7 Blackf. 105 | Ind. | 1844
— Ensminger sued the state bank in assumpsit for money- had and received. Plea, general issue. There was also a plea of the statute of limitations, replication thereto, and issue. A jury having been called, and the plaintiff having made some progress in his testimony, it was agreed
On the trial, the plaintiff proved that the branch bank at La Fayette kept a book, called the “ discount book,” for its own use and convenience, which book contained a list of paper discounted by the branch bank, showing for whom discounted, the amount, the terms of the discount, when due, &c.; that the plaintiff had given the requisite notice to produce the book, and the refusal of the defendant to produce it; and that he had caused a clerk of the branch bank to copy so much of the book as contained the transactions of the plaintiff with the branch bank, and to deliver the copy to the plaintiff. The clerk who made the copy testified, that, having made it in a hurry, he could not be certain as to its accuracy. The plaintiff then offered the copy in evidence, and it was received against the defendant’s objection. The copy showed that the branch bank discounted for the plaintiff several notes, all payable in the town of La Fayette, and retained, under the name of exchange, over and above legal interest, a sum equal to the finding of the Court in favour of the plaintiff. It also showed that the branch bank had discounted for the plaintiff, during several years, other notes, after those charged with exchange were payable; and that the plaintiff’s bank account was balanced.
The object of the suit was to recover of the defendant the excess over legal interest, paid by the plaintiff on his bank loans.
It is urged by the defendant that an action for money had and received will not lie for money so paid. The general rule certainly is, that where money has been paid on an illegal contract, the parties being equally in fault, it cannot be recovered back. But this doctrine is not applicable to contracts or transactions in violation of statutes, the object of which is to protect one class of the community from the oppression and exactions of another class, having, from their situation and condition, the power in a great measure to
It is also contended that there was no evidence that the defendant had received usury, because it was not expressly proved that the notes on which exchange had been charged and retained were ever paid. This objection is not sufficient to set aside the finding of the Court. The extract from the discount book showed, that the bank had discounted new notes for the plaintiff long after those on which exchange had been charged were payable. As the charter of the bank prohibits discounts to persons who are in arrear in their loans, it was fairly inferible that the last named notes had been paid. Besides, there was evidence that the account of the plaintiff with the bank was balanced.
It is further objected that the Circuit Court erred in admitting in evidence the extract from the discount book. We do
The defendant contends for the benefit of the plea of the statute of limitations, but in our opinion without reason. The agreement under which the cause was withdrawn from the jury, and submitted to the Court, was a waiver of that plea.
— The judgment is affirmed, with 3 per cent. damages and costs.