Thompson v. Real Estate Bank

5 Ark. 59

• Court: Supreme Court of Arkansas
• Decided: January 15, 1843
• Status: Published

Opinion

By the Court,

Lacy, J.

All the points, except one, have heretofore been ruled against the plaintiffs in error, by this Court, and that one was correctly decided by the Court below. It was not error to discontinue the cause, as to one of the defendants on the record, his death being previously suggested, and the discontinuance not excepted to. It was held, in Sumner vs. Ford & Co., 3 Ark. Rep. 389, that, in an action against the maker of a promissorj' note, or an acceptor of a bill of exchange, made payable at a particular place, it was not necessary to aver or prove presentment or demand, at that place; and it was decided, in McFarland vs. State Bank, 4 Ark. Rep., that the rate of interest prescribed by act of 3d of March, 1839, does not apply to cases of the Real Estate Bank; and it was settled, in McKiel et al. vs. Real Estate Bank, at the last term of this Court, that, where the defendants plead usury, and referred, in their plea, to the charter and the statute, stating a rate of interest different from the one therein prescribed, such a plea would be adjudged bad, on demurrer. The reason is, the pleader was bound to set out the true rate of interest, in his plea, which the Bank, by law, was authorized to take. He must aver, in his plea, facts which show that, according to the law of the land governing the contract, the interest charged and taken is usurious. This, the plaintiffs in error have failed to do. Therefore, the demurrer was rightly sustained. Judgment affirmed.