This was an action to recover the penalties for usury under section 5198, Rev. St. U.S. (U.S. Comp. St. 1913, sec, 9759), instituted originally in a justice court and, after judgment there, *Page 311 tried de novo upon appeal to the district court.
The bill of particulars filed by plaintiff contains no allegation that the alleged usury was knowingly charged or received, or any allegation of equivalent import. There was a general demurrer to this bill of particulars, which was overruled and exceptions saved. Upon the trial the court's instructions contained no reference to the fact that usury by a national bank must be knowingly received or charged in order to justify a recovery under the statute. To these instructions defendant duly excepted. Defendant then offered an instruction containing this element, which was refused and exceptions saved. Each of these rulings was clearly error. The cause of action is statutory, and one of the necessary elements of a recovery is that the "taking, receiving, reserving or charging" of the usury shall be "knowingly done." If the petition failed to so allege, it was fatally defective, and, if alleged therein, the defendant had a right, under the statute, to have this question submitted to the jury. First National Bank of Mill Creek v. Ellis,
The cause should be reversed, with directions to the trial court to set aside the judgment and the order overruling the demurrer to the petition and to sustain said demurrer.
By the Court: It is so ordered.