First National Bank v. Gruber

87 Pa. 468, 1879 Pa. LEXIS 7

• Court: Supreme Court of Pennsylvania
• Decided: January 6, 1879
• Status: Published

Opinions

Mr. Justice Sharswood

delivered the opinion of the court,

As the judgment in this case has been just reversed on the writ of error, sued out by the plaintiff below, and a venire facías de novo awarded, it will be unnecessary to consider in detail the fifteen errors assigned on this record. It is quite sufficient to say that under the decision of this court in Lucas v. Government National Bank, 28 P. F. Smith 228, we find no error in the answers of the learned court below of which this plaintiff has any cause to complain. The objections to evidence which were overruled, were on the grounds of variance to counts in the declaration, upon which, in the end, the court did not enter judgment. There is technically an error in the judgment, according to the view of the learned court below. The counsel on both sides assumed that the last count in the declaration was three counts from its including in one demand debt for money had and received, money paid, laid out and expended, and money found due on an account stated. The entry of judgment on the last three counts was in fact an entry of judgment on the ninth, tenth and last count; the ninth and tenth being for the penalty. The judgment is wrong and must be reversed, although if the cause had not to go back for another trial, this error might be corrected in this court.

What the learned counsel for the plaintiff in error principally insisted upon in his oral argument, as ground for a reversal without a venire de novo, was a point which does not appear to have been made below and which does not arise on this record. It is contended that under the Act of Congress establishing the national banks, those institutions have a right to charge and receive whatever amount of interest any banks of issue chartered by the state have a right to receive, and that several banks of issue were incorporated and in existence during the period that the alleged usury was paid in this case, who might lawfully make any contract with their debtors on the subject of interest. In the Circuit Court of the United States for the Western District of Penhsylvania, the point was so ruled by Justices Strong and McKennan, reversing a judgment in the District Court: First National Bank of Mt. Pleasant v. Duncan, 25 Pitts. Leg. Jour. 169. The ruling in that case was on the rejection by the District Court of an offer to show that there were state banks of issue authorized by special charters to charge and receive more than six per cent. We give no opinion upon this question. No offer was made in the court below to give such evidence. It is contended now that the court will take judicial notice of the fact. No doubt in New York and other states the court will take judicial notice of institutions organized under a general banking law. Although the general banking law of April 16th 1850, Pamph. L. 477, is undoubtedly a public act, and where the charter of any particular bank is produced and proved, the court will take judicial notice of its provisions ; yet without such proof it cannot take notice of the charter. A bank is a private corporation, its charter a private act, to be pleaded and proved as all other private acts. It has been held by the District Court of Philadelphia, in Handy v. The Philadelphia & Reading Railroad Co., 1 Phila. R. 31, that an act which declares that loans and contracts, previously made by any person with a particular corporation, shall not be deemed usurious by reason of the corporation agreeing to pay more than legal interest, is a private act.

Judgment reversed and venire facias de novo awarded.