The Act of 1864,5 commonly called the National Bank Act, imposes as a penalty for the taking of usurious interest by national banks the forfeiture of all interest, and in or tenders the principal and legal interest. See Sanner v. Smith, 1878, 89 111. 123; 31 Am. Rep. 70; Eiseman v. Gallagher, 1888, 24 Neb. 79; 37 N. W. 941.

1 Woolfolk v. Bird, 1876, 22 Minn. 341; Livingston v. Burton, 1891, 43 Mo. App. 272, (since changed by statute: see following note); Bank. V. Lutterloh, 1879, 81 N. C. 142; Quinlan v. Gordon, 1861, 20 Grant's Ch. (U. C. Ont.), Appendix i; Brundage v. Burke, 1895, 11 Wash. 679; 40 Pac. 343.

2 Nicrosi v. Walker, 1903, 139 Ala. 369; 37 So. 97; Harris v. Bressler, 1887, 119 111. 467; 10 N. E. 188; Smith v. Cooper, 1859, 9 la. 376; Flinn v. Mechanics Bldg. Assn., 1902, 93 Mo. App. 444; 67 S. W. 729, (by statute). In Smith v. Cooper, supra, the court said (p. 385): "But the language of the statute is, that no person shall directly or indirectly receive, in any manner, more interest than is therein prescribed. Now, if the plaintiffs recover (with the amount paid them on the same) the principal sum included in the note, will they not, by the action and judgment of the court, receive, not indirectly, but directly, usurious interest upon their contract - the very contract on which they rely for judgment?"

3 Carter v. Carusi, 1884, 112 U. S. 478; 5 S. Ct. 281, (Dist. of Col.); Carter v. Farthling, 1903, 115 Ky. 123; 72 S. W. 745; Cummings p. Knight, 1889, 65 N. H. 202; 23 Atl. 148; Wilson v. Selbie, 1895, 7 S. D. 494; 64 N. W. 537; Davis v. Converse, 1863, 35 Vt. 503 ; Crab-tree v. Old Dominion, etc., Assn., 1898, 95 Va. 670; 29 S. E. 741; 64 Am. St. Rep. 818.

4 Neale v. Rouse, 1892, 93 Ky. 151; 19 S. W. 171, (but see Carter v. Farthling, in preceding note); Smith v. Mason, 1897, (Tex. Civ. App.) 39 S. W. 188.

5 R. S. Sec. 5198.

case usurious interest has actually been paid, gives to the borrower the right to recover back twice the amount of interest thus paid from the association taking or receiving the same; provided, that such action is commenced within two years from the time the usurious transaction occurred.

The Supreme Court of the United States has held not only that the remedy provided the borrower by the statute is exclusive, but that in an action by a bank to collect the principal debt the borrower cannot set up by way of counterclaim or set-off that the bank has received usurious interest.1

1 Barnet v. Muncie Nat. Bank, 1878, 98 U. S. 555. The rule established by the Supreme Court has been enforced, in actions by national banks, by the State courts. See Peterborough Nat. Bank v. Childs, 1882, 133 Mass. 248; 43 Am. Rep. 509 ; Central Nat. Bank v. Haseltine, 1900, 155 Mo. 58; 55 S. W. 1015; 85 Am. St. Rep. 531, (aff. 183 U. S. 132 ; 22 S. Ct. 50); Nat. Bank v. Lewis, 1880, 81 N. Y. 15; Nat. Bank v. Dushane, 1880, 96 Pa. St. 340. But see Wachovia Nat. Bank v. Ireland, 1898, 122 N. C. 571; 29 S. E. 835. See 5 Fed. Stat. Anno. 133, for extensive collection of authorities.

The same rule was applied, in Caponigri v. Altieri, 1901, 165 N. Y. 255; 59 N. E. 87, to a case arising under a New York statute similar to the National Bank Act.