Page:Federal Reporter, 1st Series, Volume 1.djvu/197

FIRST NATIONAL BANK V. STAUFFJBB. 189 �court say : "Two categories are thus defined, and the conse- quences denounced: �"1. Where illegal interest has been knowingly stipulated for, but not paid, then only the sum lent, without interest, can be recovered. �"2. Where such illegal interest bas 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 offend- ing bank. •****" �It is thus declared that the effect of a mere stipulation for illegal interest by a national bank is to deprive it of the right to recover more than "the sum lent, without interest;" but surely the "receiving" of illegal interest in furtherance of a stipulation to that effect cannot place the bank upon any better footing. It will undoubtedly preclude the recovery, by the debtor, of the penalty for an usurious payment, by way of set-off against his debt, but it cannot invest the crediter with a right to recover what the law declares he shall forfeit by reason of his unlawful agreement. �In this case it was agreed that usurious interest should be paid, and was paid, to the plaintiff, and the jury should have been instructed that this worked a forfeiture of ail the interest upon the note, aud that the plaintiff was entitled to recover only its face amount. A new trial will, therefore, be ordered, unless the plaintiff, within ten days, shall remit the excess of the amount found by the jury on the principal of the debt. Upon the entry of such remitter judgment will be entered on the verdict for the amount so rendered. ��� �