
    Anon W. Killingsworth et als. vs. The Commercial Bank of Rodney.
    By the charter of the Commercial Bank of Rodney it was provided that on notes having more than twelve months to run the bank might charge eight per cent, discount; K. being in debt to the bank and his note past due,he executed a new note in renewal of the old; the new note was dated November 1, 1839, and was payable twelve months after November 5, 1839, but was not discounted for several weeks after its date, when the bank discounted it at eight per cent, from its date : Held, that the discount was usurious, it must be regulated according to the actual time the note had to run when the discount was made, and not by the date of the note.
    Whether, where a bank is allowed by its charter to charge seven per cent, per annum discount on notes having twelve months or less to run ; and such a note, after discount, has become due, it bears interest at eight per cent, according to the legal rate of interest on ordinary contracts or only seven,— Qucere ?
    
    ERROR from the circuit court of Jefferson county; Hon. 0. C. Cage, judge.
    This was an action of assumpsit brought by the Commercial Bank of Rodney against Anon W. Killingsworth, Jane Killings-worth and N. Jefferies, on a promissory note for fifty- seven hundred and twenty-six dollars and sixty-five cents, bearing date November the 1st, 1839, and payable twelve months from and after the fifth day of November, 1839. The general issue was plead, and the jury found for the defendants, but a new trial was granted.
    On the new trial the jury found for the plaintiff and assessed the damages at six thousand five hundred and thirty-eight dollars and eighty-one cents. The defendants moved again for a new trial, and the motion being overruled, the defendants filed the following bill of exceptions, viz.:
    “ Be it remembered, that after the trial of this cause, and the jury had returned into court their verdict in favor of said plaintiff, and before judgment was rendered thereon, the defendants by their counsel moved the court to set aside the said verdict and to grant a new trial of said case for the following reasons : — 1st. Because the verdict of the jury is contrary to the law and evidence. 2d. The court on behalf of the plaintiff mischarged the law to the jury. The following is all the testimony which was introduced and permitted to go to the jury upon the trial of said cause. The plaintiff produced and read to the jury a promissory note in the following words and figures, to wit:
    “$5726^ Rodney, Miss. Nov. 1, 1839.
    “ Twelve months from and after the fifth day of November, instant we or either of us promise to pay to the “ Commercial Bank of Rodney or order fifty-seven hundred and twenty-six dollars and sixty-five cents, value received, negotiable and payable at its banking-house.
    “To.cover 5268.52 due § Nov. 1839, 458.13, discount inclusive, to | Nov. 1840.
    “Anon W. KillingswoRTH,
    Jane Killingswoeth,
    “ 432.” N. Jeffeeies.”
    “ The plaintiff here closed his testimony. The defendants then introduced as a witness on their behalf Josiah Lawton, who testified, that previous to the 5th day of November, 1839, one William Beaty delivered to the plaintiff to be discounted a note for about $7000, which fell due on the 5th day of November, 1839, but at what time the note was delivered witness could not recollect, nor could witness recollect whether the same was a note of A. W. Killingsworth, or of said Beaty. That the plaintiff discounted the note for about $7000. That when the same became due the said Anon W. Killingsworth delivered to one John G. James some cotton, which was to be sold and the proceeds to be applied to the payment in part of the said note of $7000, and to the payment in part of a note of James Kil-lingsworth to the plaintiff which fell due some time in December, 1840, and left with the plaintiff the note sued on in this action with the amount and the time when payable in blank. That after the proceeds of said cotton were paid to the bank, it left a balance due on said note for $7000 of $5268 52, due as of the 5th day of November, 1839, and that the witness filled the blanks left for the amount of said note and the time it had to run by making it payable twelve months after the fifth day of November, 1839, for the sum of $5726 68, including in the note $45813 as the discount thereon for twelve months; that the note was not discounted for four or five weeks after its date.”
    Among other instructions the court gave the following: “ After a note due to the bank passes maturity, it bears eight per cent, interest, and it was lawful to renew such a note at the same rate of interest.” Other instructions were also given; but it is not deemed necessary to notice them, as the court of errors and appeals did not pass upon them.
    The defendants sued out this writ of error.
    Clark, for plaintiff in error.
    It is contended that the fourth charge given to the jury that after a note due to the bank passes maturity, it bears eight per cent, interest and it was lawful to renew such note at the same rate of interest, was too broad and calculated to mislead the jury. If this were true, the bank could discount a note having one month to run at seven per cent., and renew the same from month to month at eight per cent, in plain violation of the spirit and letter of the charter.
   Per Curiam.

The note sued on was dated 1st November, 1839, payable twelve months after the 5th November, 1839, but not discounted for several weeks afterwards. It was given in renewal of a previous note, which was over due, and it would seem was discounted at eight per cent, instead of seven per cent.

The court charged the jury that after a note due to the bank passes maturity, it bears eight per cent, interest, and it was lawful to renew such note at the same rate of interest.

This was erroneous. Even if the first proposition contained in the instruction be true, to wit, that after maturity notes to the bank drew eight per cent., about which we give no opinion, still the renewed note was a new contract, and could not entitle the bank to eight per cent., unless it had more than twelve months to run. The charter allows eight per cent, on loans having more than twelve months to run. This note had not that time. Although it was dated 1st of November, and payable twelve months after the 5th of November, it was not discounted until some time afterwards. The discount must be regulated according to the time it had to run from the date of discount.

Judgment reversed and cause remanded.  