51 W. Va. 255 | W. Va. | 1902
This was an action of assumpsit brought by the Charleston National Bank against W. A. Bradford in the circuit court of Kanawha County with an indebitatus count on a note dated October 18, 1899, for two hundred and seventy-eight dollars negotiable and payable to said bank sixty days after date at said bank at Charleston, West Virginia, with eight per ceivktm in
Section 41, chapter 125, Code, provides that it shall not be necessary to prove the existence of a corporation alleged in the declaration to be such, unless the pleading which puts the matter in issue be verified, or an affidavit filed with it denying the existence of such corporation. This amendment to the plea should not have been permitted to be made. Section 5197 Bev. Stat. TJ. S., provides that, “Any association may take, 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 and no more, except that where by the laws of any state a different rate is limited for banks of issue organized under the state laws the rate so limited shall be allowed for associations organized or existing in any such state under this title.” Section 519S, Id. provides: “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 a legal representative may recover back in an action in the nature of an action of debt twice the amount oE the interest thus paid from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred,” and then provides that such action may be brought in the "United States courts, or slate, county, or municipal courts, where the association is located, having jurisdiction in similar cases. The questions arisn g in this case are controlled by the case of Bank v. Boylen, 26 W. Va. 554, in which case the syllabus is as follows: “1. Under the provisions of the act of Congress — U. S. Rev. Stat. ss. 5197, 5198 — usurious interest, actually paid to a national bank on discounting and renewing a series of notes, can not in an action by the bank on the last of them be applied in satisfaction of the principal of the debt. 2. The said act having prescribed as the penalty for taking usurious interest, that the person pa\ing the same may in
Corrected and Affirmed.