The Yazoo City Whig and political register. (Yazoo City, Miss.) 1842-1844, 1843-07-14

Upon the subject Ot usury, IN force at the
lime Of the making Of the note sued on, like
he English statute of Ann, avoided all con
.lacIs NEGLECTED. with usury. That the ques-
ion as TO power. was not considered by the
eourt, may be inferred from the circumstance
hat in the case of Fhckner in 9Th Wheaton,
The same court had decided, that violation
sf the charter Of the bank, in this very thing
Of taking more interest than was allowed,
could only be reached by proceeding on
the part of the government; the defendant
had nothing 10 do with it; in the case of
Owens, this point is not alluded TO, but in
9th Peters, they say they deliberately adhere
TO il. They adhere to the principle, not that
the defendant might not set up usury as a
defence where there was a usury statute
against the contract, but that he should not
set up in collateral proceedings violation
of the charter--in. other words, want of
power to make the contract. That this is
the doctrine established by these cases, is
still more manifest, becasue in the case of
WAGNER in 9th Peters, they make the case
turn exclusively upon the question Of usury,
precisely as If the note had been given to
an individual. The case of Swavne IS against
the case of Owens; so far as il takes the
statutes of usury Of Ohio into consideration,
it is against it too; at all events it is against
the case in 9th Peters, on the point that a
want of power can be inquired into IN that
collateral way. The Ohio case takes the
principle which was, in Cd Peters applied to
charter containing prohibition to take
more than 6 per cent. interest, and in which
the statute law Of the land produced no
modification, and applies il to similar char
ter; but in a Slate where the general law
relieved the party from any loss beyond the
excess of interest. il was misapplicalion of
the principle, and misapprehensIon Of the
ground on which the other case rests. Re-
garded as question of usury, the courts
would consider Of it In an action between
the parties TO the coniract--as question of
power they refuse to take cognizance Of it,
in collateral way. We think, then, that
Swayne's case, standing as il does alone,
upon this point, cannot be followed. 1t is
entirely distinct from that large class of cases
in which a corporation makes contracts en-
lirely foreign to the powers Of its creation
as indicated in its charter-these are void
upon general principles.
The doctrines laid down in Flcknef's
case, Sth VIII, has been followed by some
of the most respectable CO urts in the Union,
Chester Glass Co. vs.. bury, Mass, l02,
Silver Lake Bank VS.. North; 4th Johns, Oh.
$40, Angel 81 Ames l46. The Bank vs..
Portiaux, 8 Ran. 49, A portion of the
opinion of the court in the last case, so well
illustrates the point, that | cannot forheaI
KE:a Il
convenient, if every contractor with ono8i
the banks could, for the purpose of avoiding
his contract, institute the enquiry whether
the bank had violated jts charter. This
case does not fall within the principle Of
Wilson vs.. Spencer, Rand. 76 In that
case, an association of individuals dealt in
a manner entirely prohibited by law, and a
contract founded on. those unlawful dealings
was decided 10 be void. In this case the
statutes do not prohibit the purchase of rea
property by the banks, but only limit the ex
tent of such purchases; and the question
whether they have or have not exceeded
the limit prescribed to them, is not fit TO be
tried in this suit and at the instance of thi:
party"
think then it may be safely concluded
that this question of power does not inter
fere with our conclusion, and that when
bank discounts note in its usual course O
business, if it should commit usury, il is SUB
icct to precisely the same law for so doing
with an individual.
Usury has now ceased TO be considered a
crime, How. 500, 600. 1t is unlawful tC
the extent il is made so by statute and nc
further. If in this State contract violates
the statutes, it may be inlOrced for the prin
cipaI sum, incurring the loss of interest,"
The good may be severed from the bad, the
legal from The illegal-and by the best de-
cisions, recovery may be had in all such case:
for the part which, il good, the whole not be-
ing void United States vs.. Brady, 10 Pc
tiers $50, Pigots Case. IL Co. 81, Newman
vs. Newman 4 M s. Slew, Co.
There is another feature OF this case
which should not be overlooked. TIT con
fract on the part of the bank is executed
ano the opposite party is secured in the in.
iovmen,' of the fruits'beyond disturbance,
How them can be object to- The want Of pow.
en- In EnQland the rule That, corporate
act 20 be binding must be under seal, is still
rgidIyeadheFed 70 except perhaps IN com
mercial transactions, and L cannot make
valid lease of lands, unless n2GsF ITS corpo-
rate seal. If it make an execctcEy lease
not under its corporate seal, it could not be
sued upon it, and therefore shall not see
unless it offers to. perform, because OF a
want of entire mutually. But If it has
made such lease, and the other party has
enjoyed the promises, the corporation may
sue and recover, Mayor and Cooperation Of
Stafford vs.. Till, 4 Bing. IS Chit Con. 81.
Another Circumstance NAV be worthy of
remark, though il has had very slight inllu-
encs On our determination. Il is that the
eharto Of the bank, in regard TO contracts
having 9 months 10 nm. cnnlaina. no ar.