majority opinion does not refer to the fact | being applied in payment of the prior ones; that in several cases the United States Su- that all of the bills had been paid but the preme Court had previously announced the one in suit; and that nothing was due to opposite rule under the national banking the bank. A demurrer was sustained to act, and that at the conclusion of the Mc- this answer, and judgment entered for the Breom opinion these previous decisions are full amount of the bill. expressly referred to, and held not applicable to that case. Thus, in Barnet v. Muncie Nat. Bank, 98 U. S. 555, 25 L. ed. 212, the defendant was sued upon a bill of exchange for $4,000, dated November 18, 1873. In defense of the suit it was averred, first, that he became indebted to the bank on April 8, 1866, and from that time until the bull sued on was made the indebtedness was never less than $4,000; that the bank had taken $5,000 in excess of the legal rate of interest; that for evasion the bills were arranged in series, and from time to time were renewed, the proceeds of the new bills county or city" in which the bank is located, | 5198, authorizes such an action to be brought having jurisdiction in similar cases, so as to justify the bringing of an action in a state court of Illinois against a national bank situated in Iowa. And the jurisdiction of such an action is impliedly withheld from all other state courts than those included in the amendment of February 18, 1875, authorizing suits and proceedings against such banks to be brought in "any state, county, or municipal court in the county or city" in which the bank is located, having jurisdiction in such cases. Morgan v. First Nat. Bank, 93 N. C. 352, Affirmed in 132 U. S. 141, 33 L. ed. 282, 10 Sup. Ct. Rep. 37. But the provision for suit against a national bank in any state, county or municipal court "in the county or city" in which the bank is located confers a mere personal privilege on such banks to be sued in the city or county of their location, which privilege the bank may waive, and does waive by appearing in a suit brought in a state court outside the county of its location, and making defense without claiming such privilege. First Nat. Bank v. Morgan, 132 U. S. 141, 33 L. ed. 282, 10 Sup. Ct. Rep. 37, Affirming 93 N. C. 352. And such a suit brought in a state court of the county where the bank is located may be changed to another court, although no provision for a change of place of trial from one state court to another is contained in the act, as the design of Congress was to confer jurisdiction on proper state courts, and leave them, after the action was commenced, to be governed solely by the state statutes so far as the mode of proceeding was concerned, including even a change of place of trial. Kinser v. Farmer's Nat. Bank, 58 Iowa, 728, 13 N. W. 59. d. Who may maintain action. An action to recover back usurious interest paid to a national bank can be maintained only by the person paying such interest, or his or her legal representatives. Lealos v. Union Nat. Bank, 9 N. D. 60, 81 N. W. 56; Lazear v. National Union Bank, 52 Md. 78, 36 Am. Rep. 355. Where a trustee gives his individual note to a bank to obtain a mortgage executed on the trust property by him and the cestui que trust, to protect the trust estate, the mortgage being assigned to the bank as security, he cannot recover individually from the bank twice the amount of usurious interest paid to it, where he paid only a small part of the interest, and such payment was on account of the heirs of the cestui que trust, and such amount was refunded to him by them, as U. S. Rev. Stat. § The court, after quoting the statute, said: "Two categories are thus defined, and the consequences denounced: (1) Where illegal interest has been knowingly stipulated for, but not paid, there only the sum lent, without interest, can be recovered. (2) Where such illegal interest has been paid, then twice the amount so paid can be recovered, in a penal action of debt, or suit in the nature of such action, against the offending bank, brought by the persons paying the same, or their legal representatives. The statutes of Ohio and Indiana upon the subject of usury may be laid out only by the one paying the Illegal Interest, or his legal representatives. Pardoe v. Iowa State Nat. Bank, 106 Iowa, 345, 76 N. W. 800. Barbour v. National Exch. Bank, 45 Ohio St. 133, 12 N. E. 5, holds that the receiver of a corporation which has paid illegal interest to a national bank may, as the "legal representative" of the corporation, maintain an action to recover back twice the amount of interest paid. A creditor of the one paying the usury cannot maintain the action. Thus, a judgment creditor of an insolvent debtor cannot maintain an action against a national bank to recover twice the amount of illegal interest paid by the debtor to such bank. Barrett v. National Bank, 85 Tenn. 426, 3 S. W. 117. And in Steadman v. Redfield, 8 Baxt. 337, the court says that the principle that when a penalty is prescribed by statute, and the remedy for its recovery is also given, the penalty cannot be recovered in any other mode, is no doubt correct, and from this we may conclude that the penalty prescribed by the act of Congress cannot be recovered by a creditor of the party paying the usury, as the remedy prescribed by the act is only given to the party paying, or his legal representative. The courts are divided as to the right of an assignee for creditors to maintain such an action. Thus, an assignee under a deed of trust for the benefit of creditors may maintain an action against a national bank to recover twice the amount of illegal interest paid by his assignor. Alves v. Henderson Nat. Bank, 89 Ky. 126, 9 S. W. 504; Henderson Nat. Bank v. Alves, 91 Ky. 142, 15 S. W. 132. But on a sub And an assignee for the benefit of creditors under the Kentucky statute, by which the relations of such assignee are very like those of an administrator, may maintain an action to recover back twice the amount of illegal interest paid to a national bank, whether such payments are regarded as having been made by himself or by his assignor. Louisville Trust Co. v. Kentucky Nat. Bank, 87 Fed. 143. sequent hearing in this case, in 102 Fed. 442, before another district judge, such judge, while holding that such action might be maintained by the assignee as the "legal representative" of the assignor, stated that he did so merely be cause of the holding of the judge on the prior hearing, and that he was inclined to think that if the proposition were open he should hold that the assignee was not the "representative of the assignor." of view. They cannot affect the case. Where a statute creates a new right or of fense, and provides a specific remedy or punishment, they alone apply. Such provisions are exclusive. Farmers' & M. Nat. Bank v. Dearing, 91 U. S. 29, 23 L. ed. 196. In the first defense the payment of usurious interest is distinctly averred, and it is sought to apply it by way of offset or payment to the bill of exchange in suit. In our analysis of the statute, we have seen that this could not be done. Nothing more need be said upon the subject." In Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658, the notes sued on were the last of a series of renewals which had been regularly discounted by the bank; interest being paid on all of them at the rate of 8 or 10 per cent. The defendant sought credit on the note for usury. The But Osborn v. First Nat. Bank, 175 Pa. 494, 34 Atl. 858, holds that an assignee for the benefit of creditors under an assignment voluntarily made cannot recover from a national bank twice the amount of usurious interest paid by the assignor under U. S. Rev. Stat. § 5198, authorizing such recovery by the party paying the illegal interest or his "legal representatives," as in Pennsylvania the term "legal representatives" means executors and administrators. The court says in this case that no decision has been cited showing that the meaning of the term "legal representatives" has been fixed by the United States Supreme Court, but, on the contrary, it is held that the question of the parties meant to be designated thereby is one of procedure according to the law of the place where suit is brought. The court also distinguishes this case from Monongahela Nat. Bank v. Overholt, 96 Pa. 327, which held that an assignee in bankruptcy might maintain such an action. According to the weight of authority an assignee in bankruptcy may maintain such an action. Thus, the assignee in bankruptcy of one who has paid illegal interest to a national bank may, as his "legal representative," bring an action to recover back twice the amount of interest paid. National Bank v. Trimble, 40 Ohio St. 629; Crocker v. First Nat. Bank, 4 Dill. 358, Fed. Cas. No. 3,397: Markson v. First Nat. Bank, 9 Chicago Legal News, 108, Fed. Cas. No. 9,097; Wright v. First Nat. Bank, 8 Biss. 243, Fed. Cas. No. 18,078. And one who has paid illegal interest to a national bank cannot maintain an action to