*484

iels to Carusi, the testator, of 10 per cent. interest was voluntary, and that there was no contract for its payment, or agreement for indulgence or extension of time for payment, on account thereof. It is plain that under this section the plaintiff in error was not entitled to the charges requested by him. Section 716 provides for the recovery, by the person who has paid a greater rate of interest than is allowed by law, upon any agreement or contract, of all interest paid on such contract or agreement, provided he brings suit to recover the same within one year after the unlawful interest shall have been paid. This section, it is also clear, brings no aid to the plaintiff in error. This is not a suit to recover back usurious interest paid, but to enforce the collection of the note upon which it is contended the usurious interest was received. The plaintiff in error did not pay the unlawful interest, but it was paid by Daniels, and it was paid by him more than a year before this suit was brought, and more than a year before the defense set up by the plaintiff in error. If Daniels himself, who paid the alleged usurious interest, had brought a suit to recover it back, his action would have failed, because not begun within the time prescribed by the statute. The plaintiff in error, therefore, who has paid no interest, legal or illegal, is in no better position, at least, than Daniels, and cannot set up the provisions of section 716 in his defense. Under neither section is the plaintiff in error entitled to any relief. His counsel, however, contend that if he is not entitled to relief under the statute, his common-law right to reclaim or set off usurious interest paid still remains to him. But this court has repeatedly decided against this contention of the plaintiff in error.

In Farmers', etc., Nat. Bank v. Dearing, 91 U. S. 29, the court declared that the penalty imposed on a national bank for taking a greater rate of interest than that allowed by the national banking act, was the loss of the entire interest, and that no loss of the entire debt was incurred by the bank as a penalty by reason of the provisions of the usury law of a state. So, in Barnet v. National Bank, 98 U. S. 555, it was held that in a suit by a national bank against the parties to a bill of exchange discounted by it, the assignees of an acceptor could not, having intervened as parties, set up by way of counter-claim or set-off that the bank knowingly took and was paid a greater rate of interest thereon than that allowed by law, but that, the national banking act having prescribed as a penalty for the taking of such unlawful interest that the person paying the same might, in an action of debt against the bank, recover back twice the amount so paid, he could have redress in no other form or mode of procedure. So, in Driesbach v. National Bank, 104 U. S. 52, it was held that usurious interest paid to a national bank on renewing a series of notes, of which those in suit were the last, could not be applied in satisfaction of the principal of the debt. See, also, Cook v. Lillo, 103 U. S. 792, and Walsh v. Mayer, 111 U. S. 31; S. C. 4 SUP. CT. REP. 260. In the case last cited it was held generally that a statute which prescribes a legal rate of interest, and forbids the taking of a higher rate, under penalty of a forfeiture of the entire interest, and declares that the party paying such higher rate of interest may recover it back by suit brought within 12 months, confers no authority to apply the usurious interest actually paid to the discharge of the principal debt, and that a suit for its recovery, brought within 12 months, was the exclusive remedy. There was, therefore, no error in the refusal of the court to charge as requested or in the charge given.

It is further assigned for error that the court neglected to give the jury any instruction upon the issue raised by the fifth plea, the plaintiff in error contending that there was evidence to support that plea, and that the court. though not requested, should have submitted to the jury the issue of fact raised by the plea. We look in vain through the record to find any evidence that would have justified the jury in returning a verdict for the defendant on the fifth plea. On the contrary, the evidence tended strongly to disprove it

The court might, therefore, without injustice to the defendant, have withdrawn from the jury the consideration of the fifth plea. Parks v. Ross, 11 How. 373; Hickman v. Jones, 9 Wall. 197; Pleasants v. Fant, 22 Wall. 116; Commissioners v. Clark, 94 U. S. 278. But even if there had been evidence to support the plea, as it does not appear that the court was requested to charge the jury upon the issue raised thereby, the failure of the court to do so cannot be assigned for error. Express Co. v. Kountz, 8 Wall. 342. We find no error in the record. The judgment of the supreme court of the District of Columbia must therefore be affirmed.

