In order that a contract or debt should be avoided as usurious, it is necessary that it should itself be tainted with this offence; for if any subsequent contract in payment of the first be usurious, this second contract will be void, and will therefore leave the original contract or debt wholly unpaid, and it may be enforced as if the second had not been made, (q) 2 Thus, if * one,

(pp) Smith v. Robinson, 10 Allen, 130.

(pq) Ewing v. Howard, 7 Wallace, 499.

(pr) First Nat. Bank of Whitehall v. Lamb, 57 Barb. 429.

(q) Radley v. Manning, 3 Keble, 142, pl. 13. "In debt upon an obligation, upon oyer, the condition was to pay by a certain day. The defendant pleaded the statute, 12 Car. II., and said that the who, as joint surety, has paid the whole of a debt, and so acquired a claim for contribution for one-half, settles this claim by receiving a note with usurious interest, this note cannot be collected, but the original claim for contribution revives, and may be enforced, (r) So an agreement to pay more than interest, by way of penalty for not paying the debt, is not usurious, because the debtor may relieve himself by paying the debt with lawful interest; and, even if he incurs the penalty, this may be reduced to the actual debt (s) And if money be * due, and the contract was usurious; but per curiam, being made after the bond forfeited to receive interest, according to the penalty, which was doable the principal, it doth not void the obligation that was good at first, but only subjects the taker to other penalties, and judgment for the plaintiff." In Anonymous, 1 Bulst. 17, T. N. executed to J. P. a bond for £66, 6d. principal, and £6 legal interest, payable in one year. Within the year the obligor paid the £6 interest, and afterwards, an action being brought for the non-payment of the principal, the obligor pleaded the statute of usury, because the obligee took the use money within the year. "It was resolved by the whole conrt, that his taking of the use money within the year shall not avoid the obligation, and that this taking is no usury within the statute." Williams, J.. " Where the first contract is not usurious, this shall never be made usury, within the statute, by matter ex poet facto; as if one contract with another to borrow £100 for a year, and to give him £10 for interest, at the end of the year, if he pays the interest within the year, this is not usury within the statute to avoid the obligation, or to give a forfeiture of the money within the statute, because that this contract was not usurious at the beginning; which was agreed by the whole court, and judgment given for the plaintiff." In Pollard p. Scholy, Cro. Eliz. 20, Pollard sold defendant two oxen, for six pounds six shillings and eight pence, to be paid at All-Saints next, and on the same day the defendant required longer day of payment, upon which Pollard gave him till the first of May next, receiving therefor three quarters of wheat, which was above the value of ten pounds per cent. upon the debt. In debt for the price of the oxen, usury was set up as a defence. The opinion of the justices was. that the last contract was void, but the first good, being made bona fide. Ferrall p. Shaen, I Saund. 294, was debt upon a bond for payment of £300, to which the defendant pleaded that the plaintiff had received £30 for delaying the day of payment of the bond one year, which was usurious. The court adjudged the plea not good, for here the bond was good when it was made, and then a usurious contract afterwards cannot make it void, although the penalty for usury was incurred. In Nichols p. Lee, 3 Anstr. 940, where, to debt upon a bond, the plea was, that after the execution of the bond the plaintiff received from the defendant more than lawful interest, Macdonald, C. B., said: "There is nothing more settled than this point to avoid a security as usurious, you must show that the agreement was illegal from its origin." The same principle is established in the following cases: Ballard v. Oddey, 2 Mod. 307; Parr v. Eliason, 1 East, 92, Rex p. Allen, T. Raym. 196; Parker v. Rams-bottom, 3 B. & C. 257; supra, n. (/); Phillips v. Cockayne, 3 Camp. 119; Gray p. Fowler, 1 H. Bl. 462; Daniel v. Car-tony, 1 Esp. 274; Buller, J., Tate p. Wel-lings, 3 T. R. 531; Bash p. Livingston, 2 Caines, Cas. 66; Nichols p. Fearson, 7 Pet. 107; Pollard p. Baylors, 6 Munf. 433; Roane, J., Pollard v."Baylor, 4 Hen.

1 Interest received by a national bank on a note greater than that allowable in the State where it is made, in violation of the statute, cannot be set off, in an action thereon by the bank against the amount due thereon; but the bank is entitled to recover only the face of the note without interest. Peterborough Bank v. Childs, 133 Mass. 248; Barnet v. National Bank, 98 U. S. 555; Auburn Bank v. Lewis, 81 N. Y. 15; Clarion Bank v. Gruber, 91 Pa 377. Usurious interest paid to a national bank on renewing a series of notes cannot, in an action by the bank on the last note, be applied in satisfaction of the principal of the debt. Driesbach v. National Bank, 104 U. S. 52; Barnet v. National Bank, 98 U. S. 555. Where a national bank receives interest on a note greater than is allowable by the laws of the State where made, the forfeiture provided may be availed of in defence of an action thereon by the bank in a State court, and other than in the State where the note was discounted; and such defence is not limited to two years thereafter. Peterborough Bank v. Childs, 130 Mass. 519. That a national bank, having discounted a note, reserving a usurious rate of interest, for which the borrower gives a new note in renewal at legal interest, may recover the amount of the renewal note with interest, less the usury on the original discount, credited as of that date, see Madison Bank v. Davis, 8 Bissell, 100. A national bank's demand and receipt of usurious interest on notes discounted by it will not avoid a written guaranty for the payment of the notes. Lazear v. Union dank, 52 Md. 78. - K.

