President of the Bank of Utica v. Wager

It is, notwithstanding, an authority here by which we are bound.]

Spencer. A writ of error is brought in that cause.

That makes no difference. The decision is in point *, and, till reversed, we must abide by it.]

There is but one way of questioning our opinions upon a point directly involved in the cause decided. That is by bringing a writ of error. If we sit to hear them questioned in this Court, there is nothing settled by any decision which we can make. On a point incidentally decided, it might be different.]

You are undoubtedly right in raising the question, but a majority of the Court are decidedly against hearing it argued.]

Spencer proceeded to the 5th point.

5. This relates to the question of intention, and the force of usage. If one, on loaning money, take more than 7 per cent, at the time of the loan, the law will fix the intent. The bank clerk says, that Hunt, the cashier, ordered him to discontinue the calendar year, and calculate by the rule adopted in relation to these notes; and that he had done so ever since he came into the institution. Was either the cashier or the clerk ignorant of the consequences which would follow ? The almanac is a part of the law of the land,^[27] and every one will be presumed to understand it. If the conventional standard take more than 7 per cent, the law will imply intention and corruption. A loan is for a year’s per cent, or more, or less. The parts of a year are in question. The statute does not mention months, or any term short of a year. It speaks of a loan for a year, or, a longer or shorter time, The necessity of resorting to months, upon principles of convenience is denied. The legislature knew that interest could be computed by years and days with perfect ease. Why then resort to months 1 The answer given by the plaintiffs is, that they have been guilty of taking, interest in this manner for more than 10 years, and that their neighbors are as guilty as they are.

In Marsh v. Martindale, Ld. Alvanley, Ch. J. gave his opinion, in terms, “ that if a man agree to take more than 5 per cent, for the forbearance of money, the law declares that such an agreement is corrupt, within the statute of Anne, whether the party thought, at the time, that he was acting contrary to the statute or not.” That case was a bill of exchange for £5000, for which a bond was substituted, payable at 3 years, and £750, the precise legal interest, was

The custom relied on must be very limited. The Court will see, by an examination of our bank charters, that they are rarely authorized to take more than 6 per cent, interest. This usage could not have existed any where in the state, till this bank was chartered, 13 or 14 years ago. The usage of shortening months, &c., must have been confined, before this to discounts at 6 per cent, which would not have reached the sum allowed by the statute of usury. There is, then, no usage to influence the case.

But if there were usage, I deny its force when set up to control the statute of usury. I do this on the authority of Dunham v. Gould,^[28] decided by the Court of Errors, in which the late Chancellor examines all the cases upon this point, and shows that they rest upon distinct principles. Suppose a loan of $1000, at 3 years; and 3 separate notes, at 3 years, given simultaneously for the interest, these three notes also drawing interest. This transaction is reached, exactly, upon banking principles. Such was the case of the Bank of Maine v. Butts.^[29] $10,000 were loaned—4000 for 2 years, and. 6000 for 3 years—and small notes, dated at the same time, and payable at 3 years, were taken on interest to secure each accruing years’ interest upon the large notes. This was holden usurious : and the Court adopt the sensible distinction between a mere miscalculation, and an intention to compute by a usurious rule. Have the plaintiffs shown any mistake in their arithmetical calculations ? No. They understand themselves perfectly. They are right throughout, in fractions of years, months, &c., and the result is cor. rect. I hope the Court will keep in view the difference be

The agreement may be perfectly pure ; yet if more be taken than 7 per cent, as a premium for the loan, by force of any pretended rule or custom, it is void.^[30]

If the bank retained more than 7 per cent, knowingly, it was usury, though Wager did not know it. It is enough that the party who makes the loan understands the subject. The authority to the agent was, to pay what was demanded upon the third note. This was done. The bank demanded $18 09, and it was paid accordingly. The agent meets the proposition made by the bank. Usury never could be reached, if the counsel are allowed to refine away this case by saying that the bank acted without an usurious intent. It might as well be said they could have no criminal intention, because (being a corporation) they had no soul.

(same side.) It will be recollected, that the sum of $18 09, was taken for interest only. Here, then, is a case where an incorporation, created for the purpose of loaning money, and subject, like an individual, to the operation of the statute to prevent usury, have thought proper, deliberately, intentionally, and for years, to take over seven per cent, per annum. One would suppose, that the bare statement of facts would be a sufficient answer to all that has been, or can be said in justification of the practice adopted by the plaintiffs.