recover back twice the amount of the illegal interest paid, after an assignment in bankruptcy by him, as the right to maintain such an action passes to, and vests in, the assignee in bankruptcy. Monongahela Nat. Bank v. Overholt, 96 Pa. 327. But in Osborn v. First Nat. Bank, 175 Pa. 494, 34 Atl. 858, which held that an assignee for creditors could not maintain such an action, the court stated that it might be necessary to reconsider its decision in the preceding case if the question of the right of an assignee in bankruptcy to maintain such an action should again come before it. And Barnits v. First Nat. Bank, Fed. Cas. No. 1,034, holds that an assignee in bankruptcy cannot maintain an action to recover back twice the amount of illegal interest paid to a national bank by his assignor under the national banking act, § 30, on the ground that he Es his "legal representative." defense was held bad on the authority of the above case. In Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336, 337, the facts and the plea were substantially the same, and the answer was again held bad. The court, referring to the previous decision, said: “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. . . The forfeiture and the remedy are creatures of the same statute, and must stand or fall together." These cases are not only distinguished in the McBroom Case, but are again referred to in Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. ed. 801, One of the joint makers of a note cannot maintain an action against the bank for twice the amount of illegal interest paid by another of such makers. Thus, Timberlake v. First Nat. Bank, 43 Fed. 231, holds that one of two joint makers of a note cannot recover double the amount of usurious interest paid by the other maker, under U. S. Rev. Stat. § 5198, conferring the right to recover such penalty on the party paying the illegal interest, or his legal representatives. And where one of two joint makers of a note to a national bank pays out of his own money usurious interest charged on such note, although at the request of the other maker, the latter cannot maintain an action against the bank to recover twice the amount of the interest paid. First Nat. Bank v. Rowley, 52 Kan. 394, 34 Pac. 1049. And where two persons executed their joint note in favor of a national bank, which note is claimed to be wholly for usury charged by the bank upon another note, one of such makers cannot, as executrix of the other maker, recover from the bank twice the amount of the interest paid, where no payment was made on either note before the death of her testator, and she has paid, since qualifying as executrix, less than the principal borrowed from the bank, the additional payments, including the payment of the note given for usury, having been made by her in her individual capacity before qualifying as executrix, as under U. S. Rev. Stat. § 5198, the right to recover the penalty is confined to the person by whom the greater rate of interest "has been paid," or his legal representatives. Lealos v. Union Nat. Bank, 9 N. D. 60, 81 N. W. 56. And any claim which one of two joint makers of a note to a national bank may have set up to a penalty growing out of illegal discounts by it does not affect the right of the other maker to recover twice the amount of illegal interest paid to the bank, where the latter was the beneficial owner of such notes, and they were disFirst Nat. counted for him alone by the bank. Bank v. Gruber, 91 Pa. 377. And a joint action cannot be maintained against a national bank by the joint makers of a note to recover twice the aggregate amount of usurious interest paid by them, under U. S. Rev. Stat. § 5198, as only the one who makes the payment, or his legal representatives, can recover. Teague v. First Nat. Bank, 5 Kan. App. 300. 48 Pac. 603. But a partnership, as well as an individual. may recover from a national bank twice the amount of usurious interest paid by it to such 18 Sup. Ct. Rep. 390. What are the facts which the new note was given. It is well of this case, to which these principles are known that banks collect interest in adto be applied? On January 29, 1895, For-vance. This is the uniform way of doing man borrowed of the bank $3,117.84, and the business, and, without clear proof to the executed his note to it, due in six months, contrary, it must be presumed that the parfor $3,250; the interest on the loan for six ties in this transaction conformed to the months, at 8 per cent, being included in the universal mode of