[124]resenting *150 shares of the capital stock of | held. except as the conditions may have been changed by the facts hereinbefore stated, but that neither the defendant nor the said Peterson ever took any part in the management of either of said banks, or participated in the administration of their affairs." The "facts hereinbefore stated" consisted, not only of those which have been given above, but also of correspondence between the offi cers of defendant and the officers of the Helena National Bank and the assignee of the pledgeor Ashby, which is set out in the agreed statement. the Helena National Bank of Helena, Montana. The note taken for the loan was of the kind usually termed a collateral note, and authorized the sale of the collateral deposited as security therefor upon default in the payment of the note. At the time of the loan Ashby was president of the Helena National Bank. On July 26, 1893, Ashby made a general assignment for the benefit of his creditors, and among the property assigned by him was the certificate for 150 shares of the capital stock of the Helena National Bank, described by the assignor as This statement has been referred to for then held by the Merchants' Loan & Trust the purpose of understanding the materialiCompany in pledge. About the date of the ty of certain facts found or agreed upon, the assignment Ashby resigned the presidency failure to do which prevents our use of the of the Helena National Bank. In the sum-statement in the decision of the case. The mer of 1894 the Ashby note still remained contention of the plaintiff herein is that the unpaid, and the certificate of stock re- substitution of the original stock for that of mained in the possession of the defendant, the First National Bank of Helena was made no transfer thereof being made upon the without the consent of the pledgeor, and books of the bank. Later in the year 1894 amounted to a conversion of the stock, and the parties in interest in Helena proposed made the defendant, when it took the shares to consolidate the Helena National Bank of stock in the consolidated bank, the ownwith the First National Bank of Helena, ander thereof, and rendered is liable to assessthe consent of a sufficient number of share- ment as such owner, notwithstanding the holders in the bank was obtained before the fact that the stock was entered and redefendant was asked to consent to the trans-mained on the books of the bank and in the fer of the shares held by it in pledge, on the certificate issued by the bank, in the name same terms upon which the owners of shares of Peterson, as owner. in the Helena National Bank had agreed to a consolidation of the two banks, by taking shares in the First National Bank of Helena in exchange for their shares in the Helena National Bank. at the rate of 80 per cent of new shares in exchange for the old. In response to such request the defendant sent the certificates for the 150 shares in the Helena National Bank to the president of that bank. In exchange therefor certificates for 120 shares of stock in the First National Bank of Helena were sent to the defendant, the shares being entered, at request of defendant, on the books of the bank and in the certificates, in the name of P. C. Peterson, an employee of the defendant. Subsequently. the First National Bank of Helena went into the hands of a receiver, who found the 120 shares standing on its books in the name of Peterson. The receiver, after the assessment was made. commenced this action against the defendant trust company, alleg ing that it was the real owner of the stock. [125]and that it stood in the name of Peterson for the purpose of enabling the defendant to evade liability as owner. Aside from the question whether the defendant had or had not the right as pledgee of the stock in the Helena National *Bank to[126) cause the same to be transferred into shares of the other bank after a majority of the stockholders had consented to a consolidation, it would seem that if Ashby, the owner, had himself consented to the arrangement, or subsequently ratified it, the substituted stock would remain under the same terms and conditions as attached to the original stock, and it would be simply a pledge to, and not an ownership of stock by, the defendant; and as the stock never stood in the name of the defendant, the case would be governed by that of Pauly v. State Loan & T. Co. 165 U. S. 606, 41 L. ed. 844. 17 Sup. Ct. Rep. 465, and the cases there cited, and Jackson v. Emmons. 176 U. S. 532, 44 L. ed. 576-20 Sup. Ct. Rep. 465. The difficulty we meet, which prevents the decision of the case from resting on the statement of facts. lies in the omission therefrom of any finding or agreement upon the question of fact whether the pledgeor had or had not consented to the change; and inThe note remains unpaid, although two stead of any such finding or agreement there small payments on account have been made is placed in the statement certain correby the assignee of the maker since the as-spondence from which, together with other signment. facts stated. an inference of consent or perIt is part of the statement agreed upon haps ratification might be drawn, but is not that the original shares of stock were placed found or agreed upon, thus leaving the ultiin defendant's possession simply as a pledge mate