The party who demurs to evidence seeks thereby to withdraw the
consideration of the facts from the jury, and is therefore bound to
admit not only the truth of the evidence, but every fact which that
evidence may legally conduce to prove in favor of the other party.
And if upon any view of the facts, the jury might have given a
verdict against the party demurring, the court is also at liberty
to give judgment against him.
The taking of interest in advance upon the discount of a note in
the usual course of business by a banker is not usury. This has
been long settled, and is not now open for controversy.
The taking of interest for sixty-four days on a note is not
usury if the note given for sixty days, according to the custom and
usage in the banks at Washington, was not due and payable until the
sixty-fourth day. In the case of
Renner v.
Bank of Columbia, 9 Wheat. 581, it was expressly
held that under that custom the note was not due and payable before
the sixty-fourth day, for until that time the maker could not be in
default.
Where it was the practice of the party who had a sixty day note
discounted at the Bank of Washington, to renew the note by the
discount of another note on the sixty-third day, the maker not
being in fact bound to pay the note according to the custom
prevailing in the District of Columbia; such a transaction on the
part of the banker is not usurious, although on each note the
discount for sixty-four days was deducted. Each note is considered
as a distinct and substantive transaction. If no more than legal
interest is taken upon the time the new note has to run, the actual
application of the proceeds of the new note to the payment of the
former note before it comes due, does not of itself make the
transaction usurious. Something more must occur. There must be a
contract between the bank and the party at the time of such
discount, that the party shall not have the use and benefit of the
proceeds until the former note becomes due, or that the bank shall
have the use and benefit of them in the meantime.
This case was brought before the court to reverse the judgment
of the circuit court on a demurrer to the evidence offered by the
defendants in error, the plaintiffs below, to sustain a claim on
Mr. Thornton as endorser on a promissory note discounted at the
bank of Washington for the benefit of one Bailey, the maker of the
note.
The facts of the case are stated in the opinion of the Court,
delivered by MR. JUSTICE STORY.
Page 28 U. S. 40
MR. JUSTICE STORY, after stating the facts, delivered the
opinion of the Court.
This case comes before us on a demurrer to the evidence in the
court below, taken by the original defendant, now plaintiff in
error, and this in our judgment is very important to be considered
in the determination of the case. The party who demurs to evidence
seeks thereby to withdraw the consideration of the facts from the
jury, and is therefore bound to admit not only the truth of the
evidence as given, but every fact which that evidence may legally
conduce to prove in favor of the other party. And if upon any view
of the facts the jury might have given a verdict against the party
demurring, the court is also at liberty to give judgment against
him.
The defense set up against this action by the defendant is that
the transaction is usurious within the meaning of the statute of
Maryland against usury, which (it is admitted) is substantially
like the English statute on the same subject. To sustain the
defense, it has been urged that the receipts of the interest in
advance for sixty-four days upon the discount of the note is usury.
But we are all of opinion that the taking of interest in advance
upon the discount of notes in the usual course of business by a
bank is not usury. The doctrine has been long settled, and is not
now open for controversy. The taking of the interest for sixty-four
days is not usury if the note, according to the custom and usage in
the banks at Washington, was not due and payable until the
sixty-fourth day. That custom was
Page 28 U. S. 41
completely established not only by the evidence in the present
case, but by that in
Renner v. Bank of
Columbia, 9 Wheat. 581, which is referred to in
this record. In the latter case, it was expressly held by the Court
that under that custom, the note was not due and payable before the
sixty-fourth day, for until that time the maker could not be in
default.
Then again it is argued that here there have been successive
renewals of the note, or rather successive notes given by way of
renewal of the original note, and that these renewals have been on
the sixty-third day, and the money credited on that day, on account
of the existing note, and thus in effect sixty-four days interest
has been taken upon loans for sixty-three days only. If there had
been proved any contract between the bank and the party for whose
benefit the original discount was made, that the original note
should be so renewed from time to time, and the extra day's
interest thereupon be taken by the bank, so that the bank would
have been bound to make the renewal, and the party would have been
bound to renew and not to pay the note at maturity; there would
have been strong grounds on which to rest the argument. But the
difficulty is that no such contract is to be found in the evidence,
and the party demurring to the evidence asks the court to infer it
from facts which do not necessarily import it, and may well admit
of an explanation favorable to the other party. It is quite
consistent with every fact in the case that the original discount
may have been made without any such contract and that the
application for the renewals may have been made from time to time
by the party interested for his own accommodation, and without any
previous understanding or cooperation on the part of the bank. For
aught that appears, he was at liberty to have paid the original
note, or any one of those afterwards given at the time when it
became due. If of choice he had paid it on the sixty-third day
instead of the sixty-fourth, there is no pretense to say that it
would have been a case of usury. If, instead of payment, he offers
a new note for discount for the purpose of applying the proceeds to
the payment or withdrawal of the former note, under
Page 28 U. S. 42
the like circumstances, the case is not substantially varied.
Each note is considered as a distinct substantive transaction. If
no more than the legal interest is taken upon the time the new note
has to run, the actual application of the proceeds of the new note
to the payment of the former note, before it becomes due, does not
of itself make the transaction usurious. Something more must occur.
There must be a contract between the bank and the party at the time
of such discount, that the party shall not have the use or benefit
of the proceeds until the former note becomes due, or that the bank
shall have the use and benefit of them in the meantime. Such a
contract being illegal is not to be presumed; it must be
established in evidence. The argument requires the court to infer
such illegality from circumstances in their own nature equivocal,
and susceptible of different interpretations, and this in favor of
the party demurring to the evidence. Even if the jury might have
made such an inference from the evidence, we think it ought not to
be made by the court, for the rule of law requires the court in
such a case to make every inference and presumption in favor of the
other party which the jury might legally deduce from the evidence;
nor is this any hardship upon the party demurring to the evidence,
for it is his own choice to withdraw from the jury, to whom it
properly belongs, the consideration of the facts which he relies on
as presumptive of usury.
Upon the other point suggested in the cause, whether banks are
within the statute of usury, we entertain no doubt that they are.
But, for the reasons already stated, we are of opinion that the
judgment below ought to be
Affirmed.