doing business. If Forface of the note. When this note fell due man had walked into the bank on Septemit was not paid, and on September 4, 1895, ber 4th and said, "I cannot pay you all of the note, with its accrued interest, amount- my note, but will pay the interest and all ing to $3,273.85, as figured up by the bank, of the principal, except $2,431.66, and for was charged to Forman's account. He did that will execute a new note," the effect of not wish, or was not able, to pay the entire the transaction would have been just the debt at that time, by $2,431.66, so a note same; for what is tacitly understood need was drawn, due in four months; the interest never be expressed in words, and, where men for the time being included in the face of by their conduct unmistakably say a thing, the note, making the amount of the note it is unnecessary that they should also go $2,500. In this transaction Forman plain- through the idle form of saying it in words. ly paid all of his debt of $3,273.85, then The interest that was included in the origiclaimed by the bank, except $2,431.66, for nal note was charged, but not paid, when bank, under U. S. Rev. Stat. § 5198, providing the latter could not set off or claim credit for that where illegal interest has been paid to such double the amount of illegal interest paid by a bank the "person" by whom it has been paid, the maker to such bank. or his legal representatives, may recover back twice the amount of the interest thus paid. Albion Nat. Bank v. Montgomery, 54 Neb. 681, 74 N. W. 1102. e. Assignability of claim for penalty. A cause of action against a national bank for usurious interest paid to it is not assignable. Lloyd v. First Nat. Bank, 5 Kan. App. 512, 47 Pac. 575. A debtor who has paid usurious interest to a national bank cannot transfer, by an ordinary sale or assignment, the right given by U. S. Rev. Stat. § 5198, to recover twice the amount of illegal interest paid, as such statute only gives the right of recovery to the one paying the illegal interest, or his legal representatives. Pardoe v. Iowa State Nat. Bank, 106 Iowa, 345, 76 N. W. 800. And in an action by a national bank on a note, an affidavit of defense stating that such note was given in renewal, continuance, and settlement of loans and discounts to a specified company, for which defendant was an accommodation indorser, and that during the time of all such renewals the bank had taken illegal interest from such company, does not state a defense, as the right of action for usurious interest paid was in the company, instead of such indorser. Lucas v. Government Nat. Bank, 78 Pa. 228, 21 Am. Rep. 17. And Barnett v. Muncie Nat. Bank, Fed. Cas. No. 1,026, holds that the indorser of a bill of exchange cannot set up, as a defense in an action thereon by a national bank, that the makers were entitled to recover from the bank twice the amount of illegal interest paid thereto by them, as the national banking act, § 30, confers the right to recover such amount on the person who has paid the illegal interest, or his "legal representatives." On proceedings in error in the United States Supreme Court, 98 U. f. Who may set up defense of illegal interest S. 555, 25 L. ed. 212, the court held that where See also Lloyd v. First Nat. Bank, 5 Kan. App. 512, 47 Pac. 575, infra, III. h. 3. paid. It has been decided by the highest court, and accepted by all others, that where illegal interest has been actually paid to a national bank such payment cannot be relied on in an action by the bank, either by way of set-off or payment, so that the cases in this subdivision are valuable only as showing whom the courts, while they held such a defense to be available, regarded as entitled to rely thereon. In Barnett v. Muncie Nat. Bank, Fed. Cas. No. 1,026, the court held that an assignee in bankruptcy could not, in an action by the bank on a bill of exchange on which illegal interest had been charged, set up the right to recover back twice the amount of such interest, by way of defense. And on error proceedings in the United States Supreme Court, 98 U. S. 555, 25 L. ed. 212, the court held that the only remedy under the national banking act, § 30, where illegal interest has been paid to a national bank, is a suit brought specially and exclusively for the purpose of recovering twice the amount of interest so paid, nothing being said as to the right of the assignee in bankruptcy to maintain such an action as the "legal representative" of his assignor. illegal interest has been paid to a