National Bank v. Dushane ( 1881 )

Mr. Justice Gordon

delivered the opinion of the court, January 3d 1881.

This case, on the authority of the recent decision of the Supreme Court of the United States, Barnett v. The National Bank, 8 Otto 555, must be reversed. It was there held that usurious interest, previously received by a national bank,, though taken in the renewals of a series of bills of which the one in suit was the last, could not be pleaded by way of set-off, and that the only remedy was by an action of debt founded on the penal clause of the. Act of Congress. This case, of course, overrules Lucas v. The Bank, 28 P. F. Smith 228; Overholt v. The Bank, 1 Norris 490, and all cases of a similar character, at least so far as they hold that illegal interest taken by a national bank can be used by way of set-off or payment.

In a transaction like the one in hand, from the ease above cited, it will be found that the defendants’ only remedy was by a penal action for double the illegal interest paid, and that the forfeiture of the interest upon the note only occurs where illegal interest has been stipulated for but .not paid. It follows that the plaintiff should have been permitted to recover the full amount of the note in suit with interest.

Judgment reversed, and a new venire ordered.