JUDGE SAFFOLD
delivered the opinion of the Court.
On the trial of this cause a variety of objections were made by the then defendant’s counsel, all which are presented for the consideration of this Court on bills of exceptions.
Several exceptions taken below and assigned for error here, are believed to be highly important in principle, and have received the deliberate consideration of this Court, aided by the arguments of eminent counsel. An exception which appeared to involve intrinsic difficulty, relates to the competency of the Judge; he being at the time a Director of the Bank in whose favor the suit was instituted. This is embraced by the first assignment of error, viz : That the Court erred in overruling the challenge of the defendant to the competency of the Court, and in proceeding to adjudicate the cause.
It is admitted by the record that the Judge was one of the Directors of the Bank. The objection was made in the form of a challenge to his competency. The President and Directors being an incorporated body, sued, as they were authorized to do, in their corporate style and capacity. The fact is well understood and admitted, that [463] tbe Bank is exclusively a State institution, no Director or other person having any individual interest therein. Nor is the Judge a party, otherwise than as one of the thirteen persons constituting the body politic ; which does not, without extrinsic evidence, shew the natural persons composing it, so as necessarily to identify him as a party of record. Hence, the objection of mere apparent inconsistency does not apply. Yet if the true situation of the Judge legally disqualified him for the adjudication, the covert character in which he and others were authorized to sue, could not sanctify the proceeding.
The boundary of judicial competency does not appear to be as well defined as tbe importance of it would presuppose, nor is the method of taking the exception, where it justly exists. It is however believed to be a well established principle of law, “that a Judge ought not to adjudicate in his own cause, or in pleas where he is a party.” a “ A judgement given by a Judge whoisaparty in the suit with another, and so entered of record, is error, although several other Judges sit there and give judgement for the Judge who isa party.” b “ Where a Judge has an interest, he cannot determine a cause or sit in Court; and if he does, a prohibition lies.” c
But it is also said, “a Judge shall not be generally excepted against or challenged ; or have any action brought against him for what he does as Judge.” d A case is reported In the old books and may be found in 12 Modern, where a judgement rendered by the Mayor and Aldermen of London, in favor of the Mayor and Commonalty, was reversed in tbe appellate Court for the incompetency of the Mayor to adjudicate the case in which he was a party. In that case, as in this, it did not appear that the judicial officer had any private interest in the judgement; yet at least one important distinction exists between the two cases. In the case of the Mayor, the same officer with precisely the same title, must necessarily have appeared as one of the plaintiffs, and judge of the cause; and must have been by the ordinary proceedings identified as the same person ; so that the fact could be, and was presented to the notice of the appellate tribunal, without the anomaly of addressing an objection to the presiding officer, which related personally to himself.
The counsel for the plaintiff in error has urged the application of the same doctrine of challenge to jurors and [464] Judge, tliat they must be omni exceptiom majares. a The cases referred to relate exclusively to jurors. Could it be shewn that the same exceptions apply equally to Judges, and that there is a practicable method for making the objection on trial, I should incline to the opinion that this exception to the competency of the Judge ought to prevail. The letter and spirit of the law, the dignity of the State, and reputation of the judiciary, demand pu-rityinthe arbiters, and impartiality in the administration of justice; and if any distinction is to be drawn, it is more important that the Judge should be impartial than any juror should, because of his greater authority and influence. It cannot however escape observation, that many cases legally disqualify jurors, which do not in legal contemplation affect Judges; among which may be mentioned, the formation of a previous opinion, former adjudication of the same case, remote relationship. Perhaps the reason of the law for this difference may be founded on the inconvenience of procuring at all times, Judges who are entirely indifferent; the presumption that their professional acquirements or official avocations leave them less liable to extraneous influence; their great hazard from abei ration of duty; together with the fact, that their decisions are more accessible to public animadversion, legal scrutiny and correction. The power and influence of a sole presiding Judge, is confessedly great but his decisions being generally subject to revision, there is a prospect of correction in case of error. If the decision be correct, justice is indifferent to the private wishes of the Judge. If the Judge be corrupt or grossly ignorant, he is responsible to the State, perhaps to the party aggrieved. These are some of the barriers on which the law relies for the restraint of Judges against the improper exercise of their authority. I would not be understood to say these are all, for should a Judge or justice evince an intention to try a cause under circumstances creating obvious objections, I should hope some method could be discovered to arrest his course. Or if he shall have tried the cause, and decided erroneously or corruptly, and the party cannot be relieved by the ordinary appeal, I trust he may find (besides the responsibility of the Judge) relief in the chancery or executive as the case may be. But as cases of this kind are now scarcely to be found, except in the annals of remote history, I have already [465] dwelt too long on the subject. One insuperable objection in the opinion of this Court, against the right to challenge a Judge in his own Court, is, that there can be no adequate tribunal to hear and determine the challenge. The Judge is incompetent to try his own competency, or to ascertain the facts on which the question of competency depends. Another, and we believe not a slight objection to the course would be, that if the right be admitted, the Courts are subjected to frequent annoyance of the most disagreeable kind, and their authority weakened and abused by frivolous or imaginary objections to the person of the Judge. Where it must appear to the appellate court as matter of course from the record, without objections made or evidence introduced in the Court below, that the Judge is a party or interested, as in the case of the Mayor of London, the difficulties as stated, to allowing the exception, do not apply; and perhaps a stronger objection to the challenge than any other, is, that after much research by the vigilant counsel concerned, as well as the Court, no precedent for it has been found in England or the United States. Whether under the circumstances of this case, it was legal and proper that this Judge should have tried the cause, we do not now express any opinion; but we decide that the exception was not available as matter of defence to the action, either by challenge or plea.