The statute of usury declares,^[31] “ that no person or persons, whomsoever, shall hereafter take, directly or indirectly, for the loan of any moneys, &c., above the value of £7, for the forbearance of £100 for one year ; and so after that rate, for a greater or lesser sum, or for a longer or shorter time.” All notes, &c.; for the payment of any principal or

It has been said, that the bank did- not intend to violate the statute of usury, and, therefore, the security is not void. If a bank, or an individual, will adopt a mode of calculating interest by which they get over 7 per cent, they can never allege a want of intent, on their part, to violate the statute. If they will adopt a mod,e of calculating interest which is illegal, they must be responsible for the consequences ; for ignorance of law will excuse no man. The very adoption of such a mode is, in law and in fact, evidence, and that conclusive too, of an intention to violate the statute, as well as of a corrupt agreement.

I refer the Court to the Bank of Maine v. Butts,^[32] for the purpose of showing what was there regarded as conclusive evidence of a corrupt agreement. The defence in that case, was usury; and the plaintffs put their right to take the sum which they bad received for interest, on the usage of banks. Sewall J. concludes his opinion in these words : “ It is probable, that in this case, there was no intentional deviation on the part of the bank, but a mistake of their right. This, however, is a consideration which must not influence our decision. The mistake Was not involuntary, as a miscalculation might be considered when an intention of conforming to the legal rule of interest, was proved, but a

The maxim, ignorantia legis neminem ex cus at, is founded in the clearest reason, and the most evident necessity. Civil society could not, possibly exist without it. If ignorance could be alleged in justification, or in excuse for the violation of a law of general application, civil society would be at an end. This maxim is equally applicable to criminal as to civil jurisprudence. Blackstone says,^[52] if a man thinks that he has a right to kill an excommunicated person, and does kill him, he is guilty of murder; for ignorance of law can never be alleged as an excuse, even in a criminal proceeding. The intention to kill was not more evident in the case put by Blackstone, than the intention, on the part of the bank, to take this interest. If the allegation of ignorance could not avail, in the case of murder, a fortiori, it ought not in the case of usury. The plaintiffs in this case intended to do every thing which the law makes necessary to constitute the offence of usuiy, and yet allege their innocence. They intended to get over 7 per cent, for interest on their loans, and then protect themselves by an allegation,

Usury or not, say the plaintiffs’ counsel, is a question of intent. In this we agree. How is this intent to be ascertained ? Did the lender intend to take over 7 per cent, for interest ? is the inquiry, in all cases. If he did, then is there an end to the question of usury. This is a matter of fact, to be submitted to a jury, and if the jury find that the excess was taken for interest, the security is void. If they find that the excess can fairly be referred, in the transaction, to something else besides interest, then' the security is not void, because over 7per cent, has not been taken for interest. It is proved, in this case, that it was, and that, too, intentionally ; and the only question is, whether such an act is usury 1 This is a question of- law; or, in other words, what does the statute to prevent usury say a man may take for the forbearance of a loan of money ?

In Hammett v. Yea,^[34] the question was, whether the transaction was usurious. The lender had gotten more than at the rate of 5 per cent, and whether the excess was to be called interest, or whether it could be fairly referred to something else, as remittance, was the question. The Chief Justice commences by saying, “ 1 will begin with stating my assent to the proposition, that when a party on a contract for a loan intentionally takes over 5 per cent, per annum for the forbearance of that loan, he is guilty of usury. But I add to this the further proposition, that whether more than 5 per cent, is intentionally taken upon any contract for such forbearance, is a mere question of fact for the consideration of the jury, and must always be collected from the whole transaction, as it passed between the parties.” If the jury had found that over 5 per cent, was intentionally taken for interest, then, according the opinion of Chief Justice Eyre, the transaction would have been usurious. Now the very fact which it was necessary there for the jury to find, is here proved by the clerk of the bank.

