; FEDERAL REPORTER,
act Of thecitiwncan be uuluwfuI whiohthelaw permits. A etatute which would attempt to declare a diffeItent rule would not on1ybe a legal solecism, ,but would commit an act of felo de ae. SeeRailmadOo.",. Dey, (Iowaj) t8 N. W. Rep. 98; Railway Co. v. Dey, 35 Fed. ,IWp.873,:",876; State v.Pfemont, etc."R.:Oo.,,(Neb.) 35 N. W. Rep. 118j and 36 N.,W. Rep. 305; Sorrell v. Railroa,d 00.,75 Ga. 509; Ohicago,B; &- Q. R. ,Co. v. PeQ]Jle, 77 Ill. 443. A right of action in fav;or of the shipper, it may be conceded, existed at common law for extortionate charges, but the statute has superseded remedy. Young v. Railroad 00., infra; Ror. R. R. 1373, the and notes. ' Tmeplaintiff having no ground of action :for an unreasonable and unjust charge against the carrier, exceptwhere:the carrier has transcended the.Iimit prescribed by the state's agentsi the :petition should allege the facts Decessary to bring the case withintbeoperation of the statute. Kennayde v. Railroad 00., 45 Mo. 258; King v. Dickenson, 1 Saund. 130,',Bayard v. Smith, 17 88. This is notdone,and the, is, sustained,. " It appears optheJaceoUhe petition that as to the first 45 oounts the causes of:action arose more than thtee years the institution oLthe suit., Under the. statute. these causes or action are barred. This may betaken advantage of by demurrer. Henoch v. 0htLne:y, 61 Mo. 129; BlisIJiv.: Prichard,:67 Mo. 181; section 3231, Rev. St. 1879; Young "i. RailrOQ,d 00., 33 Mo. App. 509.
(OWcuitCourt, W.'D. MisBouri" W.:D.
, 1'" '
.... Laws Mo. 1891, p. 170, § 2, 'provldlls that when the validity lit any pledge or mortgage of personal indebtedness is drawn in question prOOf that . the Party holding qr ,exacted shall render lien invalid. Beld, that thIs mere1yobre8cribed an additIonal penalty for an act which before unlawfdl.:and tMrefol'eit,invalidated a chattel mortgage, made before it went into. ei!ect, when usurY on the indebtednell8 afterwards, and 'thBt!lluoh a oonstruotion was' nb't' glVibg the statute a ):etroactive'operation. In au ,lIoOUon of replevin to, recov.er 't>ersonalpropertfbeld under a ,mortgage, wbichbas been invalidated under iiMa act by the exactIon, of usury, the plaintii! can only recover the specific cbattel, or its equivalent in money, where he is in a position to so ,elect; and U\ljudlililJleutin aBBumpgtt or for tbe mortgage debt can be rendered therein, nor oan aiiy'amrmative relief be granted to'defendant. Ham, ilton v. Clark, 25 Mo. App.':!l28,'1011owed. ' "'i , ' " '
2;' USURY-CUA'rTIilL MORTGAGIli-'-B.UPLIl:VIN.
At Law. Action, of replevin, brought byComeliaM:ackey against Moses M. Holmes to recover persona,! property held under a chattel mortgage. On motions to strike out the two counts of the answer. Deniell as to the first count, and sustainedr;a8' to the second. Scarrit &- Scar.rit, for plaintiff. Brumback &: Bnvmback and A. F. Evana, ,for defendant.
MACKEY 11. HOLMES.