The second assignment is, that the Court erred in. overruling the defendant’s motion to quash the notice.
The charter in prescribing the mode of collecting the debts of the Bank, provides, that it “shall be lawful for the President of the Bank, after having given thirty days notice thereof, to move the Circuit Court of the county where said Bank may be established, on producing to said Court before whom the motion is made, the certificate of the President of the Bank, that the debt is really and bona fide the property of said Bank, for judgement; and all debts due by the said Bank, by bond, bill, note or otherwise to any individual, or body corporate, may be sued for and recovered in like manner.” A subsequent act gives concurrent jurisdiction to the County Court.
The notice was signed by the President, with the seal of the corporation affixed thereto, and was attested by the Cashier, It was addressed to the defendant in the mo[466] tion and the two other joint promissors, notifying them that the motion would be made at the particular Court, for judgement and award of execution against them and eat], them, 0n a note due from them to said Bank, discounted on the 14th day of December, 1825, for two hundred and fifty dollars, payable to the President, &c. negotiable at said Bank ; when and where they might appear and contest the claim. A notice in writing which so far identifies the debt for which judgement will be moved, as to afford reasonable certain*) , is deemed sufficient. This we would hold necessar) tnough the charter does not prescribe the requisites, or expressly require it to be in writing. The notice may be given by a private person, who will prove the service, or by the sheriff, as was done in this case. It is part of the evidence necessary to sustain the motion. This notice is believed to have been sufficient. •
Third assignment. That the certificate is' equally defective in not identifying- the paper sued on. The amount of the note is larger than the sum mentioned in the certificate as then remaining due. It is known to be nothing unusual for debtors to make partial payments, and the history of the country may vvell inform us, if material, that debts in this Bank are usually reduced several times by curtailments, before extinguished. The sum mentioned in the certificate, is not expressed as the original amount of the note, but as the amount of the debt at that time. If the debt claimed in the notice and motion did not correspond with that described in the certificate, it being subject to resistance or explanation by other evidence, the motion could have been successfully resisted. The entire object of the certificate is conceived to be, to ascertain the title of the Bank to the debt moved for, and to prevent the Bank from collecting other debts by the summary process. For this purpose it is deemed sufficient.
Fourth assignment, That the Court refused to sustain the motion of defendant for a non pros, is understood to refer to the absence of a declaration. This was unnecessary. The charter authorises the proceeding- by motion, on the note and certificate, and by necessary implication dispenses with special pleading and all technicality. But it requires bv legal construction, in lieu there rf, that the record shall shew every material fact to have [467] been proven, whether the judgement be by default or otherwise.
