mentary matters, is established by the Constitution, and that the exclusive power of the State courts to construe legislative acts does not extend to the paramount law, so as to enable them to give efficacy to an act which is contrary to the Constitution.

ing in May. It purports to have been made on an original application by the administrators, in August, for an extension of the order of May, 1804. On this original application, the court allows the administrators to sell the house and lots in Cincinnati, and adds, "this entry to be considered as of May term, 1805." The entry, on its face, does not import to be the correction of the record, by placing on it an order which had in fact been made in the 523*] preceding May, *and which the clerk had omitted to enter, but to be an original proceeding in August, to which the court by its own authority gives a retrospective operation. If any explanatory testimony could have been received in the Circuit Court, none was offered. That court was required to infer from the words, "this entry to be considered as of May term, 1805," that it was in fact made at that term, and that the clerk had totally omitted it. The certainty which is necessary in judicial records, and the principle that they prove themselves, forbade the court to draw this inference. The law being then repealed, the order was certainly coram non judice.

It is also the opinion of one of the judges, that had the order even been made in May term, the repeal of the law before the sale, terminated the power to sell.

The counsel for the plaintiffs in error have also contended, that the interest of the administrators in the real estate, as trustees for the creditors, was a vested interest, which the repeal of the law could not devest; and that they might proceed to sell under the sanction of an order made even after the law was repealed.

This is a point on whick we cannot doubt. The lands of an intestate descend not to the administrators, but to the heir. They vest in him, liable, it is true, to the debts of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the Court of Common Pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it; but is conferred by the court in a state of things prescribed by the law. The order of the court is a prerequisite, indispensable to the very existence of the power; and if the law which authorized the court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law devests no vested estate, but is the exercise of a legislative power which every Legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the Legislature.

It is also contended that the jurisdiction of 524*] the Court of *Common Pleas, in testa

before any court, a legislative act shall not conflict with the Constitution, it is admitted that the court must exercise its judgment on both, and that the Constitution must control the Act. The court must determine whether a repugnancy does or does not exist; and in making this determination, must construe both instruments. That its construction of the one is authority, while its construction of the other is to be disregarded, is a proposition for which this court can perceive no reason.

But, had the question never been decided in Ohio, this court can perceive no sufficient ground for declaring that the Legislature of the State might not repeal the law by which the Court of Common Pleas was authorized to direct, in a summary way, the sale of the lands of an intestate. "Jurisdiction of all probate and testamentary matters," may be completely exercised, without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to us to be identical with that power, or to comprehend it. The Constitution did not mean, and could not mean, to deprive the Legislature of the power of exercising its wisdom on the subject so vitally interesting to the people; nor do its words convey such an intent. Were it even true, which we cannot admit, that the Constitution established the jurisdiction of the Court of Common Pleas in the case, still the Legislature might prescribe the rule by which that jurisdiction should be exercised.

We are satisfied that there was no error in the instruction given by the Circuit Court to the jury.

The plaintiffs in error contend that the court erred in overruling the motion to appoint commissioners to value the improvements in pursuance of the occupant law of Ohio; *and in rendering judgment without [*525 conforming to that law. The first section of the Act provides that "an occupying claimant," circumstanced as was the plaintiff in error, "shall not be evicted or turned out of possession, until he or she shall be fully paid the value of all lasting and valuable improvements made by such occupying claimant," "previous to receiving actual notice by the commencement of suit," etc. "unless such occupying claimant shall refuse to pay the person so setting up and proving an adverse and better title, the value of the land without the improvements made thereon," etc.

The 2d section proceeds to direct the court to appoint commissioners to make the valuation, which had been prescribed by the preceding section.

The counsel for the defendant in error insists that this law is repugnant to the 10th section of the first article of the Constitution of the United States; and to the ordinance of

This court does not think that these questions properly arise in the present actual state of this controversy. The 7th amendment to the Constitution of the United States declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." This is a suit at common law, and the value in controversy exceeds twenty dollars. The controversy is not confined to the question of title. The compensation for improvements is an important part of it, and if that is to be determined at common law, it must be submitted to a jury.

It has been said that the occupant law of Ohio must, in conformity with the 34th section of the Judicial Act, be regarded as a rule of decision in the courts of the United States. The laws of the States, and the occupant law, like others, would be so regarded independent of that special enactment; but the exception contained in that section must be regarded likewise. The law, so far as it consists with the Constitution of the United States and of the State of Ohio, is a rule of property, and of course a rule of decision in the 526*] *courts of the United States; but that rule must be applied consistently with their

constitution.