Will it be pretended, that the plaintiffs have not intentionally taken this $18 09, when it is proved that they have been in tire habit of taking interest in the same way, upon all

Marsh v. Martindale.^[35] In this case the jury found, that the plaintiffs' did°not intend'to be guilty of usury. Lord Alvanley, Ch. J. says, “ I stated to the jury, that if a man agree to take over 5 per cent, for the forbearance of money, the law declares such an agreement corrupt, within the meaning of the statute of Anne, whether the party thought, at the time, that he was taking usury or not. The finding of the jury does not prevent the Court from inquiring into the transaction, and declaring it corrupt, if it be so in point of fact.” In this case the Court, believing the transaction usurious, pronounced it so, contrary to the finding of the jury. According to the opinion in this case, it is of little consequence what the lender thought about the purity of the transaction, provided it is in law corrupt. All the authorities agree in this, that whether the lender intend to take over the legal rate of interest, is a question of fact for the jury. Yet if the jury should find contrary to law, declaring that not usurious .which in law is clearly so, the Court will set aside that finding.

The law, then, has fixed the intent with which a man acts, who takes over 7 per cent, for interest, deliberately and knowingly. ■ The case explains the manner in which the excess was obtained; by calling a year 360 days, and a month 30, in all their calculations. Shortening the time

This practice of the plaintiffs is either justified by the lex mercatoria, or custom of merchants, or by a usage which is proved by the clerk of the bank to have prevailed for 9-years among a certain set of men, and which this Court is now called upon to sanction.

What, then, is the lex mercatoria, and how is it to be proved 1 According to Blackstone,^[36] it is a particular system of customs, used only among one set of the king’s subjects, “ which, however different from the rules of the common law, is yet ingrafted into it and made a part of it; being allowed for the benefit of trade, to be of the utmost importance in all commercial transactions. For it is. a maxim of law, that cuilibet in arte credendum est.” The law relating to bills of exchange, and all mercantile contracts, are as much the general law of the land, as the laws relating to marriage or murder. The lex mercatoria, or law merchant, is part of the common law of the land.

In one case,^[37] the question was, whether a bill of exchange payable to order, becomes negotiable, and may be endorsed over, without the word order in the endorsement. On the trial at nisi prius, Lord Mansfield permitted the defendants to prove the usage of merchants in such a case. Witnesses were sworn on both sides. The jury found a verdict for the defendants. The plaintiffs moved for a new-trial, and alleged that the proof of usage of merchants ought not to have been received, because the law was already settled. Lord. Mansfield, in giving his opinion, on the motion for a new trial says, “ since the trial, I have looked into the cases and thought much about it, and am clearly of opinion, that I ought not to have admitted any evidence of the particular usage of merchants in such a case. Of this I say 1 am now satisfied, for the law is already settled.” He says further, “ the point now in question, has already been solemnly settled both in the King’s Bench and Common Pleas, by two adjudications; and, therefore, witnesses ought not to ■ have been called after such solemn determinations oí what the law was.” Dennison and Foster, Js. concurred, for the

If a question respecting the law merchant has once been established by judicial decisions, these are the only evidence which Courts receive of what the law is. Any other practice would be derogatory to Courts, by rendering the wavering and unstable opinions of individuals, of greater weight and authority than the solemn and deliberate opinions of judicial tribunals.

What, then, is the custom which the plaintiffs seek to establish? They say that they have always considered a month as 30 days, and a year as 360; and they say that they are justified in this by the usage or custom of banks. All judicial determinations, from the earliest cases, settle the law, as applicable to bills of exchange and promissory notes, that a year contains 365, and a month 28,29,30 or 31 days. The law on this subject is fully established by judicial determinations,- and, according to the opinion of Lord Mansfield, Edie v. The East India Company,^[38] no proof of usage was admissible. Can it be pretended that a year is of one length when they wish to calculate interest, and of another and different when they wish to fix an endorser by protest? And is the same law merchant to bear them out in these two conflicting pretensions? This is the practice which the plaintiffs gravely ask the Court to sanction,' and entail upon posterity, in opposition to the known and estab

Custom or usage may be proved for the purpose of showing that the excess, if any, was not taken for interest, but as a compensation for remittance, commissions, &c., not for the purpose of justifying the taking over the rate fixed by law. No usage can justify this,^[39] any more than it could control an express contract.^[40]

in the case of Dunham v. Gould^[41] the Chancellor in giving the opinion of the Court, says, “ It is perfectly idle to talk of a custom of merchants to take a commission above the legal rate of interest, on the exchange of notes. Custom of merchants is not applicable to such a case.. It is not matter of trade and commerce within the law merchant, and if there were such a local usage in New York, it would be null and void, and could not be set up as a pretext or cover to trample down the law of the land. The money lenders throughout the country might as well set up a practice of their own, and then plead it in bar of the statute.” If the practice of the plaintiffs is adjudged good, then the practice of six or eight banks in this state will, in effect, be pleaded in bar of the statute. They will be permitted to trample down the law of the land. Lord Loughborough,^[42] says, that the custom of trade to take over five per cent, (or the legal rate of interest of England) cannot authorize a greater demand than five per cent.