The fifth assignment is, That the Court erred in overruling the plea of nul tiel corporation. Under this assignment it is contended that the charter is unconstitutional, on the ground that the remedy for and against the Bank is not reciprocal, that all debtors must be sued in the county in which the Bank is, and that the President is authorized by the charter to create a certificate to be used as evidence in its favor. A correct interpretation of the language of the constitution that “the remedy for collecting debts shall be reciprocal for and against the Bank,” is believed to be, that the remedy for and against it shall be equally summary, on like notice and evidence, and in the same form. The provision in the charter that all motions for and against the Bank are to be made in the county where it is situated, may or may not be equally convenient to each party; something may depend on the residence of the party opposed to the Bank. But this trivial and contingent convenience is not believed to be embraced by the constitution. Besides, it is to be observed that this privilege only extends to contracts in favor of the Bank, which contain an express stipulation, that they shall be negotiable and payable at 'the Bank, and the charter is to be regarded as the authority for making such contracts," and as forming part of them, to which neither paity can object. The certificate required on the part of the Bank is an additional requisite -against it, designed merely to ascertain the Bank’s interest in the debt, and does not dispense with any proof which would otherwise be necessary. It cannot supersede the necessity of producing the original evidence of the debt, or in any thing prevail against it. It may contain an admission of credits against the Bank. For these purposes the certificate cannot prejudice the defendant, but rather protect him.
The sixth assignment is. That the Court sustained the demurrer to the defendant’s plea of usury. With respect to any rate of interest not exceeding eight per cent, the law is the same as if the act of 1819, regulating tho rate of interest, did not exist. That act cannot affect any contracts except such as reserve a higher rate than eight per.cent. Nor is there anv statute that can operate on this contract, except the charter of the Bank, inasmuch as the interest [468] reserved is admitted by the plea to have been less than the rate of eight per cent. The charter authorizes the Bank to deal in bills of exchange and discount notes at a rate 0f jnterest not exceeding six per cent per annum. It does not declare an excess usuxious, or what would be the effect of such contract; consequently it cannot be adjudged usurious. On this point several authorities were relied on by the counsel on each side, some of which will be more particularly noticed under the next which is a kindred exception.
The seventh assignment insists, “That the Court erred in determining the law to be in favor of the plaintiffs, on the several facts arising on the agreed case.”
The facts thus agreed in substance are, that at the time of discounting the note, the Bank retained interest by way of discount for ninety days, and three days of grace, exclusive of the day on which the discount was allowed, on the whole amount for which the note was discounted. On the second day of grace, the note was virtually renewed according to the custom of the Bank, not by the actual substitution of a new note, but by paying the usual curtailment, together with the interest by way of discount for the succeeding ninety days, and three days of grace thereafter; whereby interest b}' way of discount was reserved for the day on which the note was discounted, as well as the day on which it was thus renewed, and that this course is consistent with the universal custom of the Bank, which is to take discount at the rate of six per cent per annum for three hundred and seventy-two days in each year, and that these customs and practices formed part of the original agreement. It is also agreed that a small sum of money remained in Bank as a deposite by W. 13. Gaines at the time of the issuance of the notice.
In states where the statutes have limited the legal interest generally at the same rate with the Bank discounts, and have declared any higher rate usury, or the contract void, we admit that the question might be materially different. a But I should think the principle by no means clear, that under the circumstances of this case, the contract would be usurious or otherwise void for illegality.
The illegality is supposed to consist in taking the dis-, count at the rate of six per cent, in advance, and calcu-la ling the same including the days of grace, for two days longer than the forbearance allowed between the renew[469] als as required. The practice of retaining the discount in advance, under similar circumstances, has been estab-lis’ned by a long course of banking usage ; and bad received the sanction of the supreme tribunal of the Union before the granting of this charter, and the right may therefore be supposed to have entered into the spirit and intention of it. In the case of Fleckner against the United States’ Bank, a the Supreme Court says, “the practice taking bank discounts in advance is believed to be universal, and probably few if any charters, contain an express provision, authorizing in terms the deduction of the interest in advance, upon making loans or discounts. It has always been supposed, that an authority to discount or make discounts did, from the very force of the terms, necessarily include an authority ‘ to take interest in advance. And this is. not only the settled opinion among professional and commercial men, but stands approved by the soundest principles of legal construction; indeed we do not know in what other sense the word discount is to be interpreted. Even in England, where no statute authorises bankers to make discounts, it has been solemnly adjudged, that the taking of interest in advance by bankers, upon loans in the ordinary course of business, is not usurious.” But it is contended that the language of this charter is different; that it only authorizes the Bank to discount at a rate of interest not exceeding six per cení per annum, and does not authorize it to discount paper at the same rate of discount. This appears to be a refinement that cannot be sustained. It is the import of the verb “to discount,” connected with the nature of banking transactions, that confers the right to retain the premium in advance, and it can. be nothing else than interest in the way of discount. With respect to the additional days beyond the actual loan, it is to be observed, that if the debtor did not prefer other terms, he was at liberty to extinguish the debt on the last day of grace, which would remove all the objections except that the day of discounting as well as the last day of grace, are both included in the computation. This objection, from the effect produced, would seem to fall within the influence of the maxim de minimus non curat lex: when too it is found consistent with the general usage of banks, as is believed to be the fact, and that the necessity of it results from, the policy of discounting for ninety days, which is more [470] convenient to borrowers than a shorter' time, the objeo tion wouid seem to occupy narrow ground. Theneces-sity of having regular meetings ol" the board for the pUrp0se Qr discounting at stated periods, and that these should be on the same fixed day of the week, is dictated by many considerations. It is impracticable, in the computation of time, to divide the year into equal quarters, and have this stated discount daj? always on the last day of grace, for notes previously discounted. Hence this banking usage is found convenient and necessary to enable debtors to obtain the benefit of renewal, in preference to paying off their debts on the next day. It may in fact be viewed as the virtual provision of a fund by the debtor, a day or two in advance, to meet his debt at maturity ; and is not by us considered ah illegality affecting the validity of the contract.