national bank the right to recover back twice the amount of such payment cannot be relied on as a defense, as the only remedy under § 30, in sively for the purpose of recovering double the such case, is a suit brought specially and excluamount of illegal interest paid, the court saying nothing as to the right of the indorser to sentative" of the makers who paid such intermaintain such an action as the "legal repre est. But National Bank v. Lewis, 75 N. Y. 516, 31 Am. Rep. 484, Reversing 10 Hun, 468, holds that an accommodation indorser without consideration is entitled, under U. S. Rev. Stat. § 5198, to the same benefit as the makers, by the way of set-off or rebatement of usurious interest paid on notes discounted by a national bank, the court stating that the person by whom the usury was paid, or his legal representative, might well be regarded as including the in dorser. On a reargument, however, 81 N. Y. 15, the court held that, where the interest had been paid, the amount so paid could not be relied on by way of set-off or counterclaim in an action by the bank on the note discounted, but the only remedy was by an action of debt to recover back twice the amount paid. In Brown v. Second Nat. Bank, 72 Pa. 209, the trial court, whose decision was affirmed by A surety cannot set off, in an action by a the supreme court, held that in an action by a national bank, the amount of illegal interest national bank against the indorser of a note 'actually paid, as such remedy is not available 24, 1896, when, with its accrued interest since maturity, it amounted to $2,026.22. Forman then made to the bank a note for $2,000, the principal of which was $1,958.67, and interest up to maturity, $41.33. How the court can say that no interest was paid in this transaction is hard to comprehend. A note was due, which, with its accrued interest, amounted to over $2,000, and a new note was given for $2,000, which bore no interest until its maturity. What had become of the balance of the debt? The bank had not lost it. The amount had been charged to Forman's account. It represent that note was given. It was paid, however, | paid at maturity, and ran until September when that note was discharged and taken up, and a new note for a smaller amount executed. For, as expressly held by the Supreme Court in the three cases above referred to, the new note was not infected by the usury in the previous transaction. The new note was usurious only to the extent of the current interest at 8 per cent up to maturity which was included in it, and a right of action then existed to recover for the usury that day paid on the old note. The $2,500 note ran until January 29, 1896; $500 having been credited on it on January 7th. On January 29th the remainder of the debt was paid by charging it to the ac-ed the interest on this money, and, if this count of Forman as before, and the execution of a new note, the principal of which was $1,918.67, and interest up to maturity, $81.33; making, $2,000. This note was not to the principal, the remedy by recovery back, allowed by the national banking act in such case, being exclusive of all others. Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336, Affirming 88 Pa. 157, 32 Am. Rep. 438. And a surety on a note to a national bank on which illegal interest has been charged is not entitled to credit for amounts of usurious interest paid by his principal on successive renewals of the note, where such principal, or his personal representative after his death, would be barred from recovering the penalty fixed by U. S. Rev. Stat. § 5198, of twice the amount of illegal interest paid, by a judgment against the principal in an action brought by him to recover such penalty. Faulkner v. Marion Nat. Bank, 19 Ky. L. Rep. 1268, 43 S. W. 249. The makers of a note cannot set up as a defense, in an action thereon by a national bank which discounted it for the payees, that illegal interest had been charged by the bank and paid by such payees on the discounting of the note, as under the national banking act, § 30, only those persons who pay the illegal interest, or their legal representatives, can recover it. Second Nat. Bank v. Morgan, 165 Pa. 199, 30 Atl. 957. was not a payment of interest, how can 1. Of illegal interest paid. Where illegal interest has been actually paid First Nat. Bank, 46 Neb. 663, 65 N. W. 786: First Nat. Bank (Tex. Civ. App.) 39 S. W. 655. And neither by set-off nor by original action can interest over the legal rate paid to a national bank be recovered, except