The language of Lord Mansfield, used in the case of Jestons v. Brooke,^[43] when speaking of the case of Floyer v. Edwards,^[44] will not warrant the idea that usage, be it ever so constant, would justify the taking of usury ; on the contrary, he expressly says it will not. The inquiry in the case of Floyer v. Edwards, was, whether the transaction was a borrowing and lending, and in this view the usage was taken into consideration.

In one case,^[45] the defendant undertook to set up a custom in Southampton, that a pound should be 18 oz. The statutes of England having fixed the pound at 16, Lord Ken

In most countries, guards have been provided by law, against impositions upon community, in the use of false weights and" measures. This is highly penal in our own state,^[48] and the offender, in public estimation, is justly consj:qereq jnfaIhous. Courts of justice have always been rigid in enforcing these statutes, inflicting punishment for the most trifling violation. Why was this ? The reason is obvious ; because weights and measures are of constant and daily use in our dealings with one another, and because the frequent use of the same false weight or measure would

In Butt v. Conant,^[28] speaking of usage, Dallas, Ch. J. says, “ if the practice were against the first principles of constitutional law, and an evident* encroachment upon the rights of the subject, I would go even the length of saying, if it were of this discretion, and were sanctioned by the expressions of one of the Judges, in such a case I would not hold it to be law if it had" existed from the foundation of Rome.”

A custom contrary to public good, or injurious to a multitude and beneficial only to some particular persons, is repugnant to the- law of reason, and consequently void.^[29] The Judges say, in things against law and reason, usage is to no purpose^[30] Customs ought to be beneficial to all, , , , i , . ? . „ ’ but may be good when agamst the interests of particular persons, if for the public good.^[31] A custom that begins by the extortion of lords of manors, is judged wanting a lawful beginning, and therefore void^[32]

The Court will find, if they examine the acts incorporating the different banks in this state, that most of them are restricted in their discounts, to six per cent, and those in the city of New York, which are not so restricted, usually confine themselves to that rate, otherwise they could not do business. Now a bank that takes at the rate of 6 per cent, may call any number of days, less than 365 a year, and calculate interest accordingly, provided they do not get over 7 per cent. The undoubtedly violate their charter, but are not guilty of usury.

It may be supposed, that the amount received was too trifling for the notice of a Court of Justice, and that judgment would therefore be given for the plaintiffs. I will not for a moment entertain the idea that such a supposition is correct. The statute of usury must be protected from the most trifling violations, or not at all. The legislature have set bounds to the unfeeling and avaricious lender, which he is not to pass with impunity; and that Court is guilty of treachery to the public, that does not confine him within legislative limits. The Judge would ill deserve a seat upon the bench of justice, who should let his decision be at all influenced by the amount which the violator of the statute

Something has been said, and more probably will be, in regard to the consequences of a decision against the plaintiffs. This is an argument seldom resorted to when other substantial grounds can be taken. It is generally the last, and with parties situated like the plaintiffs, the most desperate effort. Such arguments, however, can never assist any person in arriving at the truth. In the case of Waters v. Stewart,^[36] Chief Justice Spencer, in giving his opinion in the Court of Errors, says, “ arguments ab inconvenienti have been suggested. There can scarcely exist a case, however well settled, where such arguments cannot be urged. They prove nothing, and should be listened to only in doubtful cases.” In the case of Langdon v. Potter and others,^[37] Chief Justice Parsons says, “ arguments drawn from inconvenience, are to have weight only in doubtful cases.” In the present case nothing is doubtful.