Note. On the point relative to the mode of taking advantage ofthein"-compotency of the Judge below, the c. unsel for the appellant prayed a rehearing'; stating that this question had not been pressed in argument, as it was supposed by tht m not property raised, and of no serious difficulty under the admission made in the record. 1 hey urged that the remedy by prohibition could not in this case and many others be applied. In suits instituted by the Bank, the remedy is peculiar; the chfendanl below in those cases can have no opportunity to procure a prohibition. It is to be observed that the notice is issued by the Bank, and not by the Court or its clerk; it is an aot in pais. The first act of the Court is the heaving of the. motion; it is then only that the Court is called'upon to act, and if the Judge will ad ,1 hen- is no remedy. if an application were made to a Circuit Judge for a prohibition, it would be a sufficient answer to say “tie will not presume prematurely that the Judge will violate the law and sit in Ins own cause, i rue, a notice has issued, but we are bound to presume the. Court will not hear the motion; the Court has yet done iv> act shewing that it " ould.” A prohibition docs not lie before appearance to a suit below. a
[470] Eighth assignment. The judgement was for more than the law allows. This is already answered, except as to the deposite. A depositéis not applicable to any payment, or available as a set off against the Bank, without a check, or other authority directing it, by the person in whose favor it exists, which was not here given.
Ninth assignment. Error in proceeding to judgement against Lyon, till a discontinuance had been entered as to the other defendants. A proceeding by motion, on notice, is essentially different in • this respect, from a common law suit. In this form, the notice is no part of the record, but evidence only. If not served or not proceeded on, it is a nullity. . An alias could not issue on it, nor would a discontinuance be necessary to authorize a proceeding de novo. The motion recognized only the person notified as a party defendant. No express discontinuance was necessary.
Judgement affirmed.
The Chief Justice not sitting.
No plea in this case would lie to the jurisdiction of the Court; the Court has jurisdiction; the objection is pi rsonal to the Judge It is believed that in all the cases where prohibitions have been awarded, there was a want of jurisdiction in the inferior Court After sentence no prohibition lies, except where the want of jurisdiction in the Court below appears of record. b Where a difficulty arises at the trial only, there is no opportunity for a prohibition. Suppose a judge of the County Court should refuse to transfer a suit in which he was counsel to the Circuit Court as the sta ute directs, but should proceed to try it; is the remed by prohibition ? How could it bo obtained? There is no want of jurisdiction in the Court. If it appear of record that, a motion to transís r the cause was made and overruled, would it not be erroi ? Again, suppose the case in a Circuit Court of a motion made against a sheriff in favor of the presiding Judge, or m a case wherein he was interested, for tailing to pay over money collected on an execution, on one day’s notice under 'he statute; or the case of a motion against a co-security as given by statute, and the fudge should ersist in sitting; no single Judge could grant a prohibí.ion, and the Supreme Court is not in session. A prohibition cannot be obtained, and Judgement will be rendered If the facts appear of record, will not the judgement be reversed for error? If again, when a prohibition lias issued, the Judge refuses to obey it hut proceeds to give judgement; is such judgement valid? True, he may be attached for a contempt, but in all those eases, is not the judgement rendered void, and reversible on error? If not, there are agreat variety of cases where there is no remedy at all at law.
The Court upon consideration were satisfied with the opinion delivered, and the motion for rehearing- was denied.