Sloan v. Gilbert. found against him, whereby he is virtually found guilty of a felony, upon a bare preponderance of evidence. (Wightman v. Western Marine and Fire Ins. Co., 8 Rob. La. 442; Hoffman v. Western Empire Ins. Co., 1 La. Ann. 216; Schmidt v. N. Y. U. F. Ins. Co., 1 Gray, 529; Washington Union Ins. Co. v. Wilson, 7 Wis. 169; Ætna Ins. Co. v. Johnson, &c., 11 Bush, 587.) In Kincade v. Bradshaw (3 Hawks, N. C. 63) the court held that "it could not be a correct rule that a jury should require the same strength of evidence to find a fact controverted in a civil case which they would require to find a man guilty of a crime." That was an action of slander, and the court reversed the judgment on the ground that the court below erred in charging the jury that the evidence, to warrant a verdict for the defendant, must be sufficient to convict the plaintiff, if on trial for perjury, the crime imputed in the alleged defamatory charge, and in the plea of justification. Barfield v. Britt (2 Jones L. 41) was an action of slander for accusing the plaintiff of the crime of murder, and the refusal of the court to give an instruction, that to sustain a plea of justification it was necessary that the jury should have the same cogency of proof they would require in case the plaintiff was on trial for his life, was sustained. Ellis v. Buzzell (60 Maine, 209) was an action for slandering the plaintiff by charging him with adultery. The defendant justified, and the Supreme Court held that he was entitled to a verdict upon a preponderance of evidence. The same doctrine was held in Matthews v. Huntley (9 N. H. 150) and in Folsom v. Brown (5 Foster, 122). Some of the cases intimate that actions in which the alleged slander consists in charging the plaintiff with perjury stand upon peculiar ground, because of the rule that in order to convict of that crime there must be two witnesses, or one witness and corroborating circumstances, to prove the falsity of the Newell, &c. v. National Bank of Somerset. plaintiff's testimony. But we perceive no ground for such a distinction. The plaintiff is now a competent witness, and may come before the jury and testify as to the truth of his former statement, and is thus enabled to present himself fairly before them; and he should have no recovery if, on all the evidence, the jury believe his former testimony was willfully and corruptly false, for in that case the defendant has, in estimation of law, done him no injury. We are therefore of the opinion that the court did not err in instructing the jury to find for the defendant if they should find that the justification was sustained by a preponderance of evidence. But for the errors indicated in the first part of this opinion the judgment is reversed, and the cause is remanded for a new trial upon principles not inconsistent with this opinion. Newell, &c. v. National Bank of Somerset. APPEALS FROM PULASKI CIRCUIT COURT. 1. THE DEDUCTION OF LEGAL INTEREST IN ADVANCE from the face of notes or bills discounted by banks is not usurious. (3 Parsons on Contracts, pp. 131, 132; 8 Wheaton, 354; 3 Peters, 40; 2 Cowan, 703.) 2. Ten per centum per annum in advance taken, deducted, or retained by a bank by way of discount since the passage of the act of March 14, 1871, or since the adoption of the General Statutes, is not usurious. It is not necessary under said statutes that there should be any contract in writing, other than the note or bill itself, to authorize the taking of the ten per cent in advance. Newell, &c. v. National Bank of Somerset. 3. Penalties arising under the laws of the United States are not enforced by the courts of this state. Charter of the Commercial Bank of Kentucky. Act of March 14, 1871, Session Acts, pp. 61, 62. Charter of the Commercial Bank of Kentucky. 22 Ohio, 508, Shunk v. First National Bank of Galion. 10 American Reports, 765. JOHN S. VAN WINKLE, CITED Bankers' Magazine (December, 1875), 466. General Statutes, 565. Morse on Banking, 16. 3 Statute Laws of Kentucky, 205. 1 Bouvier's Law Dictionary, 428. 1 Session Acts of 1871, page 62. 8 Wheaton, 354, Fleckner v. U. S. Bank. 3 Peters, 40, Thornton v. Bank of Washington. 3 McLean, 587, McLean v. Lafayette Bank. For Appellee, 1 Cranch's Cir. Ct. Rep. 552, Bank of Alexander v. Mandeville. 1 Dana, 84, Letcher v. Bank of Kentucky. 3 J. J. Mar. 682, Fowler v. Garrett. 