Private statutes, made for the accommodation of particular citizens or corporations, ought not so to be construed as

It may he well, perhaps, since arguments ab inconvenienti have been used for the plaintiffs, to turn the attention of the Court, for a moment, to the consequences of a decision against .the defendant. The plaintiffs by calling 360 days a year, have, ever since their incorporation, made every 73d dollar of discount oyer 7 per cent. The .only true way of testing the operation .of any practice-is, by viewing its consequences for a long course of years, and for the purpose of showing this, I have made a calculation, giving its effect upon one million of dollars for a century. By this calculation it will appear, thatin a century, over twelve millions of dollars will be illegally taken. This makes an annual average of 120,000 dollars. The circulating medium of the United States is probably not far from 150,000,000. The amount of the annual ayerage which would be thus illegally taken, upon the principle .contended for by the plaintiffs from the whole United States, over .and above 7 per cent, would be 18.000,000. The inconsiderable sum which will probably be lost by a judgment against the plaintiffs, compared with the enormous tax which will certainly be entailed upon community by a contrary decision, sinks into utter insignificance. The amount which will be lost to the plaintiffs, will, in all prpbability, fall far short of xvhat they have illegally tqken; and it is of immense importance to a growing commercial country like ours, that questions of this sort should be settled upon true principles. If we were compelled to make pur loans from foreigners, upon the principles contended for by the plaintiff’s counsel, the effect would be utter destruction. In a very short time the whole wealth of the country would be exhausted by such illegal exactions. Compared with such a state of things, the paltry tax npon tea, which contributed to produce the revolution, would have been insignificant indeed. The restrictions against usury are founded on the strongest reasons of policy and morality; they have, therefore, been imposed in almost every age and country. It is no law of doubtful policy or ex

It is certainly well settled by the authorities cited in the opening, that to constitute usury, so as to avoid the security, there must be a corrupt agreement. No case has been produced to the contrary. If this be necessary, then, in order to constitute the offence with which we are charged, we must have had an associate. It is difficult to conceive how there can be a corrupt agreement, without there being two parties. These are essential to every contract. Who is the person with whom we have made the corrupt bargain charged upon us ? Not the defendant. He disavows it. It is denied that he knew any thing of the usury, till some time after the note in question was discounted ; and his counsel complain that he has been practised upon from the beginning, without knowing any thing of the imposition. All is a recent discovery.

Now I propose to show conclusively, that there never was a case of usury without the concurrence of two parties. Smith v. Beach,^[39] is a respectable authority to this point, and will be found to accord as well with the spirit of all the cases, as with reason and common sense. The point there directly decided, was that a corrupt agreement, in which the minds of the parties meet, is necessary to constitute usury ; and, therefore, where more than lawful interest was reserved, with the knowledge of the lender, but without the knowledge of the borrower, it was held that the transaction was not usurious. The reasoning of the Court is directly applicable to this case, and, if it be law, is conclusive in favor of the plaintiffs. “ A corrupt agreement (they say) is essential to constitute usury; and, to form a corrupt agreement, as in all other contracts, the minds of the parties must meet. The assent of Beach (the defendant) was, therefore, as essential to the existence of an usurious agreement

The several provisions in the 1st and 2d sections of the statute of usury,^[40] show, that the distinction between the two cases, of a corrupt agreement and the receipt of excessive interest by the lender without the concurrence of the borrower, was intended to be kept up by the legislature. The 1st section provides for the case of taking excessive interest for the forbearance of money, or reserving it by certain contracts or securities. If so taken or reserved, the contract or security is declared void. The contract itself is vitiated by the corrupt agreement. The second section was intended to provide for taking usurious interest, in the same way, and it gives the remedy. Within one year the borrower may recover back the excess. If not knowingly paid, the statute could never have intended to confine him to the year. If ignorantly paid, he has the six years, and might recover it back, upon the general principle, that it was money paid through mistake or fraud. It stands on the same footing as money twice paid on a note by mistake. Suppose an illiterate man to borrow $100, and the lender fraudulently draws, and procures him to sign a note for $105. This would not be void for usury, but for fraud; whereas, if the lender should say, I must have $105, and the borrower then should sign a note for that sum, it would be void for usury. If gentlemen are willing to abide by their own admissions, the case is against them. They are loud in urging the entire ignorance of their client that any excess was de

The first counsel for the defendant conceded, that if the second note was valid, w.e may recover for that. If void, we may go for the first, if that he good. Upon the latter, it is said we took interest for three days, which it had already run when presented for discount; but was it not, to all legal purposes, discounted on' the 12th of September. It was car? ried for discount on that day, and on an objection being made to the form of the note, another was afterwards substituted in an acceptable shape, which was actually discounted upon the 15th. The money was, then, virtually set apart for this purpose upon the 12th, There was a proposition to do it, which was afterwards executed. Take the case of a request for a loan in the morning, and the money laid apart for the purpose, but not actually counted out till the next day, when the loan is completed : would it not be iniquitous to object usury 1 The Court are called upon to presume what the contract was ; for none of an usurious nature is shown; and they will not make a presumption which shall involve the party in guilt.

