Hogan v. Ross. 13 H. to prove the contrary. Indeed, it was agreed by the counsel on both sides, during the argument, that the rates charged were the usual and customary prices of exchange between Cincinnati, where the bills were drawn, and New Orleans, where they were payable, at the times they were discounted. The counsel for the appellants urged that the rates were higher than were charged on sight bills. But these were time bills, and it is no proof of usury that the banks did not take the market rates on sight bills which they did not discount, if they took only the market rates on those they did discount. It was also insisted that the banks did not buy these bills, but were the first takers for loans of money made to the drawers. But we are unable to perceive how the fact that the banks were the first takers can be of any importance in this case, nor do we deem it material that the bills were discounted for the drawers. The reason why the addition of the current rate of exchange to the legal rate of interest does not constitute usury is, that the former is a just and lawful compensation for receiving payment at a place where the money is expected to be less valuable than at the place where it is advanced and lent. And this reason exists when the lender discounts the drawer's bill as well as when he buys a bill in the market of the payee. In neither case is it usury to take the regular and customary compensation for the loss in value by change of place of payment. It is argued that no usage or custom can make an unlawful contract valid. This must be admitted. But the contract is not unlawful, unless more than six per cent. has been reserved or taken for interest; if more has been reserved or taken, not for the loan and forbearance, but for a change in the place of payment, then the contract is lawful; and in determining whether the excess over six per cent. has been reserved for interest, or as a just compensation for changing the place of payment, the custom, or the market value of this change, is evidence of the real intent of the parties, and so evidence of the validity of the contract. Our opinion is, that usury was not made out in either of these mortgages, and that there was no error in the decree of the court below declaring their validity. The decree of the circuit court is affirmed with costs. 20 H. 204, 208; 5 Wal. 277. SMITH HOGAN, ARTHUR S. HOGAN, and REUBen Y. Reynolds, Plaintiffs in Error, v. AARON Ross, who sues for the Use of ROBERT PATTERSON. 13 H. 173. Where a set of pleas are all applicable to the first count, which was struck out after the issues thereon were made up, and the second count was not answered, it was regular to give judgment for the plaintiff for want of a plea. Hogan v. Ross. 13 H. THE case is stated in the opinion of the court. R. Davis, for the plaintiff. Coxe, contrà. | 181] * DANIEL, J., delivered the opinion of the court. This was an action of debt instituted by the defendant in error, who was plaintiff in the court below against the plaintiffs in error, as the obligors in an injunction bond. To the original declaration three pleas were filed at the June term of the court, 1845; to the second and third of these pleas the plaintiff demurred; and at the December term, 1845, the defendants demurred to the plaintiff's declaration. The demurrers to the two pleas above mentioned were sustained by the court, and afterwards, namely, on the 10th December, 1846, the court decided in favor of the demurrer to the declaration; giving, at the same time, leave to amend. The plaintiff, under this leave, filed his amended declaration, presenting the case which was acted upon in the court below. The amended declaration consists of two counts; the first sets out the injunction bond with the condition thereto annexed, and alleges a breach of that condition as the special ground of the action. The second count is for the penalty of the bond, as having been forfeited by failure of payment. The defendants filed five pleas to the amended declaration; upon the first of these pleas an issue of fact was joined, and the four following were by the court adjudged bad upon demurrer. At the December term of the court, 1847, the cause coming on for trial upon [*182] the issue joined *upon the first plea, after the testimony on the part of the plaintiff was closed, the defendants tendered a demurrer to the evidence offered by the plaintiff, but in this the plaintiff refused to join, and dismissed or struck out the first count in his declaration; whereupon the defendants moved the court for judgment on the demurrer to evidence, for want of a joinder thereon, but this motion the court refused to grant, and afterward entered up the following judgment: "It appearing to the satisfaction of the court that the defendants have filed no plea to the second count in the plaintiff's declaration, but have therein made default; it is therefore considered by the court that the plaintiff recover of the defendants the sum of $6,354.10 debt in the second count in the declaration mentioned, and the costs in this cause expended." If in our examination of the decision of the circuit court, it were deemed necessary to pass upon the legal effect of the pleas tendered by the defendants below, and overruled by the court, we could have Hogan v. Ross. 13 H. no hesitation in pronouncing each of those pleas bad upon demurrer. It is a settled rule in pleading, that wherever a plea in its commencement professes to respond to the entire declaration or count, and is in substance and reality in answer to part only of such declaration or count, the plea is bad, and the defect may be availed of upon demurrer. If a plea profess in the commencement to answer only part of the declaration or count, and is in truth and substance a response to such part alone, the plaintiff should not demur, because the residue of the count or declaration is unanswered, but should take judgment for that residue by nil dicit, as by demurring he would operate a discontinuance of the entire cause. The authorities upon these canons of pleading will be found collected from the earliest decisions by Sergeant Williams, in note 3 to the case of The Earl of Manchester v. Vale, 1 Saund. 28. The same rules are expressly affirmed in Tippet v. May, 1 Bosanquet & Puller, 411; Everard v. Patterson, 6 Taunt. 625; Wilcox v. Newman, 1 Chitty's Rep. 132, and Hallet v. Holmes, 18 Johns. 