
    James C. Hays, et al. vs. The Bank of the State.
    The latv presumes all persons, who get accommodations from a bank, cognisant of all the provisions of its charter, which provisions fix the law of the contract»
    A party, to entitle himself to a renewal of his note in the Bank of the State, must tender the interest on the sum to be renewed, in advance; if he do not, judgment may rightly be confessed, on the power of attorney which accompanies the note.
    The act of 1801, cfa. 19, requiring, that “where a person has a bond, with power* toconfessa judgment, &c.,before he shall do so,shall give the debtor ten days notice, &c.” does not apply to cases, where judgments are confessed by the president of the Bank of the State, upon powers accompanying notes to that institution.
    The courts are bound to carry into effect, all statutes prescribing summary proceedings, where they do not conflict with the constitution.
    On the 30th day of October, 1824, James C. Hays, with George W. Gibbs and Thomas Claiborne, his securities, executed their joint note to the bank of the state of Tennessee at Nashville, payable eighty-eight days after the date thereof. At the May term, 1825, of the Davidson circuit court, a judgment, by confession, was taken against said parties, as evidenced by the following entry upon the record of said court: “This day came the said James C. Hays, George W. Gibbs and Thomas Claiborne, by Joseph Philips, esq., their attorney in fact, and confess that they cannot deny but that they owe the said bank fifteen hundred dollars, the amount of said hill single, (which is set out therein,) together with interest thereon, from the time said note fell due, until this day, amounting to forty-one dollars and twenty-five cents. It appearing to the satisfaction of the court, that the said Joseph Philips has authority to confess judgment, in favor of said bank, against said Hays, Gibbs and Claiborne, on said hill single, by virtue of a power of attorney, from them to the said Joseph, which is now to the court shown. It is, therefore, considered, &c.”
    Subsequently to the rendition of said judgment, upon the petition of the defendants therein, a writ of error was awarded them, and the following errors are assigned:
    i st. It does not appear by the record, that ten days’ notice was given of the intention to confess judgment on said power of attomey.
    2d. It does not appear, that sixty days’ notice was given, that the whole sum, including interest, would he required' at the expiration of the loan.
    3d. It does not appear, that any proof was made of the execution of the note, or power of attorney.
    
      A. Hays and W. L. Brown for plaintiffs in error.
    
      Washington for defendants in error.
   Peck, J.

delivered the opinion of the court. The errors assigned, will he noticed in their order. And first, was it a prerequisite to taking the judgment, that ten days’ notice should have been given?

These proceedings were had, by virtue of the act of 1820, ch. 7, sec. 10, incorporating the bank of the state of Tennessee. The section referred to, provides, that “said bank shall discount bills of exchange and notes, with two or more good securities, who shall be jointly and severally bound; and shall have power to make loans to citizens of this state, in the nature of discounts, on real or personal property, secured by mortgage, and power of attorney to confess judgment, on default of payment. Provided, that loans shall never be for a longer term than one year, nor for more than at the rate of six per cent, interest; and that no loan shall be renewed, unless the interest on the reloan shall be paid in advance; and provided, that the directors shall not call in more than one tenth, at the time the same shall become due, without giving sixty days’ notice. And all persons failing to make payment of the principal and interest, as aforesaid, shall be deprived of future credit in said bank, and judgment shall immediately be entered up on the power of attorney given, as by this act required; and execution shall issue for the whole amount.”

The 21st and 22d sections of the act. provides, that “the president and directors, or agents in the several counties, may loan, upon personal security, renewable every three months, and upon real security for six months, or for alonger period, not exceeding twelve months; .and that no loan shall be made for a larger sum than 500 dollars, or upon any other condition than those expressed.”

By an attentive examination of these provisions, it will be seen, that they are all directory to the president and directors of the bank. They, to be sure, are, to a certain extent, limited in the exercise of the franchise committed to their care. The act has employed the most special words of caution, in relation to the funds which are to be loaned.

The law presumes all persons, who get accommodations ■ •in said bank, to be cognisant of all the provisions of its char- \ ter; and a strict enforcement of all obligations assumed to the bank, either by coercing payment, or otherwise, as exi- j gencies may require, is a matter of right and necessity; off all of which, the directory, from the nature of the institu-l tution, must be the judges. ' , ‘

In the case before the court, the money was due; it is not pretended, that there was even an implied obligation for a renewal of the loan — no application was made to renew the note, and consequently no tender of the interest upon the whole sum, or any portion of the principal, as may have been demanded, or the charter required. Supposing it then to be the right of the bank to proceed against the plaintiffs in error, we perceive no error in proceeding to judgment, without the notice of ten days, insisted upon in argument. It is certainly not expressed as necessary, and ■is believed not to have been in the contemplation of the legislature. Indeed such a provision would, in many instances, have precluded a judgment for thi-ee months; as, when a note fell due just immediately preceding the sitting of a county court; in many of those cases, notice could not be given, and the subject acted upon at the approaching term, for the want of time between the service of the notice, and the adjournment of the court.

The act of 1801, ch. 19, has no application to a case like the present — each act has subject matter upon which to operate, wholly dissimilarin its character. To perceive this, it is only necessary to compare the different acts with each ,, other.

Secondly. “Sixty days notice was not given, that the whole sum would be demanded, when the note fell due.”

A part of what has been said, in answer to the first objection, applies equally to this. The time of payment had pas. sed — was there any agreement to renew? If there were, did the plaintiffs in error offer to renew, and tender the interest in advance? In short, was this a case of lending, where the rule, as to sixty days’ notice, could apply? All we can know of the contract, is from the face of the note; and from that, no such implication arises. .

Thirdly. “That there was no proof of the authority to confess a judgment, &c.”

The record is explicit on this point — its language is, “it appearing to the satisfaction of the court, that said Joseph Philips has authority to confess a judgment, &c.,by virtue of a power of attorney from them to the said Joseph, which is now to the court shown, &c.” This is stating upon the record, the legal inference from the evidence, and is expressed in accordance with the most approved forms. All that was proved, need not be put upon the record; but in all cases, the conclusion from the evidence, as found by the 'triers, is sufficient. From the language used in this record, we are bound to infer, that proof was made of the execution of the power of attorney; supposing that proof to, have been made, then in the person of the attorney in fact, the plaintiffs in error were before the court confessing judgment. Qui facit per aliiim, facit per se.

As to this summary mode of proceeding, whether politic or not, is not for us to determine; so far as it does not conflict with those constitutional privileges which belong to the citizen, we are as much bound to carry into effect the will of the legislature in reference to them, as any other subject.

The case of the bank of Columbia vs. Oakley, 4 Wheaton 240, goes vastly further than this case, and in principle, settles this question. By the charter of that bank, for the recovery of notes indorsed, being made negotiable there; on default of payment, the clerk of the general court, on application of the president of said bank, was directed to issue a capias ad satisfaciendum, fieri facias or attachment, by way of execution.

When that case went before the supreme court of the United States, we may well suppose, that much was urged against the constitutionality of a proceeding so summary, as not to require even the judgment of a court. Yet, on a patient and full investigation before that court, that provision of the charter was held to be constitutional. . The case before the court, is very materially different; the power to confess judgment, was executed at the time of making the contract — it was a part of the contract; the charter of the bank, when pursued, fixes the law of the contract, which being violated by the default of the plaintiffs in error, and pursued, with certainty to a common intent, by those on whom the duty devolved, to a judgment.

We think it should be affirmed.  