Admitting that the Legislature of Ohio can give an occupant claimant a right to the value of his improvements, and can authorize him to retain possession of the land he has improved, until he shall have received that value; and assuming that they may also annex conditions to the change of possession, which, so far as they are constitutional, must be respected in all courts; still that Legislature cannot change radically the mode of proceeding prescribed for the courts of the United States; or direct those courts, in a trial at common law, to appoint commissioners for the decision of questions which a court of common law must submit to a jury.

But this inability of the courts of the United States to proceed in the mode prescribed by the statute, does not deprive the occupant of the benefit it intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law; and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the Constitution of the United States or of the State or to the ordinance of 1787. The question whether any of its provisions be of this description, will properly arise in the suit brought to carry them into effect.

We think there is no error in the judgment, and it is affirmed with costs.

V.

WILLIAM OWENS, Herbert G. Waggoner, George Wagley, and Alexander Miller. Usury-fraud upon a statute-charter of Bank of United States.

The branch Bank of the United States, at Lexington, Kentucky, discounted a promissory note, reserving interest thereon, at the rate of six per centum per annum; it being agreed that the owner of the note should receive the proceeds of the discount in notes of the Bank of Kentucky, at their nominal value, although the same were at the time of no greater current value than fifty-four per cent. of the said nominal value. Held, that the contract was usurious, and void; and that the bank could not recover of any of the parties to the discounted note.

A fraud upon a statute is a violation of the statute. [536]

A profit made, or loss imposed on the necessities of the borrower, whatever form, shape, or disguise it may assume, where the treaty is for a loan, and the capital is to be returned at all events, has always been adjudged to be so much profit taken upon a loan, and to be a violation of those laws which limit the lender to a specific rate of interest. According to this principle, the lender in this case has taken forty-six per cent for three years, or at the rate of about fifteen per cent. per annum above his prescribed interest. This is contrary to the provisions of the charter of the Bank of the United States, and against law. [537] taking the same; since it cannot be permitted by law to stipulate for the receipt or reservation of that which it is not permitted to receive. In those instances in which courts are called upon to inflict penalties upon the lender, whether in a civil or criminal form of action, it is necessarily ly necessary to consummate the offense. But where otherwise; for there the actual receipt is generalthe restrictive policy of a law alone is in contemplation, we hold it to be an universal rule, that

Reserving interest as discount, is the same as

it is unlawful to contract to do that which it is unlawful to do. [538]

The charter of the Bank of the United States forbids the taking of a greater rate of interest than six per centum, but it does not declare a contract on which a greater interest has been taken or reserved, to be void. Such a contract is void upon general principles. Courts of justice are instituted to carry into effect the laws of a country, and they cannot become auxiliary to right where there can be no legal remedy; and there can be no legal remedy for that which is itself illegal. [538]

the violation of those laws. There can be no civil

TH

HIS case came up on a certificate of the judges of the Circuit Court for the District of Kentucky, they being opposed in opinion.

The action was upon a promissory note signed by the defendants, bearing date the 7th of February, 1822, by which they promised to pay to the president, directors and company *of the Bank of the United States or [*528

order, on the 7th of February, 1825, five thou sand dollars, with interest at the rate of six per centum per annum from the date.

The following indorsement is on the note: "Mem. Interest is to be charged on this note from the 21st day of May, 1822, only, and not from the 7th of February, 1822, within

NOTE. Usury-receiving interest as discount. See notes to Levy v. Gadsby, 2 L. ed. U. S. 404; Slacum v. Pomery, 3 L. ed. U. S. 205; Fleckner v. Bank of U. S. 5 L. ed. U. S. 631; Gaither v. Farm. & Mchs. Bank, ante, 43.

Lawfulness of taking interest in advance-see note. 29 L.R.A. 761.

Effect of national bank reserving illegal interest e note, 56 L.R.A. 673.

mentioned, the former being the day on which the amount was actually received by the makers of this note. (Signed) H. Clay." The declaration being in the usual form, the defendants, Waggoner, Wagley, and Miller, pleaded as follows:

"That they ought not be charged with the said debt by virtue of the said supposed note or writing, because they say that they executed the said note at the instance and for the accommodation of the said Owens, and with the view of making him to obtain a loan of the money from the Bank of the United States, upon the discounting of said note; and defendants alleged that afterwards, to wit, at, etc., the said Owens presented the said note for discount to the president and directors of the office of discount and deposit of the Bank of the United States at Lexington, Kentucky, and that the president and directors of the said office, then and there failed to discount the said note or make any loan thereon; and that after the rejection of the said note as aforesaid at Lexington in Kentucky, to wit, on the 31st day of May, 1822, it was unlawfully, usuriously, and corruptly agreed by and between the said plaintiffs, by their agents, managers and servants employed in the management and business of said office, and the said Owens, that they, the said plaintiffs, would receive and discount said note, and that the said Owens should receive from them therefor notes of the Bank of Kentucky or its branches at the nominal value of said notes; and for the forbearance and loan aforesaid, that said Owens would pay said note in current money of the United States when it fell due, with interest at the rate of six per cent per annum from the 7th day of February, 1822, and they aver, that in pursuance of said corrupt and unlawful agreement, the said note was delivered to the said plaintiffs at their said Lexington office upon the terms aforesaid, they advancing 529*] *and loaning therefor, as the whole and sole consideration of said note (after deducting a large sum from the amount of said note for discount) to wit, the sum of $in notes of said Bank of Kentucky, counted and rated at their nominal value. And said defendants aver, that at the time said note