13 U. S. Statutes at Large, 99. 22 Ohio St. 492, Bank of Columbus v. Garlinghouse. 11 Bush, 393, Smith v. Young, &c. 115 Mass. 539, Cent. Nat. Bank v. Pratt. JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT. J. R. and J. P. Ingram, with these appellants as sureties, commenced in 1872 to borrow money from the appellee. The notes were made payable to one or more of the accommodation Newell, &c. v. National Bank of Somerset. parties, and by him or them indorsed to the bank. They were made to run four months, and were from time to time renewed as they fell due. The bank, at the time of the discounting of the first notes and at each and every renewal, retained the interest in advance. The sums so retained were in proportion to ten per cent per annum upon the face of the notes. The notes last accepted in the way of renewals were not paid at maturity, and these actions were instituted to enforce their collection. The sureties pleaded the facts above set out, and insist that the bank, by retaining the said amounts of interest in advance, in effect charged and received interest at a rate greater than ten dollars upon one hundred dollars for a year, and that it thereby violated the 5th section of the act of March 14, 1871 (Session Acts 1871, page 61), and the 4th section of article 2, chapter 60, General Statutes, and forfeited to the borrowers the whole amount of interest paid. They further claim that it also violated the 30th section of the national currency act of June 3, 1864, and forfeited to the borrowers twice the amount of the interest paid. They sought to have their claims arising out of those supposed forfeitures set off against the notes sued on, and prayed to be credited by the amounts thus made up. We need not inquire as to the rights of the parties under the provisions of the act of congress. The forfeitures claimed under said act are highly penal in their nature. The courts of this state have not up to this time undertaken to enforce penalties arising under the laws of the government of the United States, and these cases present no sufficient reason to authorize the inauguration of a new judicial policy upon that subject. It is undoubtedly true that by retaining out of the sum loaned the full amount of the legal interest that would accrue thereon during the time for which the note is to run, banks are Newell, &c. v. National Bank of Somerset. enabled to realize upon their available capital a greater rate of interest than could be realized if the interest was not collected until the note became due; but the practice of thus discounting bills or notes began with the business of banking, and was soon so firmly established that the courts sanctioned it almost of necessity. (3 Parsons on Contracts, page 131.) This practice must be confined to short paper; and the instrument discounted, or upon which the interest is taken in advance, must be such as will circulate in the course of trade, or such as by statute has been placed upon the footing of that character of paper. (Ibid. 132; Firemen's Ins. Co. v. Ely, 2 Cowen, 703.) The deduction of legal interest from the face of the note or bill discounted has always been tolerated in this state; and it was long since held by the Supreme Court of the United States that transactions of that sort are not to be treated as usurious. (8 Wheaton, 354; 3 Peters, 40.) We find nothing in the legislation of this state upon the subject of interest and usury to take such transactions out of the general rule applied to them by the courts of the United States and of our various sister states. We therefore conclude that neither section 5 of the act of March 14, 1871, nor section 4, article 2, chapter 60, General Statutes, entitles appellants to recover the supposed forfeitures claimed in their several answers. But there is still another view of the case. It is not denied that interest, at the rate of ten per cent per annum, was collected in advance on each and all of the notes indorsed to the bank. By the laws of the commonwealth no more than six per cent interest can be lawfully collected for the loan or forbearance of money, unless it be upon contract, evidenced by a memorandum in writing signed by the party or parties chargeable thereon. (Acts 1871, page 61.) The General Statutes provide that the contract must be "by memorandum in writing |