The national bank act is exclusive in its terms. It declares the whole interest void1 if it be not paid, and it allows a recovery of twice the excess or the whole interest2 paid where

Nat. Bank v. Miller, 73 Mo. 187; Cake v. Lebanon Nat. Bank, 86 Pa. 303.

1 Mills v. Bice. 6 Gray, 458; Bank of U. S. v. Owens, 2 Pet. 527, applies such a ruling to a case where there was no statute, but on that point the case is not sound.

2 Grand Gulf Bank v. Archer, 8 Smedes & M. 151; Hawley v. Kountze, 38 N. Y. Supp. 327.

3 Chafin v. Lincoln Sav. Bank, 7 Heisk. 499; Darby v. Boatmen's Sav. Inst, 1 Dill. 141; Veazie Bank v. Paulk, 40 Me. 109; Lumbermen's Bank v. Bearce, 41 Me. 505.

4 The effect of these statutes upon the contract is to forfeit the debt (Mills v. Rice, 6 Gray, 458); to forfeit the debt only as between borrower and lender, but not to annul the contract (Farmers' Bank v. Parker, 37 N. Y. 148); to render the note or bill void (Orr v. Lacey, 2 Doug. 230; Brower v. Haight. 18 Wis. 102); but to leave the loan good (Rock River Bank v. Sherwood, 10 Wis. 230; Van Atta v. State Bank, 8 Ohio St. 27). See Sec. 201, post.

1 See note 5, post.

2 The rule differs. Johnson v. National Bank, 74 N. Y. 329; affirmed in National Bank v. Johnson, 104 U. S. 271, without the point being raised, and other New York cases and Bo bo v. People's Nat. Bank, 92 Tenn. 444, say the recovery is twice the excess. But Wiley v. Star-buck, 44 Ind. 298; Crocker v. First Nat. Bank, 4 Dill. 358; Mark ham v. First Nat. Bank, Fed. Cas. No. 9097; National Bank v. Johnson, 91 Ky. 181; Lucas v. Government Nat. Bank, 78 Pa. 228, say twice the whole interest the transaction is complete. This statute governs national banks to the exclusion of state legislation,3 and. state penalties for usury do not apply.4 "Where the interest has not been paid, the interest is simply declared void and the bank can recover only the principal of the note.5 The statute applies to overdrafts as well as other loans,6 but the note itself is not rendered void7 nor the deposit of collateral security.8 The title to the note is not affected,9 nor its negotiability destroyed, by a usurious discount.10 A state statute cannot forfeit the debt,11 but a state statute may make the act of the officers of a national bank in taking usury an offense against the state.12 The two years' limitation in the statute applies to the suit to recover, but does not apply to the forfeiture of the usurious interest reserved,13 and the forfeiture may be set up at any time in defense of the note.14 The action provided for the recovery of usurious interest paid of the note by mistake do not operate as payment either as to the maker or as to the sureties.3 A person discounting paper at the bank warrants the genuineness of the signatures of the maker and the indorsers;4 and where the president of a bank discounted with another bank forged paper of his bank, depositing as security therewith, but without authority, certain bonds of his bank, the bank granting the discount may hold the bonds as security against the first bank.5 "Where the maker of a note which has two indorsements thereon, the first forged and the second genuine, discounts the note to a bank, the bank may hold the second indorser.6 But the bank must ascertain, where a partner attempts to discount for his private business a note indorsed by the firm, whether the note was so indorsed by special authority from the firm.7 The bank may sue in the payee's name for its benefit upon a transfer to itself by a forged indorsement of the payee's name, where the forgery was committed by one of the makers who made the transfer to the bank.8 The bank does not warrant to the acceptor of a draft discounted by it the genuineness of a bill of lading attached to the draft,9 and if the consignee pays drafts discounted by the bank in ignorance of the fact that the bills of lading attached to the draft were forged, he cannot recover from the bank.10 Banks under one statutory system were forbidden to assign their loans, and the objection was held to be pleadable only in abatement.11 The general rule as to loans made in contra-

3 Farmers' Bank v. Dearing, 91 U. S. 29.

4 First Nat. Bank v. Lamb, 57 Barb. 429 (wrongly reversed); Central Nat Bank v. Pratt, 115 Mass. 539; Imp. & Trad. Bank v. Littell, 46 N. J. Law, 506.

5 Farmers' Nat. Bank v. Dearing, 91 U. S. 29; Peterborough Nat. Bank v. Childs, 130 Mass. 519. If part is paid, the rest is forfeited. It forfeits the interest which would have accrued after maturity (First Nat. Bank v. Stauffer, 1 Fed. R. 187; Shunk v. First Nat Bank, 22 Ohio St 508), even though lawful. Shafer v. First Nat Bank, 53 Kan. 614; Nat State Bank v. Brainard, 61 Hun, 339.

6 Third Nat Bank v. Miller, 90 Pa. 241.

7 Nat. Ex. Bank v. Moore, 2 Bond, 170; Wiley v. Starbuck, 44 Ind. 298.

8 Oates v. Montgomery Nat Bank,

100 U. S. 239; Allen v. First Nat Bank, 23 Ohio St. 97.

9Newell v. First Nat Bank, 13 Ky. Law R. 775; First Nat Bank v. Garlinghouse, 22 Ohio St. 492; Hintermister v. First Nat Bank, 64 N. Y. 212.

10 Nicholson v. National Bank, 92 Ky. 251.

11 Farmers' Bank v. Dearing, 91 U. S. 29.

12 State v. First Nat Bank, 2 S. D. 568.

13 Peterborough Nat Bank v. Childs, 130 Mass. 519; Moniteau Nat. Bank v. Miller, 73 Mo. 187; Pickett v. Merchants' Nat Bank, 32 Ark. 346

14 See cases in last note, and see, further, Exeter Nat. Bank v. Orchard, 39 Neb. 485, holding that the making of a new note to the bank, where the original note was to another person, does not cut off the defense permits a recovery of twice the excess over the legal rate,15 or twice the whole interest paid.16 This remedy is exclusive and cannot be supplemented.17 The action is penal in its nature, and the double amount of the interest forfeited cannot be claimed by way of set-off or counter-claim.18 The two years' limitation begins to run either from the date of the payment of the usurious interest,19 or from the date of the transaction according to some insufficient authority.20 The bank cannot set off against the penalty sought to be recovered any claim of its own.21 Payments made are to be considered as paid on the face of the debt, not upon the interest.22