
    National State Bank v. Brainard et al.
    
    
      (Supreme Court, General Term, First Department.
    
    October 16, 1891.)
    •1. Usury—Reserving Interest from Loan—Forfeiture.
    Where a national bank discounts a draft before maturity at an illegal rate of interest and reserves the discount, the borrower receiving the amount of the draft, less the discount reserved, all interest on such draft accruing prior to maturity will be forfeited by the bank, under Rev. St. U. S. § 5198, which prohibits a national bank from reserving a greater rate of interest on loans than is allowed by the law of the state where the bank is situated:
    2. Same—Interest Accruing After Maturity.
    In such case, the statute also operates to destroy the interest-bearing capacity of the draft after, as well as before, maturity, and an amount paid on the draft after maturity thereof must be credited on the principal of the draft, without regard to when the interest thereon accrued.
    Appeal from circuit court, New York county.
    Action by the National State Bank of Elizabeth, N. J., against Elijah Brainard and another, to recover the amount of certain drafts drawn by defendants, and discounted by plaintiff before maturity. Prom a judgment for .plaintiff, defendants appeal.
    Argued before Van Brunt, P. J., and Barrett and Bartlett, JJ.
    
      Richard & Brown, (J. Treadwell Richards, of counsel,) for appellants. S. St. J. McCutchen, for respondent.
   Per Curiam.

There is no dispute as to the fact that the plaintiff discounted the drafts in suit at the rate of 15 per cent, per annum, while the rate -allowed by the laws of the state of New Jersey, where the bank is located, was ■only 6 per cent. This act brought the bank within the operation of sections 5197 and 5198 of the Revised Statutes of the United States. Section 5197 provides that national banking associations may receive, reserve, and charge •on any loan or discount made, or upon any note, bill of exchange, or other •evidence of debt, interest at the rate allowed by the laws of the state, territory, or district where the bank is located. Section 5198 provides as follows: “The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest, which the note, bill, or other evidence of ■debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature •of an action of debt, twice the amount of the interest thus paid, from the association taking or receiving the same, provided s.uch action is commenced within two years from the time the usurious transaction occurred.” The •effect of the provisions of the national currency act which are embodied in these sections was considered by the supreme court of the United States in the case of Barnet v. Bank, 98 U. S. 555, and it was there declared that the statute defined two categories, and denounced the consequences thus: “(1) Where illegal interest has been knowingly stipulated for, but not paid, there only the sum lent without interest can be recovered. (2) Where such illegal interest has been paid, then twice the amount so paid can be recovered in a penal action of debt, or suit in the nature of such action, against the offending bank, by the persons paying the same, or their legal representatives.” In-that case it was accordingly held that, where usurious interest had been actually paid to a national bank upon a bill of exchange, such interest cou.ld not be applied by way of offset or payment on the instrument. Under this decision, the interest puor to maturity upon the drafts involved in the present suit was forfeited, if it was merely reserved, but not paid. As was said in the case of Bank v. Lewis, 81 N. Y. 20: “When a note is discounted, the-amount reserved for the discount is the interest reserved. In most cases, it is not then paid. The borrower receives the sum called for by the note, less the amount reserved for the discount. That is not paid until the note is paid. It is interest, and it is interest which the note carries with it. If it be a discount at a usurious rate, it is forfeited by reason of the federal statute In a suit on the note, it may not be recovered. It is to be held and adjudged forfeited.” These views would necessarily result in an affirmance of the judgment, if no other questions were presented by this appeal. The defendants, however, insist that it was error to permit any recovery on account of interest accruing after the maturity of the drafts in suit, and that a payment of $2,360 made to the bank by the executor of the acceptor was erroneously credited on account of such interest, whereas it should have gone to diminish the amount of the principal debt. In both respects we think the contention of the appellants is correct. The forfeiture prescribed by the federal statute is not merely a forfeiture of the interest which has been agreed to be paid, but a forfeiture “of the entire interest which the note, bill, or other evidence of debt carries with it.” In other words, the reservation or acceptance of usury destroys the further interest-bearing capacity of the paper. It was so held by the supreme judicial court of Massachusetts in the case of Bank v. Childs, 133 Mass. 248, in an opinion with the reasoning and result of which we entirely concur. As to the payment of $2,360, which has been mentioned, there was no competent evidence of any intention to apply it tc the interest on the part of the person from whom the money was received The drafts having lost their capacity to draw interest, no interest was due and the payment could properly be applied only on account of the principal See Adams v. Mahnken, 41 N. J. Eq. 332, 7 Atl. Rep. 435; Gill v. Rice, 13 Wis. 549; Greene v. Tyler, 39 Pa. St. 361. The judgment must therefore be reversed, and there must be a new trial, unless the respondent will stipulate to reduce the judgment by deducting the amount included therein for interest accruing since the maturity of the drafts, together with the $2,360 which should have been credited as a payment on the principal. If this is done, the judgment as modified will be affirmed, without costs. All concur;  