Judge. 1.' Section 1 of the act of the Missourilegislature adopted April 21, 1891, (Laws Mo. 1891, p. 170,) declares that"Usury may be pleaded as a defense in civil actions in the courts of this that: ll,.uriQusinterest has been paid, the same, in state, cess oUp.e,lega} interest, shall be deemed payment, shall be credited against the upon the pdnClpal debt, and aU costs of the action shall be party gUilty' of exacting usurious interest, who shall in no case recover judgment for more thl1n the amount due llpon the principal debt, with legal interest, after 4educting therefrom all payments of usurious interest made by debtor, whether paid as commissions, 01' brokerage, or as payment upon the principal"or interest on said indebtedness." Section 2 declares that"In actions tor the enforcement of liens upon personal property pledged or mortgaged to sEleare indebterlness, or to maintain or secure possession of property so'pletlged or;mortgaged, or in any other case when the validity of such lien is drawn in, question, proof upon the trial that the party holding or claiming to ,hold any ,.uch lien has received or exacted usurious interest for such indebtedo,lilss ,shall render any' mortgage or pledge of personal property, or any lien whats(lever thereon, given to secure such indebtednes$, invalid and
tl ,', ' ' , '
,This act went into effect on the 22d day of June 1891. The first count in the answer, while it discloses the fact that the chattel mortgage under which the plaintiff claims the right of possession to the property in question was executed prior to the said 22d day of June, 1891, distinctly alleges that the notes executed by the defendant for uflurious interest were paid by defendant; and the money was received by plaintiff, after the 22d day of June 1891. We recognize the fact that the organic law of the (section 15, art. 2, Const. 1875) prohibits any law retrospective in its operation; and wereeognize the further rule of law that all such legislative acts are presumed to be prospective ill their operation.. But the plaintiff never had any lawful right or claim to this usurious interest thus exacted. It was interdicted at the time the contract was made, and any defendant could plead such usurj' in defense to any action predicated of .such contract. Rev. St. 1879, § 2727, and Rev. St. 1889, § 5976. The difference consists merely in the penalty prescribed for the misdeed. Therefore, the plaintiff never had any vested right in this usury. !t was unlawful, and contrary to the policy of the state. And while the legislature could by no ex post facto or retrospective law touch or affect the jlntecedent contract, it was perfectly competent for it to declare, as it did in said section 2 of the act of April 21, 1891, that, if any usurer, after this law shall take effect, shall exaot usurious interest for a debt secured by a chattel mortgage, he shallioae the benefit and protection of such mortgage. !tis but a new penalty attaching to an act declared beforehand to be and for repeating the offense after the new enactment. . Ifit should be held that the act of 1891 does not apply to this transaction and the unlawful interest exacted after its passage, it would result that no penalty whatever could attach to the usurious contract, and that all defense whatsoever w,as .lost to 'the defendant when such contract should be drawn inques-
tion; for by the last section of the act o'f 1891 said' 'section 5976 of the Genenal Statutes of 1889 is expreSsly repealed. when the gllllgE:l of the legislature is such as to admit of no two'meanings as to its import,it is the duty of the courts to be constrained by the interpreta. tion which will plainly effectuate the legislative intent, and preserye the knowbpublic policy of the state. The motion to strike out the first count of the answer is therefore overruled. 2. The second count of the answer, it seems to me, is quite unnecessary. It pleads matters evidently based on the first>section of said act of 1891. I take it that this section applies only to the instance where suit is brought to recover on the note or contract vitiated by usury. The Mtion here is replevin, to recover, the possession of the personal proI?ettymentioned in the mortgage given to secure fl.' ;dept affected by The plaintiff in this ac;:tion can only recover the specific chattel, of.ltseq\livalent in money, where the plaintiff is in position to so elect. Nojndgment in assumpsit or for the mortgage 'debt can be rendered Hamilton v. i Clark, 25 Mo. App. 428. So, if the derense illterpdsed by the defendant in the flrstcount of the answer be 'sustained by the proofs, it wilf put an end to this action. Neither the statute in question, nor any.known rule of procedute,entitles the defendanfto any relief oVer against the actor in such event. The motion to strike out the second count of the answer is sustained.
PULLMAN PALACE CAR
(Oircuit Oourt, D. Delaware. November 14,1892.)
1.' DEA.TH BY WRONGPUL ACT-EXCESSIVE DAMAGEB. . In a1:l a.ction against a raUroad c,ompany to. recover damages. for the. death. of plaintiff·'s husband, an ordinarY.laborer 80 years of age, earning about $400 a year, to induce the belief that the a verdict'Qf$7,Ooo is notso,excessiveand jury were influenced by pl'rtiality or a new trial should be refused.
SAME-RULE OF DAMAGES·
. In all action by a wife for causing the del'th of her husband, a dl'y laborer, the maxilI/.umrecovery is not necessarily limited to a Bum which would produce an annjlal income equal to one his ann,ual earnings.
At Law, Action. pyMaggie Harkins against the ,Pullman Palace .Car Company to. for the death of her husband. VtJrdict for ,plaintiff for $7!000.. <;)n motion for new trial. Refused.' George .1l.. .for the Illation. Levi 0. Bird, opposed.
WALES, District Judge: This was an action to recover damages for the death ofplaintiff'$ husband, cllused, it was alleged, by the negligence of the defendant. A trial was had at the present term, and the