fact of consent or nonconsent a matter or collateral security for the payment of the of inference, and an inference of fact, and note made by Ashby, and the certificates not of law; and this is a material fact ariswhich have been substituted for them, as al-ing upon the statement as agreed upon. ready mentioned, "have ever since been and Neither is there any finding upon the quesnow are in the possession and control of the tion of the consent of the assignee of the defendant, and are held by it in the same pledgeor to the substitution of the stock, way and for the same purpose as the certifi-or upon the question of ratification by him. cates for 150 shares of the capital stock of There are facts from which the consent or the Helena National Bank were originally ratification might be inferred, or the con Here, although there is a general finding in favor of the defendant, yet there is a statement of facts which contains certain ultimate facts, together with certain other facts evidential in their nature from which an important and ultimate fact might be inferred, but in regard to which there is no agreement or finding whatever. In such case it would not be proper to regard the agreed statement as a sufficient finding of ultimate facts within the statute. trary, but there is no finding of any ultimate, duced at the trial presented no question of fact regarding the matter. law which the court could review. In that The result of the decisions under the stat-case there was no agreed statement of facts. utes providing for a waiver of trial by jury, and the proceedings on a trial by the court (Rev. Stat. §§ 649, 700) is that when there are special findings they must be findings of what are termed ultimate facts, and not the evidence from which such facts might be but are not found. If, therefore, an agreed statement contains certain facts of that nature, and in addition thereto and as part of such statement there are other facts of an evidential character only, from which [127] material ultimate fact might be inferred, but which is not agreed upon or found, we cannot find it, and we cannot decide the case on the ultimate facts agreed upon without reference to such other facts. In such case we must be limited to the general finding by the court. We are so limited because the agreed statement is not a compliance with the statute. a As to what is necessary in special findings or in an agreed statement of facts, the authorities are decisive. It is held that upon a trial by the court, if special findings are made, they must be not a mere report of the evidence, but a finding of those ultimate facts on which the law must determine the rights of the parties; and if the finding of facts be general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions; and in such case the bill cannot be used to bring up the whole testimony for review, any more than in a trial by jury. Norris v. Jackson, 9 Wall. 125, 19 L. ed. 60S. In this case the finding is general, and, strictly construing the statute, the only questions which would be reviewable would be those questions which arose during the progress of the trial, and which were presented by bill of exceptions. It has, however, been held that where there was an agreed statement of facts submitted to the trial court and upon which its judgment was founded, such agreed statement would be taken as an equivalent of a special finding of facts. Wayne County Supers. v. Kennicott, 103 U. S. 554, 26 L. ed. 486. But as such equivalent, there must, of course, be a finding or an agreement upon all ultimate facts, and the statement must not merely present evidence from which such facts or any of them may be inferred. An exception to a general finding of the court on a trial without a jury brings up no question for review. The finding is conclusive, and there must be exceptions taken to the rulings of the court during the trial in order to permit a review thereof. Mercan tile Mut. Ins. Co. v. Folsom, 18 Wall. 237, 21 L. ed. 827. In Martinton v. Fairbanks, 112 U. S. 670, 28 L. ed. 862, 5 Sup. Ct. Rep. 321, which was a trial before the judge without the intervention of a jury, and where there was only a general finding of facts and a judgment for the plaintiff below, the court decided that [128] an exception to the general finding of the court for the plaintiff upon the evidence ad * In Raimond v. Terrebonne Parish, 132 U. S. 192, 33 L. ed. 309, 10 Sup. Ct. Rep. 57, it was said that the agreed statement of facts by the parties, or a finding of facts by the circuit court, must state the ultimate facts of the case, presenting questions of law only, and not be a recital of evidence or of circumstances which may tend to prove the ultimate facts, or from which they may be inferred. It In Glenn v. Fant, 134 U. S. 398, 33 L. ed. 969, 10 Sup. Ct. Rep. 583, there was a stipulation that the case should be heard upon an agreed statement of facts annexed, with leave to refer to exhibits filed therewith. was held that the stipulation could not be regarded as taking the place of a special verdict or of a special finding of facts. and that the court had no jurisdiction to determine the question of law arising thereon. It is true there was no bill of exceptions in that case, but the bill in this case presents no exception taken during the progress of the