(112 U. S. 510)

UNITED STATES v. NORTH.

SAME. EMORY.

(December 8, 1884.)

1. ACT OF CONGRESS JULY 19, 1848-ARMY AND NAVY OFFICERS-EXtra Pay. The officers of the navy and of the regular army, who were employed in the prosecution of the war with Mexico, are entitled to the three months' extra pay provided for by the act of congress of July 19, 1848.

2. SAME-WHAT IS THE PAY TO WHICH THEY ARE ENTITLED.

Those of the regular army and navy who were engaged in the military service of the United States, in the war with Mexico, may be said to have served out the term of their engagement, or to have been honorably discharged, within the meaning of these terms as used in the act of 1848, when the war was over, or when they were ordered or mustered out of that service; and the pay for services they are entitled to receive is "extra pay" for three months, according to their rank in the branch of service to which they belonged.

Appeals from the Court of Claims.

A. McDonald McBlair, for

Sol. Gen. Phillips, for the United States.
North. W. J. Moberly and S. S. Henkle, for Emory.

WAITE, C. J. James H. North was an officer in the navy of the United States from May 29, 1829, to January 14, 1861, when he resigned. He served in the war with Mexico, as lieutenant, on board the frigate Potomac, from February 10, 1846, until July, 1847, when his vessel sailed for the United States. William H. Emory was an officer in the regular army of the United States most of the time from July 1, 1831, to July 1, 1876, when he was placed on the retired list. He was appointed first lieutenant of topographical engineers July 7, 1838, and promoted to captain April 24, 1851. On or about the first of October, 1847, while he was lieutenant of engineers, he was appointed by the president as lieutenant colonel in the District of Columbia and Maryland volunteers for service during the war with Mexico. He took the oath of office in Washington about the second of October and joined his regiment in Mexico, under the orders of the war department, and served with it "in the war with Mexico" until mustered out of service as lieutenant colonel, on the twenty-fourth of July, 1848. Upon his muster out as lieutenant colonel he resumed his former rank as lieutenant of engineers, and continued his service as such. These suits were brought to recover the "three months' extra pay" allowed to those "who were engaged in the military service of the United States in the war with Mexico" by the following statutes:

(1) Act of July 19, 1848, c. 104, § 5, (9 St. 248:) "Sec. 5. And be it further enacted, that the officers, non-commissioned officers, musicians, and privates engaged in the military service of the United States in the war with Mexico, and who served out the time of their engagement, or may have been honorably discharged,-and first to widows, second to the children, third to the parents, and fourth to the brothers and sisters of such who have been killed in battle, or who died in service, or who, having been honorably discharged, have since died, or may hereafter die, without receiving the three months' pay

512

herein provided for,-shall be entitled to receive three months' extra pay provided, that this provision of this fifth section shall only apply to those who have been in actual service during the war.'

(2) Act of February 19, 1879, c. 90, (20 St. 316:) "Be it enacted, etc., that the secretary of the treasury be, and he is hereby, directed, out of any moneys in the treasury not otherwise appropriated, to pay to the officers and soldiers engaged in the military service of the United States in the war with Mexico, and who served out their time of engagement, or were honorably discharged,' the three months' extra pay provided for by the act of July nineteenth, eighteen hundred and forty-eight, and the limitations contained in said act, in all cases, upon the presentation of satisfactory evidence that said extra compensation has not been previously received: provided, that the provisions of this act shall include also the officers, petty officers, seamen, and marines of the United States navy, the revenue marine service, and the officers and soldiers of the United States army employed in the prosecution of said war."

The court of claims gave judgment in favor of North for three months' seaservice pay as lieutenant in the navy, and in favor of Emory for three months' pay as lieutenant colonel of volunteers, without the allowances of an officer in addition to his pay. From these judgments the United States appealed.