by way of 1864, as the remedy prescribed thereby is exclusive of all others. First Nat. Bank v. Gruber, 91 Pa. 377. And National State Bank v. Boylan, 2 Abb. N. C. 216, holds that one of two joint defend-penalty as prescribed by the act of June 3, ants sued by a national bank cannot set up as a counterclaim usurious payments of interest to the bank, unless a several judgment could be rendered against him under the pleadings. For effect of charging or payment of usury to release a surety or guarantor from liability, see supra, I. f. And in National State Bank v. Boylan, 2 Abb. N. C. 216, the court says that where a borrower from a national bank voluntarily pays illegal interest his only remedy is by the action provided by the Federal statute, to be brought within two years from the time of g. Against whom defense of usury paid, avail- payment. able. Hade v. McVay, 31 Ohio St. 231, holds that If the right to recover back from a national bank twice the amount of illegal interest paid to it was available as a set-off in an action by the bank it would be available in an action by the receiver of such bank. But Childs v. Alexander, 22 S. C. 169, holds that where usurious interest has been paid to a national bank the defense of usury cannot be set up against an assignee of the bank. It must be borne in mind, however, that the courts now hold that where usurious interest has been actually paid, such payment is not available as a defense, but only in a separate action to recover the penalty of twice the amount of interest paid. And a state statute authorizing the application of usurious payments of interest to the principal, does not apply to national banks, as the provision of U. S. Rev. Stat. § 5198. usurious interest paid is exclusive. Lanham v. First Nat. Bank, 46 Neb. 663, 65 N. W. 786. for the recovery back of twice the amount of And the fact that a national bank has received a higher rate of interest than that provided for by law must, under U. S. Rev. Stat. § 5198, be clearly made out in a proceeding to recover twice the amount of the illegal interest paid, and is not available as a defense in a suit in equity by the bank or its receiver tocollect the debt. Cox v. Beck, 83 Fed. 269. And the only effect, under U. S. Rev. Stat. § 5198, of usurious payments of interest to a national bank on a note given to it, so far as the right of the bank to recover on the note is The principal of the debt on January 29, 1896, was $1,918.67. After the payment of September 26, 1896, was made, the balance of the debt was $1,958.67; and if this money was not paid on interest, or was not interest collected by the bank, what did it represent? An act of Congress should not be so dealt with as to make it a vain thing, and deny it fair or reasonable effect. The purpose of the statute was not to protect national banks in the exaction of usury, but to deter them from charging more than legal interest. There is no remedy except by action under the statute, and this action, by its express terms, must be brought "within two years from the time the usurious transaction occurred." Each usurious transaction is distinct, and must stand or fall alone. The purpose in limiting the action to two years from the time of each sepconcerned, is to destroy its interest-bearing ca- | pacity, and such statute does not authorize the application, in such an action, of the amount of the interest so paid, on the principal of the note. First Nat. Bank v. Childs, 133 Mass. 248, 43 Am. Rep. 509. And Farmers' Nat. Gold Bank v. Stover, 60 Cal. 387, holds that where a national bank knowingly takes and is paid an illegal rate of interest such payment is not available as a defense in an action by the bank, either by way of set-off or payment of the note sued on. And Rockwell v. Farmers Nat. Bank, 4 Colo. App. 562, 36 Pac. 905, holds that, in a suit by a national bank on a note, the borrower cannot have illegal interest paid by him applied to the reduction of the principal sum due on the note, as a counterclaim setting up the payment of such interest is not a proper method of defense. And when a note has been given to a natlonal bank, payable ninety days after date, on which usurious interest has been charged and received in advance, the one paying such interest cannot recoup the same in an action by the bank on the note. Wiley v. Starbuck, 44 Ind. 298. And where illegal interest has been paid to a national bank in what is the equivalent of money, the amount of such interest cannot be used by way of set-off or payment