#### McKiel et al. vs. The Real Estate Bank.

The act of March 3d, 1838, authorizi s the Real Estate Bank to charge the same rate ' of interest as the State Bank, and is not repealed, as to the Real Estate Bank, by the act of December 10, 1838.

In a suit'by the Real Estate Bank, it i! not necessary to prove her corporate existence, on the general issue. The court judicially knows it.

In a suit against the make: of a note ptys.hlo at a particular place, it is not necessary to prove a demand at the place.

This was an action of debt, tried in the Phillips Circuit Court, iu December, 1841, before the Hon. Isaac Baker, one of the circuit judges. The Bank sued Josiah S. McKiel and his securities on two notes, one for f> 1800, due at six months from the 19th of December, 1839, and one for $2000, due at six mouths from the 21st day of November, 1839.

The defendants pleaded usiuy and the general issue of nil debet, not sworn to. Each plea of usury stated, that the note was given to the Bank to obtain a loan, and each amounted to this: that the notes had six months and the days of grace to run, and were discounted for that length of time, the Bank reserving interest in advance, at the rate of seven per centum per annum, instead of six per centum per annum, which the plea alleges was all she was, by law, entitled to receive.

The plaintiff demurred to the plea of usury, and joined issue to the plea of nil debet. The demirircr was sustained, and the case tried by the court on the general i: sue.

On the trial, the plaintiff :ead the notes in evidence, and rested the case. The defendants moved for a non-suit, on three grounds: First, that there was no evidence of presentment and demand, at the Bank at Helena, where the t.cie was payable, such presentment and demand being averred in the declaration. Second, that no protest and notice were proven, no protest being alleged in the declaration. Third, because the Bank had not proved she was a corporation. *593Motion denied', and judgment for the plaintiff. The defendant appealed.

W. & E. Cummins and Ashley & Watkins, for the. plaintiff in error,

argued the case at length, in writing. There were also several cases pendirig upon the same points, and others, which were decided at the same time. One point was, that one defendant was not served with process, but the pleas were- filed bj “ the defendants,” not naming them, and that it was to be taken that they had all pleaded; so that the the plaintiff could not, after plea, discontinue as to the defendant not served. To this point, counsel cited Robbins vs. Fowler, 2 Ark. 143. Tippet vs. May, 1 B: & P. 411. 1 Saund. Rep. 207, a. 5 J. R. 160. Lewis vs. Davis, 2 Bibb, 570. Chandler vs. Parkes, 3 Esp. 76. Jaffray vs. Freebain, 5 Esp. 47. Shields vs. Perkins, 2 Bibb, 229. Hardwick vs. McKee, 2 Bibb, 596. Ashley vs. Hyde & Goodrich, ante.

It was also objected, that the damages claimed were $400, and that the judgment was rendered for a larger amount of interest than that sum; and counsel cited, to this point, 1 Tidd's Pr. 653. 2 Tidd's Pr. 806. 1 Ch. PI. 130. Watkins vs. Morgan, 6 C. & P. 661. 1 Ch. PI. 372, 408. ’

Pike & Baldwin, contra.

It was not usury to take^the interest in advance; thus charging it on the whole note, and not on the sum actually -loaned; nor to take it for the days of grace. Thornton vs. The Ban kof Washington, 3 Pet. 40. Fleckner vs. Bank- of TJ, S., 8 Wheat. 338. Utica Ins. Co. vs. Blood good, 4 Wend. 652. JV. Y. Firemen's Ins. Co. vs. Slurges, 2 Cowen, 664, 678, 793. Manhattan Co. vs. Osgood, 15 J. R. 162. Lloyd, qui lam, vs. Williams, 2 W. Bla. 292. Renner vs. The Bank of Columbia, 9 Wheat, 581.

