the evidence of usury offered by the defendant was admitted, and met by testimony on the part of the plaintiffs, and-.the case.went to the jury under the charge of the court.

, Thiscction, like that, was brought upon a note, of $2000, and the excess of interest complained of was 29 cents. The note was dated August 1st,1826, and was. payable in sixty-four days from th&date. The testimony, on which the defendant relied, to es-.tablishffie defence of,usury, tended--to show, that the plaintiffs re-tajé for.interest,,.^ the rime of the discount, $21 33, for the 64 days.; being; 2.9..cents more than six per cent.

The testimony.of .the plaintiffs, adduced to rebut this, tended to shó w, that the Bank .haw always used Rowleys interest tables which were published in the year ■1802, and have been used at many Banks, for instance, at the Bank of Burlington, two. Banks in Troy, one in New-York, and the one at Plattsburgh, when in operation — That these tables- exhibit a cast for a year, as of 365 days, and the parts of a year, as of 30 days to a month— and, that the interest taken in this case, was cast according to these tables — That no other tables have been in use, till those of Chapman, which had been some in use a year before the trial of this action, and which cast for the days of the year at the rate of 365 days in the whole year : also tending to show that the same mode of casting interest adopted in this case, was formerly used in the several branches of the Vermont State Bank.

The defendant’s counsel requested the court to instruct the jury .that, if they believed the foregoing testimony, they must consider said note usurious and void, and return a verdict for the defendant. But the court refused so to instruct the jury; and did instruct them, that, if they believed all of said testimony,they would consider said note valid, and return a verdict for the plaintiffs. To these instructions the defendant excepted, and the verdict being for the plaintiffs, the exceptions were allowed, and the cause removed to this court, for a hearing upon said exceptions.

The counsel have seen fit to submit the case without argument; and we need do but little more, than apply to it the principles laid down by the court in the case of the Bank of Burlington vs. J. Durkee et al. The same rebutting testimony on the part of the plaintiffs, spoken of there, as proper to explain the reasons arid intention of the taking the 29 cents extra, passed to the jury in this case ; and the jury- were correctly instructed, that,- if they believed all the testimony in the case, they should return a verdict for the plaintiffs. The proper and legal inference from all that testimony is, that the Bank, the plaintiffs, wished to do business correctly, and according to the established-and well approved-usage» of other Banks. These they became acquainted with* and prepared to follow them. They purchased- the interest, tables,- in common use at other Banks, and adopted them for the convenience of the Cashier and clerks ; and that with every reason, to. believe them as sure a guide here, as iñ the' Banks of other states, where usury would prove as fatal to thé nóte as here. " ’ '''

Mdis and Davis, for the plaintiffs.

Van Ness and Allen, for the defendant.

We can, with propriety, adjudge? that the case is within the first clause of the statute, which enacts, that no more than six per cent, should be received as interest, and cause the excess to be deducted ; but we cannot so administer the law, that those who proceed with reasonable caution, and the most labored exertion to find the true and the most tried path, and find and pursue it, shall yet be doomed with heavy penalties, even the whole amount of their money loaned. No corrupt agreement, no intention to vio~ late die statute, can be legally,inferred in such a case.

How numerous must have been the Rank suits, in all the states' in the union, where a similar defence might as well have been interposed as here ! Yet, who ever heard of such a defence,till the case reported iir 2 Cowen ?

A man would as soon be apt to doubt the correctness of his printed law book, as ofhis printed interest tables, till some incorrectness be shown to him. I have seen Rowhf’s tables much used, and have no recollection of ever knowing, or suspecting, them incorrect, till on the present circuit. 'Many, others may have been alike unsuspicious. What should excite suspicion ? We may be jealous of a new invention or an innovation in practice, and be led to examine its correctness. But, when we are told, and that with truth, that the tables presented have been in general, and well approved use, for 25 or 30 years, why go about to correct them ? Why refuse to trust them as a guide ? How often do courts decide that to be law which is only known to have been a general practice for many years ? They say, the legislature have known this practice ; they have not seen fit to alter it. Citizens affected by it have not seen fit to litigate its propriety in the courts of law. It is understood by the people to be law j and a change by a judicial decision,operating on past transactions, cannot but work injustice. Here we have no difficulty iii correcting the mistaken construction of the statutes of usury. The .rule we adopt prescribes a rule for future contracts, and does Pxaet justice in those that now exist.

■ Let the plaintiffs enter a remittitur for the twenty-vine cents, if the jury did not deduct it, and let the judgment of the County Court be affirmed.  