trial, and only contains an exception to the conclusion of the trial court in ordering judgment upon the issues in favor of the defendant. Lehnen v. Dickson, 148 U. S. 71, 37 L. ed. 373, 13 Sup. Ct. Rep. 481, decided that any mere recital of the testimony, whether in the opinion of the court or in a bill of exceptions, could not be deemed a special finding of facts within the scope of the statute; and if there were a general finding and no agreed statement of facts, the court must accept that finding as conclusive, and limit its inquiry to the sufficiency of the complaint and to the rulings, if any be preserved on ques tions of law arising during the trial. The court, in the opinion written by Mr. Justice Brewer, said: "But the burden of the statute is not [129] thrown off simply because the witnesses do not contradict each other, and there is no conflict in the testimony. It may be an easy thing in one case for this court, when the testimony consists simply of deeds, mortgages, or other written instruments, to make a satisfactory finding of the facts; and in another it may be difficult when the testimony is largely in parol and the witnesses directly contradict each other. But the rule of the statute is of universal application. It is not relaxed in one case because of the ease in determining the facts, or rig orously enforced in another because of the difficulty in such determination. The duty of finding the facts is placed upon the trial court. We have no authority to examine the testimony in any case, and from it make a finding of the ultimate facts." In St. Louis v. Western U. Teleg. Co. 166 U. S. 388, 41 L. ed. 1044, 17 Sup. Ct. Rep. 608, it was held that the special finding of facts referred to in the acts allowing parties to submit issues of fact in civil cases to be tried and determined by the court is not a mere report of the evidence. but a finding of those ultimate facts upon which the law must determine the rights of the parties; and if the finding of facts be general, only such rulings made in the progress of the trial can be reviewed as are presented by a bill of exceptions; and in such case the bill cannot be used to bring up the whole testimony for review, any more than in a trial by jury. We now hold, in accordance with the authorities, that an agreed statement of facts which is so defective as to present, in addition to certain ultimate facts, other and evidential facts upon which a material ultimate fact might have been, but which was not, agreed upon or found, cannot be regarded even as a substantial compliance with the statute. Being concluded by the general finding of the issues in favor of defendant, there is no error in the record, and the judgment must be affirmed. N ERROR to the Supreme Court of the Statement by Mr. Justice Brown: *This was an action brought originally in[130] the circuit court for Greene county, Missouri, by the Haseltines against the Central National Bank, to recover double the amount of certain alleged usurious interest paid by the plaintiffs to defendant, and which they sought to recover under the 2d clause of Rev. Stat. § 5198, providing that "in case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same." The trial court rendered judgment in favor of the plaintiffs for $831.70. From this judgment defendant appealed to the supreme court of the state, which reversed the judg ment of the trial court upon the ground that the plaintiffs had neither paid nor tendered the principal sum due, and remanded the cause "for further proceedings to be had therein, in conformity with the opinion of this court herein delivered." Defendant moved to dismiss the writ of error upon the ground that this was not a final judgment. Messrs. James Baker and Seward A. Haseltine submitted the cause for plaintiffs in error: The provision of U. S. Rev. Stat. § 709, for writs of error, would be nugatory if the state supreme courts could prevent this court from reviewing its decisions by deciding a case on its merits and then returning the case to the lower courts to set aside the judgment and dismiss the action. A judgment is final, for the purposes of a writ of error to this court, which terminates merits of the case. the litigation between the parties on the Mower v. Fletcher, 114 U. S. 127, 29 L. ed. 117, 5 Sup. Ct. Rep. 799. Mr. John Ridout submitted the cause for defendant in error: The judgment of the highest court of law of a state is not a final judgment within the 25th section of the judiciary act of 1789 (U. S. Rev. Stat. § 709), if the cause has been remanded to the inferior state court for further proceedings consistent with the judg ment of the highest court. Parcels v. Johnson, 20 Wall. 653, 22 L. ed. 410; McComb v. Knox County, 91 U. S. 1, 23 L. ed. 185; Baker v. White, 92 U. S. 176, 23 L. ed. 480; Bostwick v. Brinkerhoff, 106 I State of Missouri S. 8, 27 L. ed. 73, 1 Ct. 15, Johnson v. Keith, 117 U. S. 199, 29 L. ed. SSS, 6 Sup. Ct. Rep. 669. reversing a judgment of the Circuit Court W. 895. *Mr. Justice Brown delivered the opinion[131] The motion to dismiss must be granted. We have frequently held that a judgment NOTE--As to what judgments or decrees are reversing that of the court below, and refinal for purposes of review-see notes to Brushmanding the case for further proceedings, Electric Co. v. Electric Improv. Co. 2 C. C. A. 379: Central Trust Co. v. Madden, 17 C. C. A. 238: Prescott & A. C. R. Co. v. Atchison, T. & S. F. R. Co. 28 C. C. A. 482, and Gibbons v. Ogden. 