The plea, when not sworn to, was properly stricken out. It was a plea impeaching the consideration. Rev. St. 629. <

It was not necessary, under the general issue, to prove that the plaintiff was a corporation. 5 Shepley, 34. 16 Maine, 224. Society, &c., vs. Pawlett, 4 Pet. 480. Trustees, &c., vs. Kendrick, 3 Fairf. 381. Proprietors, &c., vs. Rogers, 1 Mass. 159. Proprietors &c., vs. *594 Call., 1 Mass. 483. First Parish vs. Cole, 3 Pick. 232. 3 Pet. 407. Boston Type Foundry vs. Spooner, 2 Verm. 93. President and Directors vs. Garrett, MS. decisions of Judge Brevard, 1 Rice’s Dig. 167. Canard vs. Atlantic Ins. Co., 1 Pet. 386, 450. Com. Dig. “Franchise,” F. 6, 10, 11, 15. “Capacity,” A. 2. 10 Co. 30, b. Mayor, &c., vs. Bolton, 1 B. & P. 40.

It was not necessary to ave • or prove presentment and demand.. Sumner vs. Ford, 3' Ark. 389.

It was unnecessary to prove protest and notice. No protest is necessary in the case of a promissory note. Cummings vs. Fisher, Anth. M. P. 1. Rayner vs. Winn, 2 Bay. 374. Rahm vs. Phil. Bank, 1 Ravile, 335. Bank of M. A. vs.. McKnight, 1 Yeates, 147.

Of course, if no demand wr.s necessary, no protest was.

The charter allows the Bank to take six per cent, in advance, ots> notes payable in four months, tnd seven percent, in advance on notes payable in eight months. The act of March 3d, 1838, allowed her to take, on notes having less than four months to run, six percent., and, on notes having four months, and less than eight months to run, seven per cent. The act of 10th Dec., 1838, changed the rate of interest to be charged by the .State Bank, to six per cent.., on notes payable four months after date and uncer, and seven per cent, on all payable over four months, and after eight from date, and repealed the first section of the act of March 3d, 1838.

The act of 10th Dec., 1838, could not affect the Real Estate Bank.. The act of March 3d, 1838, was as much a contract with the Bank, as her charter. The privilege granted thereby, as to the rate of interest, could not, afterwards, be taken away. Mew-Jersey vs. Wilson, 7 Cranch, 164. Terrett vs. Taylor, 9 Cranch, 43. Dartmouth College vs. Woodward, 4 Wheal 518. Allen vs. McKeen, 1 S-umn. 276.

No consideration was necessary for this grant of privilege. An executed gift or grant is a va id contract. Dart. Col„ vs. Woodward, 4 Cond. Rep. 571.

It was a valid contract with an existing corporation, ib. 174.

The implied powers of a corporation are as much beyond legislative control as those expressly given. People vs. Manhattan Co., 9 . Wend. 393.

*595It did not affect the Real Estate Bank. It was not intended to ap- , ply to her. She claims under the 6th section of .the act of March, which refers to the first, and makes it a part of itself. The repeal of the first did not repeal the sixth. The first still existed, for purposes of reference. Besides, the act of December was only passed in reference to the State Bank. Expressio unius, exclusio est alterius. On every act professing to repeal or interfere with the provisions of a former law, it is a question of construction whether it operates as a total, or partial, or temporary’repeal. The word “ repeal” is not to be taken in an absolute, if it appear upon the whole act to be used in a limited sense. Rex vs. Rogers, 10 East. 573.

The objection that the damages exceed the amount laid in the declaration, is futile. The'cause of action is a legal liability., certain and defined; and the damages, being the statute rate of interest, cannot be exceeded. It is utterly unimportant whether the damages are omitted altogether or laid too low: just as much so as the omission of John Doe and Richard Roe, pledges to prosecute. The declaration was amendable below, and will be considered as amended here. It is mere matter of form, and not reachable either on general demurrer or on error. Ellitt vs. Smith, I Ala. M. S. 84. Boddie vs. Ely, 3 Stewart, 182. McWhorter vs. Standifer,^ Porter, 519.

By the •Court,

Dickinson, J.

In regard to the plea of usury, it constitutes no defence, in this instance, as the act of 3d March, 1838, authorizes the defendant in error to charge the same rate of interest as the Bank of the State; and the interest, in this case, was calculated ■according to the provisions of that act. The judgment upon the demurrer was, therefore, right. The Bank, being a public corporation, was not required to be proved; as the court was bound judicially to take notice of it. It was not necessary to prove demand at the place of payment, as has been ruled by the court, in the case of Summer vs. Ford.

Judgment affirmed.