The questions are: (1) Whether the officers of the navy and of the regular army who were employed in the prosecution of the war with Mexico are entitled to the three months' extra pay provided for by the act of 1848; and if so, then (2) what is the "pay" to which they are entitled?

We have no hesitation in answering the first of these questions in the affirmative. All the doubts there may have been upon that subject when the act of 1848 stood alone were, in our opinion, removed by the act of 1879. It is difficult to see why the proviso was added to that act, if it were not to make it plain that congress intended to include "the officers, petty officers, seamen, and marines of the United States navy, the revenue marine service, and the officers and soldiers of the United States army employed in the prosecution of said war" among those who were entitled to the "extra pay" provided for. The answer to the second question is, to our minds, attended with no greater difficulty. Those of the regular army or navy who were "engaged in the military service of the United States in the war with Mexico" may be said to "have served out the term of their engagement," or to have been "honorably discharged," within the meaning of those terms as used in the act of 1848, when the war was over, or when they were ordered or mustered out of that service. Being in the army and navy, their "engagement" was to serve wherever they were ordered for duty. Their engagement to serve in the war with Mexico ended when they were taken away from that service by proper authority. The pay they were to receive was evidently that which they were receiving at the end of their engagement, or when they were honorably discharged. The language is, "shall be entitled to receive three months' extra pay," evidently meaning the same pay they would have received if they had remained in the same service three months longer. It follows that as North was serving at sea when he was ordered away, he was entitled to three months' sea pay, and as Emory was mustered out of his service in the war as lieutenant colonel of volunteers, his pay must be in accordance with that rank.

As the effect of the statutes on which the several claimants rely was fully and elaborately considered in the opinion of the court of claims, and we affirm the judgments of that court, it is unnecessary to do more than state in this brief way the conclusions to which we have come. The judgment in each case is affirmed.

BLATCHFORD, J., took no part in the decision of this cause.

(112 U. S. 502)

ENGLAND v. GEBHARDT.
(December 8, 1884.)

1. APPEAL-Writ of Error-Act oF CONGRESS MARCH 3, 1875, CH. 137, 472.)

5, (18 ST. Where a writ of error is brought under the act of March 3, 1875, c. 137, § 5, (18 St. 472,) to reverse an order of the circuit court remanding a suit at law to the state court from which it had been removed, nothing can be considered on such a writ that is not presented in some appropriate form by the record.

2. SAME-RECORD-FINDING OF COURT-CITIZENSHIP.

Where the record shows an averment, in the petition for removal, that the parties to the suit were citizens of different states, and a finding of the court that they were not, in the absence of a bill of exceptions, or an agreed statement of facts, or a special finding, in the nature of a special verdict, or some other form of procedure known to the practice of courts of error, by which the questions presented and decided at the hearing can be re-examined, the finding of the court must be taken as true, and the order to remand affirmed.

In Error to the Circuit Court of the United States for the District of New Jersey.

A. Q. Keasbey, for plaintiff in error. John R. Emery, for defendant in error. WAITE, C. J. This is a writ of error brought under the act of March 3, 1875, c. 137, § 5, (18 St. 472,) to reverse an order of the circuit court remanding a suit at law to the state court from which it had been removed. The suit was begun by Jacob W. Gebhardt, the defendant in error, against Isaac W. England, the plaintiff in error, in the supreme court of New Jersey, and a summons was duly served on England. The pleadings were made up and issue joined in the state court. When that was done there was nothing in the record to show the citizenship of the parties, but on the sixth of September, 1883, which was in time, England filed a petition, accompanied by the necessary bond, for the removal of the suit to the circuit court of the United States for the district of New Jersey. The petition set forth that England was a citizen of New Jersey and Gebhardt a citizen of New York, both at the time of the commencement of the suit and at the time of the presentation of the petition. The removal was asked for solely on the ground of the citizenship of the parties. Upon the presentation of the petition the state court entered an order to the effect that it would proceed no further, and a copy of the record was filed in the circuit court on the twenty-fifth of September.