28. In the case before us, every plea tendered by the defendants embraces within its commencement the entire cause of action, averring that the plaintiff should not have or maintain his action; yet each of them in its body and substance, is limited to the condition of the injunction bond and to some stipulation in that condition to which each plea specifically refers. The pleas demurred to, therefore, could not but be properly overruled; and with respect to that upon which issue was joined, it being immaterial and inconclusive as to the entire declaration, and defective in the same sense with the others, had the issue been found against the plaintiff, he would still *have been entitled to judgment non obstante veredicto. [*183] But upon this record there remains no subject for the application of the rules of pleading above adverted to. The first count in the declaration having been dismissed or stricken out, every thing which was pertinent strictly to that count, or which constituted a defence to the case made thereby, falls with the count against which such defence was interposed. The case then remains solely on the second count in the declaration, and it cannot be pretended that to this count, consisting purely of a money claim, connected with no condition, any pleas have been interposed upon this record to this count; therefore the case must be considered as one of plain default entirely unanswered by the defendant below, and as having been properly so treated by the circuit court. The judgment of the circuit court is, therefore, affirmed. 7 Wal. 82 Coffee v. The Planters Bank of Tennessee. 13 H. THOMAS J. COFFEE, Plaintiff in Error, v. THE PLANTERS BANK OF TENNESSEE. 13 H. 183. As, by the law of Mississippi, a joint promise on negotiable paper, makes a several, as well as a joint liability to action, the plaintiff, in an action against two or more jointly, may, by leave of the court, discontinue against all but one, and take judgment against him alone, though the defendants plead jointly. And where such a judgment was rendered on a count for money had and received, and no objection was taken in the court below, upon a writ of error it was intended, in support of the judgment, that the liability of the defendant arose out of negotiable paper, and so was several as well as joint. ERROR to the circuit court of the United States for the southern district of Mississippi. The case is stated in the opinion of the court. Coxe, for the plaintiff. Badger, contrà. [ * 186 ] The questions of law to be decided in this cause, arise upon the following facts: The defendant in error, (the plaintiff in the court below,) described in the pleadings to be a corporation created by the laws of the State of Tennessee, the stockholders of which are citizens of Tennessee, declared in assumpsit, in the court below against the Mississippi and Alabama Railroad Company, averred to be a corporation created by the laws of Mississippi, and also against William H. Shelton, Robert G. Crozier, Henry K. Moss, Samuel M. Puckett, Thomas G. Coffee, (the plaintiff in error,) and William H. Washington, averring the said individuals to be all citizens of the State of Mississippi. The declaration contained twenty-four counts; twenty-three of which set out respectively checks drawn by the Mississippi and Alabama Railroad Company, for different sums of money, payable to some of the individual defendants in the court below, and indorsed by the payee and successively by the other defendants, so as at last to become payable to the plaintiff below, the defendant in error as the last indorsee. * DANIEL, J., delivered the opinion of the court. The last or twenty-fourth count in the declaration, was upon an indebitatus assumpsit, for $150,000, for money lent and advanced, for the like sum for money laid out and expended, and for the like sum for money had and received, laying the damages at $300,000. The defendants below, Moss, Puckett, Shelton, and Coffee the plaintiff in error, appeared to the suit and pleaded jointly the general issue. Coffee v. The Planters Bank of Tennessee. 13 H. Crozier also appeared and pleaded non assumpsit. The Mississippi and Alabama Railroad Company did not appear. Afterwards, upon a suggestion of the death of Washington and Shelton, the suit was abated as to these parties, and upon the motion of the plaintiff below, the defendant in error, * the suit was [* 187 ] ordered to be discontinued as to all the defendants below except the plaintiff in error; and a jury being impanelled upon the issue joined as to him, found a verdict against him in damages for the sum of $149,924.97, for which sum, together with costs of suit, a judgment was entered by the circuit court. No exception appears to have been taken to the forms of proceeding, nor to any ruling by the court upon the trial, and the questions for consideration here are raised upon facts as above set forth. On behalf of the plaintiff in error it is insisted, that upon none of the twenty-three counts, each of which sets forth a deduction of title by intermediate indorsements from the payees, can this action be maintained, because it appears, on the face of those counts, that the drafts or checks constituting the claim were drawn by a corporation situated within the State of Mississippi, and the members of which corporation were citizens and inhabitants of that State, in favor of payees who being also citizens of that State, could not sue upon those drafts in the courts of the United States, and could not, by indorsement, confer upon others a right denied by the law to themselves. By the 11th section' of the act of congress establishing the judicial courts of the United States, it is declared, that no district or circuit court of the United States shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange. This provision has been expounded by this court as early as 1799 in the case of Turner's Administrator v. The Bank of North America, 4 Dall. 8. It has received a further interpretation in the case of Montalet v. Murray, 4 Cranch, 46; of Young v. Bryan, 6 Wheat. 146; of Mollan v. Torrance, 9 Wheat. 537; and of Evans v. Gee, 11 Pet. 80. These several decisions have settled the construction of the 11th section of the judiciary act, and the principle they have affirmed is unquestionably fatal to a right of recovery under the first twenty-three counts, for they deny jurisdiction in the courts of the United States over cases of intermediate deduction of title from the payee, where such payee and the maker of the instrument are citizens of the same 1 1 Stats at Large, 78. |