in a suit by the bank on the bill, note, or draft on which the usurious interest was paid. Danforth v. National State Bank, 17 L. R. A. 622, 1 C. C. A. 62, 3 U. S. App. 7, 48 Fed. 271. And in Gadsden v. Thrush, 56 Neb. 565, 76 N. W. 1060, the court says that it is now firm ly established that as against a national bank the remedies allowed by the act of Congress in case of usury are exclusive, and that payments of usurious interest may not be set off in an action for the debt. And the amount of Interest paid to a national bank on a usurious loan of money cannot be applied as a payment on the note given for the sum lent, in an action to recover the principal sum, although the state statute authorizes such application. Norfolk Nat. Bank v. Schwenk, 46 Neb. 381, 64 N. W. 1073. And Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336, Affirming 88 Pa. 157, 32 Am. Rep. 438, holds that where illegal interest has been actually paid to a national bank the amount so paid cannot be set off by a surety in an action on the note. And usurious interest paid to such a bank on the renewals of a series of notes cannot be arate transaction complained of is to secure a speedy settlement of such matters while the facts are fresh or capable of proof, and to enable the banks to know their liabilities, so that they may intelligently declare dividends and carry on their other business. Whether usurious interest has been paid in any transaction is simply a question of fact, to be determined, like other similar questions of fact, according to the real intention of the parties as shown by the evidence. The court is not to follow an abstract principle, and shut its eyes to the facts, when, under the evidence, there can be no difference of opinion as to what the parties actually intended, among men of common intelligence acquainted with the business. Where there was a debt of $1,918, and, after some months, without a new consideration, the debt was $1,958, can anyone doubt that the applied by way of set-off or payment in a suit by the bank on one of such notes. Driesbach v. Second Nat. Bank, 104 U. S. 52, 26 L. ed. 658, 3 Browne Nat. Bank Cas. 19; Farmers & M. Bank v. Hoagland, 7 Fed. 159; Marion Nat. Bank v. Thompson, 101 Ky. 277, 40 S. W. 903; Faulkner v. Marion Nat. Bank, 19 Ky. L. Rep. 1268, 43 S. W. 249; Oldham v. First Nat. Bank, 85 N. C. 240; First Nat. Bank v. Segel, 21 Pa. Co. Ct. 113; National Exch. Bank v. Boylen, 26 W. Va. 554, 53 Am. Rep. 113; Charleston Nat. Bank v. Bradford (W. Va.) 41 S. E. 153. And National Bank v. Lewis, 81 N. Y. 15, holds that, in a suit by a national bank on the last of a series of renewal notes discounted by it at usurious rates of interest, the defendant cannot, under U. S. Rev. Stat. § 5198, set off against the amount of the note usurious interest paid on the original transactions and on the renewals, although a state statute permits such set-off, as the remedy of an action to recover back twice the amount of the interest, where it has been actually paid, is exclusive, and the question of the right to set off such payments as a counterclaim or rebatement cannot be considered as one of practice under the state laws. And in an action by a national bank on a note given to it, the defendants cannot set off usurious interest paid in cash upon renewal of such note and of others of which it was a consolidation. Haseltine v. Central Nat. Bank, 183 U. S. 132, 46 L. ed. 118, 22 Sup. Ct. Rep. 50, Affirming 155 Mo. 58, 55 S. W. 1015. And payments of illegal interest to a national bank on the renewal of a note on which usurious interest had been charged cannot, in an action by the bank on the note, be treated as payments on the principal debt, as, even though the receipt of such payments exposed the bank to a penal action if it had been seasonably brought within two years, under U. S. Rev. Stat. § 5198, it could not be compelled to apply money thus received as interest to a purpose uot contemplated by either party at the time the payments were made. First Nat. Bank v. Childs, 133 Mass. 248, 43 Am. Rep. 509. And usurious interest previously received by a national bank, though taken in the renewal of a series of bills of which the one in suit is the last, cannot be pleaded by way of set-off, as the only remedy is by an action of debt founded on the penal clause of the act of Congress of June 3, 1864, § 30, and the forfeiture of the interest only occurs where the illegal interest has been stipulated for, but not paid. National Bank v. Dushane, 96 Pa. 340. The |