But what is the legal date of a note 1 It is the time of . deliyery.^[41] This was on the 15th of April, when a discount for 90 days was rightly taken $ for it had that time to run. an actj0¡3 been prosecuted before the expiration of that time, it would not have lain. The Court would rather presume this to have been the contract, than impute the crime

This case goes, moreover, to show the weight which is given to arguments ab inconvenienti, upon these commercial questions. The consequences, to be deprecated are, the overthrow of floating paper, which has always been supposed to be good, and the involving thousands of innocent men, who never dreamed that they were taking excessive interest, in the crime of usury.

We accede the distinction made between mistakes of law and mistakes of fact. Knocking a man down in the street, or shooting at him, and taking his life, will constitute murder, whether the offender knows that it comes within the legal definition of this crime or not. But the two cases of Brown v. Harraden,^[44] and Glassford v. Laing and others,^[45] furnish a complete illustration of the distinction between a mere mistake of the law, and the one insisted upon in this case. We claimed the right to have the first day upon each note included. This is the mistake, if it can, bo calkiá one

■ Floyer v. Edwards,^[46] was cited in order to show that the intention of the parties is material; that they must both concur in the bargain ; and the Maine Bank v. Butts,^[47] with the same view. No mistake, in these cases, was pretended. There could be none. The latter was of notes palpably usurious. It was the case of taking two distinct notes for the same money. A note is taken, say for the principal, at three years : other notes are taken for a part of the same sum, at the same time, at shorter dates. This is the case of the Maine Bank v. Butts, yet the question of intention was left open to be referred to a jury ; and that question is always involved, where a party is on trial for a crime. There are certain offences to which knowledge is essential, and must be averred in an indictment. The crime of passing counterfeit money is one. Usury is another. The intention of the parties is here the git of the inquiry, and must always be left for the jury to pass upon. A man takes 8 per cent, ignorantly: unexplained, it would be usury. If shown to have been accident, it would be otherwise. Thus, even in 'the Maine Bank v. Butts, the act of taking the smaller notes was open to explanation, and the prima facie case, made out by the defendant, might have been done away, by proof on the other side.

It is complained, that our calculations were made in secret ; that the business was so managed that they could not be comprehended by the borrower. But what ought the Court to infer under all these circumstances 1 Here is plainly room for mistake. What should the presumption, be ? Glassford v. Laing and others,^[48] and Buckley v. Guildbank,^[49] are strong cases to show that where the Court can infer a mistake in taking the excess, they will do it, in order to avoid imputing the offence of usury. Taking a trifling excess beyond the legal interest, according to an extensive practice among money lenders, is a subject also of this rule of presumption in favor of innocence. “ Thus, Lord Mansfield, in Floyer v. Edwards :^[50] . “ Upon a nice calcula

If gentlemen object to our rule of calculation, théy ought to have supplied us with a better.' The practice of calling 60 day's | of a year, in calculating interest, has prevailed for a great length of time ; and-, with a perfect knowledge Of this- practice, it will be seen- that almost- every act for incorporating banks refers- to 60 day nbtés. Being the most usual kind of bank paper, and understood in the long continued practice' of the commercial world to mean } Of a year, is it too much to say that the legislature referred to them in this character ? Indeed', they are, aS we have shown, in fact, f if you take them as the aliquot' part, and' reject the fraction.

It was not- usurious to discount the 2d and 3d notes before the ones for which' they Were substituted fell due. If there-had’ been a'n origna! express agreement to this effect, it would ha^e’been another question; btit the existence of any such-agreement is negatived by the proof

The note on' which this suit was brought, bears date the 14th of March, 1821, and is payable in 90 days-after date. It wás presented at the bank, on the l’5th : $18 09', paid as the discoúnt- and interest upon it'. It fell dfie on the 15th June. The interest was calculated as in the case of the New York Firemen Insurance Company v. Ely & Parsons,^[52] upon' the principle that 90 days Were the fourth of a year'. This note was the second' renewal of One, dated the 12th of September, 1820, and discounted by plaintiff at 90 days. The interest was calculated upon the same principle, and the- same amount received upon this and the second as upon the last-nóte.

It is unnecessary to consider the varioüs points' which were discussed in this'-casé; There ■ is' rtothin g fo take it Out of the operation of the' principle-established in The Firemen