This was a suit in the court below against the First National Bank of Clarion, to recover the penalty imposed by the act of congress for charging and receiving usurious interest on loans. The payment of usurious interest was proved to the satisfaction of the jury to the extent of $18, and they returned a verdict *582for double that amount. The plaintiff was not satisfied with this result, and claims that, but for certain errors in the rulings of the court below, he would have obtained a verdict for a much larger amount.
The ruling complained of in the first specification of error was justified by the case of Brown v. Second N. Bank, 72 Pa. 209, where it was held that “ it is actual payment on the foot of the usurious contract, either in part or in whole, which consummates the usury, and from which the limitation of the action for the penalty commences to run. ” If this were not so, and if the usury is complete by merely including it in a renewal note, the penalty might be recovered without the payment of either principal or interest. In the case in hand, the usury, with the exception of the small sum before mentioned, was included in renewal notes, which notes were finally merged into judgments and then paid. The court properly instructed the jury that the acceptance of the new notes in lieu of thé old notes was not payment in law of the latter, unless such’was the understanding and agreement of the parties. This is settled law: Oliphant v. Church, 19 Pa. 318; Reed v. Defebaugh, 24 Pa. 495; Heath v. Page, 48 Pa. 130. And the jury were properly told that the burden of proof was on the plaintiff to show that the defendant did agree to accept the renewal notes as payment. In Hopkins v. West, 83 Pa. 109, it was held that usurious interest, included in the amormt of a judgment confessed, cannot be recovered back after the judgment has been paid by the defendant in full. Under this authority, and others that might be named were it necessary, it is clear that, so far as the usury was included in the judgments, and paid on the foot thereof, it cannot be recovered back. It was not error to exclude the question put to the witness H. R. Wilson on cross-examination, (fifth specification.) It was irrelevant, and was properly excluded.
Judgment affirmed.