2 Thus an obligation valid in its inception is not invalidated by a usurious agreement for the extension of the time of payment; but the sum paid on the agreement for forbearance will in equity be applied as payment. Heal Estate Co. p. Keech, 69 N. Y. 248. A note given after the abolition of usury laws for money actually lent, at a rate of interest usurious at the time it was borrowed, is valid, Houser v. Planters' Bank, 57 Ga.95. - K.

& M. 232; Merrills v. Law, 9 Cowen, 65; Hughes v. Wheeler, 8 Cowen, 77; Rice p. Welling, 5 Wend. 597; Swartwout p. Payne, 19 Johns. 294; Craine p. Hubbel,

7 Paige, 417; Brown p. Dewey, 1 Sandf. Ch. 56; Johnson, J., in Gaither p. Farmers and Mechanics Bank, 1 Pet. 43; Gardner v. Flagg, 8 Mass. 101; Parker, C. J., Frye p. Barker, 1 Pick. 267; Edgell p. Stanford, 6 Vt. 551; Hammond v. Smith, 17 Vt. 231; Sloan p. Sommers, 2 Green (N. J.), 509; Ruffin, J., Collier p. Nevil, 3 Dev. 32; Indianapolis Ins. Co. p. Brown, 6 Blackf. 378; Varick p. Crane, 3 Green, Ch. 128: Brown p. Toell, 5 Rand. 543. See also Abrahams p. Bunn, 4 Burr. 2253; M'Craney p. Alden, 46 Barb. 272.

(r) Johnson p. Johnson, 11 Mass. 359.

(s) Burton's case, 5 Rep. 69; Vin. Abr. Usury, C.: " If a man obliges himself in nine marks to pay at a certain day, and that if he does not pay at the day, he obliges himself by the same deed creditor, at the request of the debtor, agrees to give him time, on condition that the debtor shall continue to pay legal interest, and also such further interest as the creditor may be obliged to pay for money to be raised by him to take the place of the money due from the debtor, such agreement is not usurious; and if the debtor pay such extra interest, he cannot recover it back as a usurious payment, (t) Nor will the taking of usurious interest imply conclusively a prior agreement to take; as if a bond be given for principal and lawful interest, if usurious interest be taken afterwards, this does not prove conclusively that such was the secret original agreement, (u) although it is prima facie evidence, (v) But by some authorities the presumption is only of an intentional new usurious contract at the time of payment (w) to pay to him seventeen marks; this is not usury, but it is only a pain. 26 E. 3, 71." In Roberts p. Trenayne, Cro. Jac 607, Doderidge, J., took this difference in cases of casual usury: "If I secure both interest and principal, if it be at the will of the party who is to pay it, it is no usury; as if I lend to one a hundred pounds for two years, to pay for the loan thereof thirty pounds, and if he pay the principal at the year's end, he shall pay nothing for interest, this is not usury, for the party hath his election; and may pay it at the first year's end, and so discharge himself." In Garrett v. Foote, Comb. 133, Holt said- "If I covenant to pay £100 a year hence, and, if I do not pay it, to pay £20, it is not usury, but only in the nature of a nomine paenae" In Groves v. Graves, 1 Wash. (Va.) I, there was an agreement for the payment of a debt, by the delivery of certificates of "Pierces final settlements,"at the rate of twenty shillings for every twenty-six pence of the money advanced, and if the debt was not paid at a certain time, that the certificates should be paid at the rate of twenty shillings for every thirteen pence. The President held, that the agreement to pay certificates at half their value was a penalty only, and the contract therefore not usurious. In Winslow v. Dawson, 1 Wash. (Va ) 118, a debt for £200 being due, two bonds were executed, one for £100, the other for £150, at a certain time, to which latter bond a memorandum was affixed, that it might be discharged by the payment of £100, if paid at an earlier date than the time mentioned in the condition. The contract was held not usurious. The President said: "The case of Groves v. Graves, in this court, has decided this principle, viz.: that such a contract, to pay a larger sum at a future day is not usurious, but that the increased sum shall be considered as a penalty against which a court of equity ought to relieve, upon compensation being made." See also Cutler v. How, 8 Mass. 257; Pollard v. Baylors, 6 Munf. 433; Roane, J., Pollard v. Baylor, 4 Hen. & M. 232; Brock v. Thompson, 1 Bailey, 322; Campbell v. Shields, 6 Leigh, 517; Fleming, J., Call v. Scott, 4 Call, 409; Moore v. Hylton, 1 Dev. Eq. 429; Brockway v. Clark, 6 Ham. 45; Wight v. Shuck, I Morris, 425; Shuck v. Wight, 1 Greene (la.), 128; Gambril v. Rose, 8 Blackf. 140; Lawrence v. Cowles, 13 111. 577; Thompson v. Jones,

1 Stewart, 564; Long v. Storie, 9 Hare, 142, 10 Eng. L. & Eq. 182; Floyer v. Edwards, Cowp. 112.

(t) Kimball v. Proprietors of Boston Athenaeum, 3 Gray, 225. The main ground of the decision was, that the gist of all the usury laws, from 1641 to 1846, is the taking of unlawful profits; whereas here there is no taking of any profit by the creditor, who is, in fact, the agent of the debtor for raising the money.

(u) Fussil v. Brookes, 2 Car. & P. 318; Hammond v. Smith, 17 Vt. 231.

(v) Ferrall v. Shaen, 1 Saund. 295, note; New York Firemen's Ins. Co. v. Ely, 2 Cowen, 705; Cummins v. Wise,

2 Halstead's Ch. 73; Varick v. Crane,

3 Green, Ch. 128; Quarles v. Brannon, 5 Strobh. 151.

(w) Hammond v. Smith, 16 Vt. 231.