On the fourteenth of March, 1884, the following order was made in the cause:*"This cause, coming on to be heard on a motion to remand this cause to the New Jersey supreme court, in the presence of Joseph A. Beecher, attorney for the plaintiff, and of A. Q. Keasbey, attorney for the defendant, and the matter having been argued by the respective attorneys, and the court having taken time to consider the same, and the court being of opinion that there is not in said cause so attempted to be removed to this court a controversy between citizens of different states, according to the true intent and meaning of the act of congress in this behalf, it is now, * * * on motion of Joseph A. Beecher, ordered that the said motion be, and the same is hereby, granted, and this cause is remanded to the New Jersey supreme court to proceed therewith according to law; and it is further ordered that the said plaintiff do recover of the said defendant, Isaac W England, the costs of this motion, to be taxed." The motion on which this order was made is not set out in the record There are, however, in the transcript what purport to be certain affidavits, sworn to in the months of November and December, 1883, and filed February 25, 1884, which have indorsed thereon, "Affidavits, on motion to remand," and there is also what purports to be the opinion of the judge denying the motion, from which it appears that "the motion to remand this cause is founded upon the allegation that both the plaintiff and defendant were citizens of the state of New Jersey when the summons was issued and served,

*50 304

909.

and the petition for removal was filed. It is resisted by the defendant upon the ground that at both of these periods of time the plaintiff was residing in, and was a citizen of, New York." There is no bill of exceptions in the record, and no authentic finding or statement of the facts on which the order to remand was made, or of the evidence submitted by the parties. Neither does the order to remand itself refer in any manner to the affidavits as the foundation of the action which was taken.

*It was decided in Babbitt v. Clark, 103 U. S. 611, that "congress evidently intended that orders of this kind in suits at law should be brought here by writ of error, and that*where the suit was in equity an appeal should be taken." This was a suit at law, and it was therefore properly brought here by writ of error. But as a writ of error brings up for review only such errors as are apparent on the face of the record, it follows that nothing can be considered here on such a writ in this class of cases, any more than in others, that is not presented in some appropriate form by the record. This record shows an averment in the petition for removal that the parties to the suit were citizens of different states, and a finding of the court that they were not. This implies the finding of a fact upon evidence submitted upon a hearing by the court, but before the questions presented and decided at such a hearing can be re-examined on a writ of error, they must be brought into the record by a bill of exceptions, or an agreed statement of facts, or a special finding in the nature of a special verdict, or in some other way known to the practice of courts of error for the accomplishment of that purpose. Storm v. U. S. 94 U. S. 81; Suydam v. Williamson, 20 How. 428; Baltimore & P. R. Co. v. Trustees Sixth Presbyterian Church, 91 U. S. 130. That this rule is applicable to the class of cases to which that now under consideration belongs was expressly decided in Kearney v. Denn, 15 Wall. 56. The record in the case contains nothing of the kind. The affidavits, copies of which appear in the transcript, form no part of the record proper. The mere fact that a paper is found among the files in a cause does not of itself make it a part of the record. If not a part of the pleadings or process in the cause, it must be put into the record by some action of the court. Sargeant v. State Bank of Indiana, 12 How. 384; Fisher v. Cockerell, 5 Pet. 254. This may be done by a bull of exceptions or something which is equivalent. Here, however, that has not been done. It nowhere appears that the affidavits were ever brought to the attention of the court, much less that they constituted the evidence on which the ruling was made. The case is, therefore, in this respect different from Bronson v. Schulten, 104 U. S. 412, where the order setting aside the Judgment referred to and identified in terms the affidavits found in the transcript as the foundation of the order which was made. Neither is the opinion of the court a part of the record. Our rule 8, § 2, requires a copy of any opinion that is filed in a cause to be annexed to and transmitted with the record, on a writ of error or an appeal to this court, but that of itself does make it a part of the record below. The order to remand is affirmed.