1. The demurrer entered in this case, prevented | that investigation of the facts attending the transaction which was the subject of the suit, and by which the plaintiffs would have been enabled to present the circumstances under which the loan was made to the drawer of the note, so as to fully vindicate the institution from any charge of intentional violation of the provisions of the charter of the Bank of the United States, or the general rules of law. The following authentic and explanatory statement has been furnished to the reporter:

The note in this case is joint and several, and was not offered, as the plea suggests for a loan in the ordinary course of discount, in United States bank notes, or specie (it being generally known that the Lexington office was at that time restrained from making such loans), but specially for notes of the Bank of Kentucky. These notes had been received by the Bank of United States, at their office at Lexington, at their nominal specie value, a part of them being for government deposits; they had always preserved that value to the bank, by the balance being liquidated, and interest being paid by the Bank of Kentucky, periodically, and by the actual payment in specie, within a few (six) months after the loan to Owens, of the balance due. The bank therefore would have received in specie from the Bank of

was discounted as aforesaid, the notes of said Bank of Kentucky and its branches were generally depreciated, so much so that one hundred dollars thereof nominally were of the value of fifty-four dollars only, or less, and current only at that depreciation for greater or smaller sums, to wit, at, etc. And the said defendants aver that said transaction and dealing was contrary to law and the fundamental articles of said corporation, and the said note founded upon a corrupt and usurious consideration, the said plaintiffs reserving a greater interest than at the rate of six per cent per annum upon the value of the notes loaned by them as aforesaid, and this they are ready to verify. Wherefore, etc."

To this plea, the plaintiffs by their attorney demurred.1

*Upon the argument of the demurrer, [*530 the following questions arose, namely:

1. Whether the facts set forth, and the averments in said plea, make out a case in which the corporation has taken more than at the rate of six per cent per annum, upon a loan or discount, contrary to, and in violation of the 9th rule of the fundamental articles of the constitution of the corporation.

2. If the plea does make out such a case, whether the notes sued on, or the contract therein expressed to pay to the plaintiffs five thousand dollars, is void in law, so that no recovery can be had thereon in this suit.

3. If not wholly void, whether the plea is sufficient to bar the plaintiffs' recovery of any, and if of any, of what part of the said sum of five thousand dollars.

The judges being opposed in opinion upon the questions, they were, upon the request of the plaintiffs by their counsel, certified to the Supreme Court of the United States.

Mr. Sergeant, for the plaintiffs.

1. Upon the first question, after referring to the 9th rule,' he proceeded to say, that the case presented by the plea was not within the words of the rule. The prohibition is against taking more than six per cent. The utmost that can be made out of the allegations of the plea, supposing the construction attempted to be put upon the transaction to be correct, is that there was an agreement to take more Kentucky the amount loaned to Owens with its interest, in addition to the sum actually paid, had the loan not been made to him. The public exhibits of the Bank of Kentucky, at the time of the loan, and before and since, have shown its entire ultimate ability to pay its notes and deposits in specie; and individuals have, in a great number of instances, received from that bank by compromise on time, or by assignments of its discounted notes, or by recovery on suit, the nominal amount of their notes and deposits in specie. The great issue of Commonwealth Bank notes at the period referred to, and their free reception by the Bank of Kentucky in payment of its debts had, however, the effect of giving to the notes of the Bank of Kentucky nearly the same nominal depreciated character as those of the Bank of the Commonwealth.