5 I.. ed. U. S. 302. is not one to which a writ of error will lie. The case of Mower v. Fletcher, 114 U. S. 127. 29 L. ed. 117. 5 Sup. Ct. Rep. 799, is not in point, as the judgment of the supreme court of the state remanded that case to | the inferior court, with an order to enter a specified judgment, nothing being left to the judicial discretion of the court below. A like ruling was made in Atherton v. Fowler, 91 U. S. 143, 23 L. ed. 265, and Tippecanoe County Comrs. v. Lucas, 93 U. S. 108, 23 L. ed. 822. lap, 5 How. 51, 12 L. ed. 46; Tracy v. Hol- Dismissed. Err., V. CENTRAL NATIONAL BANK. While the judgment may dispose of the case as presented, it is impossible to anticipate its ultimate disposition. It may be voluntarily discontinued, or it may happen that the defeated party may amend his pleading by supplying some discovered de- SEWARD A. HASELTINE et al., Plffs. in fect, and go to trial upon new evidence. To determine whether, in a particular case, this may or may not be done, might involve an examination, not only of the record, but even of the evidence in the court of original jurisdiction, and lead to inquiries with regard to the actual final disposition of the case by the supreme court, which it might be difficult to answer. We have, therefore, always made the face of the judgment the test of its finality, and refused to inquire whether, in case of a new trial, the defeated party would stand in a position to make a better case. The plaintiffs in the case under consideration could have secured an immediate review by this court, if the court as a part of its judgment of reversal had ordered the circuit court to dismiss their petition, when, under Mower v. Fletcher, they might have sued out a writ of error at once. (See S. C. Reporter's ed. 132-137.) National banks—usurious interest-set-off. Usurious interest paid in cash upon renewals of a note given to a national bank, and of all other notes of which it was a consolidation, cannot be set off in an action upon the note, as the remedy provided by U. S. Rev. Stat. § 5198, where such usurious interest has been actually paid, viz., a recovery in an action in the nature of an action of debt, of twice the amount of the interest thus paid, is exclusive. [No. 63.] McComb v. Knox County Comrs. 91 U. S. Submitted October 29, 1901. Decided Do1, 23 L. ed. 185, is a case in point. That was a writ of error to the court of common pleas of the state of Ohio. The case had been taken to the supreme court of the state, where the judgment of the common pleas was reversed for error in sustaining a demurrer to the replies, and overruling that to the answer. Upon suggestion by defendant that he might ask leave to amend his answer, the case was remanded "for further [132]proceedings according to law." Upon the mandate being filed, defendant did not ask leave to amend his answer, but elected to rely upon his defense already made. Thereupon the court gave judgment against him, and he sued out a writ of error from this court. We held that the judgment of the supreme court, being one of reversal only, was not final: that so far from putting an end to the litigation it purposely left it open; that the law of the case upon the pleadings as they stood was settled, but ample power was left in the common pleas to permit the parties to make a new case by amendment; that the final judgment was that of the common pleas; that "it may have been the necessary result of the decision of the question presented for its determination; but it is none the less, on that account, the act of the common pleas," and was, when rendered, open to review by the supreme court. The writ was dismissed. A similar case is that of Great Western Teleg. Co. v. Burnham, 162 U. S. 339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850. This writ of error is therefore dismissed upon the authority of Brown v. Union Bank, 4 How. 465, 11 L. ed. 1058; Pepper v. Dun cember 2, 1901. [IN ERROR to the Supreme Court of the State of Missouri to review a judgment affirming a judgment of the Circuit Court of Greene County in favor of plaintiff in an action on a promissory note. Affirmed. See same case below, 155 Mo. 58, 55 S. W. 1015. Statement by Mr. Justice Brown: *This was an action instituted in the cir-[133] cuit court of Greene county, Missouri, by the Central National Bank, to recover of the defendants the amount of a promissory note for $2,240, executed June 15, 1896, by two of the defendants as principals and two others as sureties. The answer was a general denial and a special defense of usury in the original notes, and partial payments, as set up in the several paragraphs of the answer. The case was referred to a referee, who reported the note sued upon to be a renewal note, and a consolidation of five original notes, the first of which was for $800, given July 27, 1891; the second for $100, of the same date; the third for $500, dated January 24, 1892, and credited by $100 payment thereon; the fourth for $340, dated January 16. 1893. and the fifth and last for $600, dated May 29, 1893. The referee further found that the defendants had received on this note $2.240 (or rather out of the notes constituting that NOTE.