Supreme Court of United States.
*198 Mr. P.A. Knox and Mr. C.E. Boyle for plaintiff in error.
Mr. George Shiras, Jr., for defendant in error.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
As to the first of these defences, it is sufficient to say that the plea of another action pending is a plea in abatement, Bac. Abr. Abatement M; Com. Dig. Abatement H, 24; 1 Chitty's Pl. 10, Am. Ed. 453; 3 id. 903, note y; and by ยง 1011 of the Rev. Stat. which is a re-enactment of a similar provision in the Judiciary Act of Sept. 24, 1789, c. 20, sec. 22, 1 Stat. 84, 85, it is expressly provided that there shall be no reversal in this court or the Circuit Court for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court. Under this statute, it was held in Piquignot v. The Pennsylvania Railroad Company, 16 How. 104, which came from the same district as this case, that the judgment of the Circuit Court, on precisely such a plea as that contemplated by this affidavit of defence, was "not subject to our revision on a writ of error." The defence is one which merely defeats the present proceeding, and does not conclude the plaintiff forever, either as to his right to sue in the Circuit Court of the United States, or as to the merits of the matter in dispute.
All the other defences are covered by the decision of this court in Barnet v. National Bank, 98 U.S. 555. The only *199 difference between that case and this is that there the defendant was the maker of the note who actually paid the usurious interest, and here the defendant is the surety of the maker. It is difficult to see how the surety stands, as to the question now presented, in any better position than his principal. The ground of that decision was, that as without the statute there could be no recovery from the bank for usurious interest actually paid, and as the statute which created the right to such a recovery also prescribed the remedy, that remedy was exclusive of all others for the enforcement of that right. Farmers' & Mechanics' National Bank v. Dearing, 91 U.S. 29. The surety has not any more than his principal the right to recover back the interest without the aid of a statute. Consequently, if his principal could not make this defence, he cannot. The forfeiture and the remedy are creatures of the same statute, and must stand or fall together.
The defence, as stated in the affidavit, is not that interest stipulated for has been included in the note, but that interest actually paid at the time of the discount and the several renewals should be applied to the discharge of the principal. In this particular, the case presents the same facts substantially as Driesbach v. National Bank, 104 U.S. 52. To entitle the defendant to such relief as was given in Farmers' & Mechanics' Bank v. Dearing, cited above, it should be made to appear by distinct averment that the note sued on includes interest stipulated for and not paid, as well as principal. That has not been done is this case.
Judgment affirmed.