2. "The said corporation shall not, directly or indirectly, deal, or trade in anything except bills of exchange, gold or silver bullion, or in the sale of goods really and truly pledged for money lent and not redeemed in due time, or goods which shall be the proceeds of its lands. It shall not be at liberty to purchase any public debt whatsoever, nor shall it take more than at the rate of six per centum per annum, for or upon its loans or discounts."

than at the rate prescribed. Nothing was taken but the note. There is no prohibition against an agreement to take more than six per cent. The offense is in taking more and nothing else. Penal provisions in a statute are to be construed strictly. This is highly 531*] penal, for it is made a *violation of the charter, and exposes to the danger of forfeiture. Where a penalty is given for taking usurious interest it is well settled that the penalty cannot be recovered without proving an actual taking of the usurious interest. Fisher v. Beasley, Doug. 236; Maddock v. Hammett, 7 T. R. 180. Here no discount was deducted, as is most usual in banking operations. The interest was not payable till the maturity of the note. It is clear, therefore, that there has not been a taking of more than six per cent. in violation of the 9th rule.

2. This question does not arise unless the first be made out affirmatively. If there has been no taking of more than six per cent in violation of the 9th rule (as there clearly has not) this question being by its statement made dependent upon the first is also decided in the negative.

There is nothing in the Act to make the contract void. The penalty is specified, and is of a different nature. An additional penalty cannot be imposed.

A mere prohibition to take more than six per cent does not of itself avoid a contract agreeing to take more. When the agreement is avoided, it is always in consequence of an express provision by law to that effect. Such is the law in England against usurious contracts, and in many of the States. Such is the law of Kentucky, and this question could only have arisen from the application of that law to the present case.

Nor do courts incline to destroy the contract. Even under those laws which avoid the contract for usurious agreement, if chancery get possession of the matter by the application of the debtor, it will compel him to pay the debt and legal interest as a condition of relief. But State legislation has no power over the Bank of the United States or its contracts. This has been decided, and is obvious from the nature of the case. The Bank of the United States is governed by the law of Congress, and is subject to no other jurisdiction. M'Culloch v. The State of Maryland, 4 Wheat. 316; Osborn v. The Bank of the United 532*] *States, 9 Wheat. 859; Wayman v. Southard, 10 Wheat. 1; Bank of the United States v. Halstead, 10 Wheat. 51.

The rule in the charter, therefore, is the governing rule. That even the taking of more than the legal interest does not under the charter avoid the contract has been already decided by this court. Fleckner v. Bank of the United States, 8 Wheat. 355. "The taking of interest by the bank beyond the sum authorized by the charter would doubtless be a violation of the charter for which a remedy might be applied by the government; but as the Act of Congress does not declare that it shall avoid the contract, it is not perceived how the original defendant could avail himself of this ground to defeat a recovery."

Still less can the agreement to take.

the bank had agreed to take more than by law it was authorized to take, the court would not lend its aid to recover the excess, the question arises whether this was an agreement to take more than six per cent on a loan or discount. It was not so in terms, for the interest payable was precisely six per cent, neither more nor less. It was not so in extent. The object of the transaction was not to cover illegal interest. The real design was to dispose of the notes of the Bank of Kentucky. It was in substance a sale upon a credit of three years, and not a loan.

If the transaction be unimpeachable on this ground can it be questioned on any other? The plea seems to aim to extricate the defendants from knowledge of the negotiation. But there are two particulars to be observed in it. 1. It does not aver that the bank knew that the note was given to enable Owens to get a discount in the ordinary way. 2. It does not aver that the defendants were ignorant of the negotiation for the Kentucky bank notes. What is not denied in pleading must be considered as admitted. There is an admission, therefore, that the bank did not know that the note was given for any particular purposes (if such were the fact) and that the defendants did know of the negotiation for the bank notes. Upon this basis of knowledge and assent the case is to be considered.

*Was there not, then, an adequate [*533 consideration given? It was so agreed voluntarily, without coercion, compulsion or duress; the parties being able and willing to contract, and understanding the subject-matter of the contract. The bank had a perfect right to fix the terms upon which it would part with the notes, and the defendants an equal right to decide whether they would accede to them. Both were the exclusive masters of their own judgment in making the contract; but that once made, and not in itself unlawful, becomes the law between them. No one has a right to alter it. The consideration has passed; the contract is executed; and the parties cannot now be restored to the condition they were in at the time of contracting. Sales are made according to the views of the parties, understood by themselves and influenced by many circumstances. Here the sale was upon a long credit enhancing the risk to the seller and increasing the chances of the buyer. The notes might, and did appreciate during the interval.

It is impossible now to adjust the terms differently. There is no evidence to furnish a rule. What were these notes worth to the Bank of the United States? They were notes for the payment of money, which the Bank of Kentucky was bound to pay, and the payment of which to the full amount was compellable by process of law. Who can say that the full amount might not have been recovered? Again, what was the value to the buyer? He, too, could enforce the payment and use the notes for some purposes, as equivalent to money. It does not appear that he did not so use them. He may have recovered the full amount or passed them off in advantageous negotiation.

The case is not new. Bank paper being a kind of currency, has been variously depreciated at different periods and in different parts