-On usury by national banks--see note to Farmers' & M. Nat. Bank v. Dearing. 23 L. note) the sum of $2,199.35 in cash, making | this note, upon other notes of which this was the amount reserved out of the note when it a consolidation, and also upon this note, was made $40.65. That there had been paid usurious interest aggregating $580, which cash discounts upon the several renewals of they asked to have deducted from the printhe notes which constituted the $2,240 note cipal sum of $2,240, represented by this note, sued upon, down to October 24, 1894, exclu- thereby reducing the plaintiff's claim to $1,sive of the amounts reserved out of the 660. notes at the time they were originally given, We understand it to be conceded that, as the sum of $566.70, which cash discounts the note in question was given to a national were paid in advance at the dates of the sev-bank, the definition of usury and the penaleral renewals. That the whole amount of ties affixed thereto must be determined by discounts and interest paid, as well as those the national banking act, and not by the law deducted by the bank, upon all said loans of the state. Farmers' & M. Nat. Bank v. from the beginning to the end down to and Dearing, 91 U. S. 29, 23 L. ed. 196. In that including the note sued on, was $947.50. case it was held that a law of New York forThat these payments were made in excess of feiting the entire debt for usury was superthe legal rate for said loans. seded by the national banking law, and that such law was only to be regarded in deter mining the penalty for usury. Upon this report the court entered judg ment in favor of the plaintiff for $2,199.35 (or, apparently, by mistake $2.199), that be- That part of the original national banking the face of the note sued on after de- ing act which deals with the subject of usury ducting the discount of $40.65, reserved and interest is now embraced in §§ 5197 and when the note was executed. Upon appeal 5198 of the Revised Statutes, the first one to the supreme court this judgment was af-of which authorizes national banks to charge firmed (155 Mo. 58, 55 S. W. 1015), and defendants sued out this writ of error. interest "at the rate allowed by the laws of the state," and, when no rate is fixed by such laws, a maximum rate of 7 per cent. The next section is as follows: Messrs. James Baker and Seward A. Haseltine submitted the cause, and Mr. "5198. The taking, receiving, reserving, or James Baker filed a brief for plaintiffs in er- charging a 1ate of interest greater than is allowed by the preceding section, when knowAppellants were entitled to have the usuri-ingly done, shall be deemed a forfeiture of ous interest paid applied upon the note of respondent. ror: Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. 390; Moniteau Nat. Bank v. Miller, 73 Mo. 187; First Nat. Bank v. Turner, 3 Kan. App. 352, 42 Pac. 936; Guthrie v. Reid, 107 Pa. 251; National Bank v. Lewis, 75 N. Y. 516, 31 Am. Rep. 484: National Bank v. Davis, 6 Cent. L. J. 106: Sydner v. Mt. Sterling Nat. Bank, 94 Ky. 231. 21 S. W. 1050. Mr. John Ridout submitted the cause for defendant in error: By U. S. Rev. Stat. § 5198, a new right and new remedy were created, and the remedy provided by that section is exclusive of any other. Barnet v. Muncie Nat. Bank, 98 U. S. 558, 25 L. ed. 213; Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658; Stephens . Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336; Carter v. Carusi, 112 U. S. 478, 28 L. ed. 820, 5 Sup. Ct. Rep. 281. The decisions of this court construing the sections of the national bank act must prevail over decisions of the state courts. Farmers' & M. Nat. Bank v. Deuring, U. S. 33, 23 L. ed. 198. the entire interest which the note, bill, or Two separate and distinct classes of cases are contemplated by this section; first, those wherein usurious interest has been taken, received, reserved, or charged, in which case there shall be "a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon;" second, in case usurious interest has been paid, the person paying it may recover back twice the amount of the interest "thus paid from the association taking or receiving the same." While the first class refers to interest taken and received, as well as that reserved or charged, the latter part of the clause ap91parently limits the forfeiture to such inter est as the evidence of debt carries with it, or which has been agreed to be paid, in con [134] *Mr. Justice Brown delivered the opin-tradistinction to interest actually paid, ion of the court: The only question involved in this case is whether, in an action upon a note given to a national bank, the maker may set off usurious interest paid in cash upon renewals of such note, and of all others of which it was a consolidation. In this case, defendants sought to show that they had paid to the plaintiff bank within two years prior to the execution of which is covered by the second clause of the section. Carrying this perfectly obvious distinction in mind, the cases in this court are entirely harmonious. That of Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, 18 Sup. Ct. Rep. 390. arose under the first clause. The facts are not stated in the report of the case. but referring to the original record, it appears that plaintiff sued the bank to recover twice |